2261324 Manitoba Ltd. v. Domo Gasoline Corp., (1995) 106 Man.R.(2d) 91 (QB)

• Judge: MacInnes, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 04, 1995
• Jurisdiction: Manitoba
• Citations: (1995), 106 Man.R.(2d) 91 (QB)

2261324 Man. v. Domo Gasoline (1995), 106 Man.R.(2d) 91 (QB)

MLB headnote and full text

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

(Suit No. CI 95-01-91415)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

MacInnes, J.

December 4, 1995.

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 denied the motion.

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 Mani­toba Court of Queen's Bench con­cluded that if the owner succeeded at trial, dam­ages would be inadequate - However, the court 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 gas bar operator - See para­graphs 10 to 34.

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 Manitoba Court of Queen's Bench denied the motion where there were genu­ine issues for trial respecting breach of lease and negligence - The court 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 - See paragraphs 10 to 25.

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 ].

Cases Noticed:

Rylands v. Fletcher (1868), L.R. 8 H.L. 330, refd to. [para. 10].

Pereira v. Smith (1993), 88 Man.R.(2d) 171; 51 W.A.C. 171 (C.A.), consd. [para. 27].

Hubbard v. Vosper, [1972] 2 Q.B. 84 (C.A.), consd. [para. 33].

Authors and Works Noticed:

Sharpe, R.J., Injunctions and Specific Performance (2nd Ed. 1992), pp. 2-32 [para. 28], 2-34 [paras. 28, 30].

Counsel:

R.M. Swystun, for the plaintiff;

D. Hill, for the defendant.

This motion was heard before MacInnes, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the follow­ing judgment on December 4, 1995.