Busse Farms Ltd. v. Federal Business Development Bank, (1998) 172 Sask.R. 133 (CA)

• Judge: Bayda, C.J.S., Vancise and Wakeling, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: Tuesday December 01, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 172 Sask.R. 133 (CA)

Busse Farms Ltd. v. FBDB (1998), 172 Sask.R. 133 (CA);

   185 W.A.C. 133

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. DE.044

Busse Farms Ltd. (plaintiff/appellant) v. Federal Business Development Bank (defendant/respondent)

(Docket No. 2607)

Indexed As: Busse Farms Ltd. v. Federal Business Development Bank

Saskatchewan Court of Appeal

Bayda, C.J.S., Vancise and

Wakeling, JJ.A.

December 1, 1998.

Summary:

The plaintiff purchased foreclosed com­mercial property from the Federal Business Development Bank, intending to run it for several years then sell it at a profit. Unknown to anyone, the property was con­taminated by an underground fuel leak, which had to be cleaned up under the Envi­ronmental Maintenance and Protection Act. The plaintiff, after unsuccessful efforts to clean up the contamination, wanted to rescind the contract or receive damages under s. 13(3) of the Act as compensation. The Bank declined and cleaned up the prop­erty itself at a cost of $65,000. The plaintiff sold the property, not realizing the profit it expected. The plaintiff sued for damages in excess of $200,000, claiming the Bank was liable for selling it contaminated property.

The Saskatchewan Court of Queen's Bench, in a judgment reported in 150 Sask.R. 305, dismissed the action. The contami­nation was a latent defect which the Bank had no knowledge of. The purpose of the Act was not to regulate commercial transac­tions between private parties, but to ensure pollu­tion was prevented or cleaned up. The plain­tiff appealed.

The Saskatchewan Court of Appeal dis­missed the appeal on the ground that the Bank was neither an "owner of the pollutant" nor the "person having control of the pollu­tant" for the purposes of s. 13(3) of the Act, as those phrases were defined in ss. 2(r) and 2(t) of the Act.

Pollution Control - Topic 9318

Enforcement - General - Liability for compensation by owner or person control­ling pollutant - Section 13(3) of the Envi­ronmental Management and Protection Act entitled any person suffering loss or dam­age as a result of discharge of a pollutant to compensation from the "owner" or "person having control" of the pollutant - The plaintiff purchased foreclosed com­mercial property from the Federal Business Development Bank in 1989, intending to run it for several years then sell it at a profit - Unknown to any­one, the property was contaminated by an continual under­ground fuel leak which commenced in 1980 - The plaintiff sold the prop­erty for less profit than expected and claimed compensation from the Bank under s. 13(3) - The Saskatchewan Court of Appeal affirmed dismissal of the action on the ground that the Bank was not an "owner" or "person in control" of the pollutant for the purposes of s. 13(3), as defined in ss. 2(r) and 2(t) of the Act - The Bank was not a "successor" or "assignee" to the sole statutory "owner" (s. 2(r)), nor did the Bank have "control" over the pollutant.

Sale of Land - Topic 8631

Remedies of purchaser - For quality defects - Latent defects - The plaintiff purchased foreclosed commercial property from the Federal Business Development Bank, intending to run it for several years then sell it at a profit - Unknown to any­one, the property was contaminated by an underground fuel leak, which had to be cleaned up under the Environmental Main­tenance and Protection Act - The plaintiff, after unsuccessful efforts to clean up the contamination, wanted to rescind the con­tract or receive damages under s. 13(3) of the Act as compensation - The Bank declined and cleaned up the property itself at a cost of $65,000 - The plaintiff sold the prop­erty, not realiz­ing the profit it ex­pected - The plaintiff sued for damages in excess of $200,000, claiming the Bank was liable for selling it contami­nated property -The trial judge dismissed the action - The con­tamination was a latent defect which the Bank had no knowledge of - The Sas­katchewan Court of Appeal affirmed dis­missal of the action, but on the ground that the Bank was neither an "owner of the pollu­tant" nor the "person having control of the pollu­tant" for the purposes of s. 13(3) of the Act, as those phrases were defined in ss. 2(r) and 2(t) of the Act.

Cases Noticed:

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 21].

National Trust Co. v. Mead, [1990] 2 S.C.R. 410; 112 N.R. 1; 87 Sask.R. 161, refd to. [para. 41].

Wentworth (County) v. Hamilton Radial Electric Railway Co. et al. (1917), 54 S.C.R. 178, refd to. [para. 43].

New Brunswick Telephone Co. v. John Maryon International Ltd. et al. (1983), 43 N.B.R.(2d) 469; 113 A.P.R. 469; 141 D.L.R.(3d) 193 (C.A.), refd to. [para. 67].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 68].

Toffoli v. Rozenhart (1992), 1 Alta. L.R.(3d) 104 (Q.B.), refd to. [para. 69].

Statutes Noticed:

Court of Appeal Act, R.S.S. 1978, c. C-42, sect. 8 [para. 22].

Environmental Management and Protection Act, S.S. 1983-84, c. E-10.2, sect. 2(r), sect. 2(t) [para. 20]; sect. 13(1), sect. 13(2) [para. 61]; sect. 13(3)(a)(i), sect. 13(4) [para. 1]; sect. 13(5), sect. 13(6), sect. 13(7), sect. 13(8) [para. 60].

Authors and Works Noticed:

Black's Law Dictionary (6th Ed. 1990) [para. 41].

Côté, Pierre-André, The Interpretation of Legislation in Canada, p. 207 [para. 62].

Webster's Third New International Dic­tionary (1971) [para. 41].

West's Legal Thesaurus/Dictionary (1985) [para. 41].

Counsel:

K. Stevenson, Q.C., for the appellant;

K. Prisciak, for the respondent.

This appeal was heard on January 22, 1998, before Bayda, C.J.S., Vancise and Wakeling, JJ.A., of the Saskatchewan Court of Appeal.

On December 1, 1998, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Bayda, C.J.S. (Vancise, J.A., concurring) - see paragraphs 1 to 50;

Wakeling, J.A. - see paragraphs 51 to 72.