Strand Theatre Ltd. v. Prince Albert (City), (2014) 442 Sask.R. 97 (CA)

• Judge: Richards, C.J.S., Whitmore and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 27, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 442 Sask.R. 97 (CA);2014 SKCA 85

Strand Theatre Ltd. v. Prince Albert (2014), 442 Sask.R. 97 (CA);

    616 W.A.C. 97

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AU.024

Strand Theatre Ltd. (appellant/plaintiff) v. City of Prince Albert (respondent/defendant)

(CACV2132; 2014 SKCA 85)

Indexed As: Strand Theatre Ltd. v. Prince Albert (City)

Saskatchewan Court of Appeal

Richards, C.J.S., Whitmore and Ryan-Froslie, JJ.A.

August 19, 2014.

Summary:

The plaintiff owned property in an industrial subdivision. Between 1965 and 1997, the defendant city had operated landfills nearby or adjacent to the plaintiff's property. The plaintiff listed its property for sale and, in 2000, accepted an offer of $325,000. A satisfactory environmental report was required to obtain financing. The property sale did not proceed. The plaintiff offered the property to the city for the same price. When the city refused, the plaintiff commenced the within action, seeking an order requiring the city to purchase the property and reimburse the plaintiff for property taxes.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2011), 374 Sask.R. 275, dismissed the action. The plaintiff appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The Saskatchewan Court of Appeal stated, "The verbatim incorporation by trial judges in their judgments of portions of the written submissions of the parties is not a practice to be encouraged. In this case, the trial judge did this on more than one occasion.... The amount of material copied by him, however, was minimal given the length of the judgment which spans 28 pages. In the circumstances, the judge's use of the [defendant's] written submissions is not a ground for appellate intervention " - See paragraph 33.

Municipal Law - Topic 1861

Liability of municipalities - Nuisance - General - [See Torts - Topic 1004 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding finding of fact - The plaintiff owned property in an industrial subdivision - Between 1965 and 1997, the defendant city had operated landfills nearby or adjacent to the plaintiff's property - The plaintiff's action in nuisance against the city alleged that chemicals were being carried by groundwater from the city's former landfill to the plaintiff's property and that this had negatively impacted the plaintiff's ability to mortgage or sell the property - The action was dismissed - The Saskatchewan Court of Appeal dismissed the plaintiff's appeal - The court rejected the plaintiff's assertion that the trial judge's findings of fact were not supported by the evidence or were contrary to the evidence - The standard of review was "palpable and overriding error" - The findings were supported by the evidence - See paragraphs 22 to 50.

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - [See Courts - Topic 583 ].

Torts - Topic 1004

Nuisance - General principles and definitions - Actionable nuisance - What constitutes - The plaintiff owned property in an industrial subdivision - Between 1965 and 1997, the defendant city had operated landfills nearby or adjacent to the plaintiff's property - The plaintiff's action in nuisance against the city alleged that chemicals were being carried by groundwater from the city's former landfill to the plaintiff's property and that this had negatively impacted the plaintiff's ability to mortgage or sell the property - The action was dismissed - The Saskatchewan Court of Appeal dismissed the plaintiff's appeal - In order to establish nuisance, the plaintiff had to prove that the city was interfering in a "substantial and unreasonable manner" with the plaintiff's use and enjoyment of the property - The trial judge made findings of fact that were fatal to the claim, including that there was no evidence of chemicals migrating and, if there was any such migration, the amount of chemicals was minuscule and would not affect the plaintiff's use and enjoyment of the property - See paragraphs 51 to 59.

Torts - Topic 1270

Nuisance - Particular nuisances - General - Soil contamination - [See Torts - Topic 1004 ].

Torts - Topic 1715

Nuisance - Practice - Evidence and proof - The plaintiff owned property in an industrial subdivision - Between 1965 and 1997, the defendant city had operated landfills nearby or adjacent to the plaintiff's property - The plaintiff's action in nuisance against the city alleged that chemicals were being carried by groundwater from the city's former landfill to the plaintiff's property and that this had negatively impacted the plaintiff's ability to mortgage or sell the property - The action was dismissed - The Saskatchewan Court of Appeal dismissed the plaintiff's appeal - In order to establish nuisance, the plaintiff had to prove that the city was interfering in a "substantial and unreasonable manner" with the plaintiff's use and enjoyment of the property - The court rejected the plaintiff's assertion that the trial judge had required it to establish "environmental contamination" in order to prove nuisance and that this was a higher standard than interference in a "substantial and unreasonable manner" - While the judge had used the words "contaminated" and "contamination", his final determination was that there was no "substantial and unreasonable" interference - See paragraphs 60 and 61.

Torts - Topic 1715

Nuisance - Practice - Evidence and proof - The plaintiff owned property in an industrial subdivision - Between 1965 and 1997, the defendant city had operated landfills nearby or adjacent to the plaintiff's property - The plaintiff's action in nuisance against the city alleged that chemicals were being carried by groundwater from the city's former landfill to the plaintiff's property and that this had negatively impacted the plaintiff's ability to mortgage or sell the property - The action was dismissed - The Saskatchewan Court of Appeal dismissed the plaintiff's appeal - The court rejected the plaintiff's assertion that the trial judge had erred by requiring the plaintiff to prove its case to a "scientific certainty" rather than on the balance of probabilities - The trial judge stated that the plaintiff had to prove its claim "on a balance of probabilities" - It was presumed that this was the standard that was applied - Nothing in the judgment suggested otherwise - See paragraphs 67 to 69.

Cases Noticed:

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 21].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 21].

Cojocaru v. British Columbia Women's Hospital and Health Center et al., [2013] 2 S.C.R. 357; 445 N.R. 138; 336 B.C.A.C. 1; 574 W.A.C. 1; 2013 SCC 30, refd to. [para. 33].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 46].

Rylands v. Fletcher (1868), L.R. 3 H.L. 330 (H.L.), refd to. [para. 52].

Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), [2013] 1 S.C.R. 594; 441 N.R. 342; 301 O.A.C. 281; 2013 SCC 13, refd to. [para. 54].

Thompson-Schwab v. Costaki, [1956] 1 W.L.R. 335 (C.A.), refd to. [para. 55].

Counsel:

Gordon R. McKenzie, Q.C., for the appellant;

Mitchell Holash, Q.C., for the respondent.

This appeal was heard on May 27, 2014, by Richards, C.J.S., Whitmore and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. On August 19, 2014, Ryan-Froslie, J.A., delivered the following judgment for the court.