2261324 Manitoba Ltd. v. Domo Gasoline Corp., (1996) 110 Man.R.(2d) 158 (CA)

• Judge: Scott, C.J.M., Philp and Helper, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 01, 1996
• Jurisdiction: Manitoba
• Citations: (1996), 110 Man.R.(2d) 158 (CA)

2261324 Man. v. Domo Gasoline (1996), 110 Man.R.(2d) 158 (CA);

    118 W.A.C. 158

MLB headnote and full text

2261324 Manitoba Ltd. (appellant/plaintiff) v. Domo Gasoline Corporation Ltd. (defendant/respondent)

(Suit No. AI 96-30-02578)

Indexed As: 2261324 Manitoba Ltd. v. Domo Gasoline Corp.

Manitoba Court of Appeal

Scott, C.J.M., Philp and Helper, JJ.A.

May 1, 1996.

Summary:

A mall owner sued the operator of a gas bar for breach of a lease, negligence and nuisance respecting environmental contami­nation. The owner applied for a mandatory interlocutory injunction compelling the operator to clean up the contamination sur­rounding the gas bar and for summary judg­ment and a permanent order compelling clean-up.

The Manitoba Court of Queen's Bench, in a decision reported at 106 Man.R.(2d) 91, denied the motion. The owner appealed.

The Manitoba Court of Appeal dismissed the appeal.

Injunctions - Topic 1610

Interlocutory or interim injunctions - General principles - Circumstances when injunction will not be granted - Mortgag­ees refused to renew a mall's mortgages because of soil contamination at a gas bar - The contamination was impeding mall development and negotiations for the mall's sale - The mall owner sued the gas bar operator and sought a mandatory inter­locutory injunction to compel clean-up (which would require $560,000 and 11 weeks' closure of the gas bar) - The trial judge concluded that if the owner suc­ceeded at trial, damages would be inad­equate - However, the trial judge denied the injunction and ordered an expedited trial to protect the owner's interest - An injunction would have given the owner what was tantamount to final judgment without having to prove its case at trial - There were serious issues to be tried and the balance of convenience favoured the operator - The Manitoba Court of Appeal dismissed the owner's appeal.

Injunctions - Topic 2307

Mandatory injunctions - To restore land to original condition - [See Injunctions - Topic 1610 ].

Injunctions - Topic 2309

Mandatory injunctions - Interim or inter­locutory mandatory injunctions - [See Injunctions - Topic 1610 ].

Injunctions - Topic 2313

Mandatory injunctions - Sufficiency of damages in lieu of injunction - [See Injunctions - Topic 1610 ].

Practice - Topic 5708

Judgments and orders - Summary judg­ments - Bar to plaintiff's application - Existence of issue to be tried - A mall owner sued a gas bar operator for breach of a lease, negligence (by application of the rule in Rylands v. Fletcher) and nui­sance respecting environmental contamina­tion - The owner sought summary judg­ment and a permanent order compelling the operator to clean up the contamination - No evidence that the operator's storage tanks had leaked - Possibility that con­tamination occurred from spillage occur­ring in the gas bar's day-to-day operations - The trial judge denied the motion where there were genuine issues for trial respect­ing breach of lease and negligence - The trial judge stated that neither the rule in Rylands v. Fletcher nor nuisance were available, where the owner consented to the bringing of the dangerous substance upon its premises - The Manitoba Court of Appeal dismissed the owner's appeal.

Torts - Topic 1262

Nuisance - Particular nuisances - Gasoline or oil - [See Practice - Topic 5708 ].

Torts - Topic 2004

Strict liability - General - Application of rule in Rylands v. Fletcher - [See Practice - Topic 5708 ].

Counsel:

J.M. Scurfield, Q.C., and R.M. Swystun, for the appellant;

D.G. Hill, for the respondent.

This appeal was heard on May 1, 1996, before Scott, C.J.M., Philp and Helper, JJ.A., of the Manitoba Court of Appeal.

On May 1, 1996, Scott, C.J.M., delivered the following decision orally for the Court of Appeal.