Strand Theatre Ltd. v. Prince Albert (City), 2011 SKQB 209

• Judge: Acton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 27, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 209;(2011), 374 Sask.R. 275 (QB)

Strand Theatre Ltd. v. Prince Albert (2011), 374 Sask.R. 275 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JN.051

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

(2000 Q.B.G. No. 852; 2011 SKQB 209)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Acton, J.

May 27, 2011.

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 dismissed the action.

Municipal Law - Topic 1861

Liability of municipalities - Nuisance - General - 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 - Following completion of two reports, Saskatchewan Environment and Resource Management concluded that the property did "not appear to be significantly contaminated for use as a commercial/industrial site" with certain limitations - 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 property's 2010 value free of pollutants, contaminants or any environmental condition that might affect value was $970,000 - The Saskatchewan Court of Queen's Bench dismissed the action - The criteria for a private nuisance were not established - There was no evidence that the minute increases in chlorides, iron and other chemicals within the groundwater had originated from the city's landfill - The parameters measured were so minuscule that they could not reasonably have been expected to cause any injury or harm to the property - The city was not responsible for any abnormal sensitivities of the plaintiff - Even if the city was strictly liable and the chemical increases were caused by a migration from the city's landfill, given the property's current value, the plaintiff had not suffered any damage.

Torts - Topic 1004

Nuisance - General principles and definitions - Actionable nuisance - What constitutes - [See Municipal Law - Topic 1861 ].

Torts - Topic 1007

Nuisance - General principles and definitions - Private nuisance defined - [See Municipal Law - Topic 1861 ].

Torts - Topic 1043

Nuisance - Conditions precedent - Damages - [See Municipal Law - Topic 1861 ].

Torts - Topic 1270

Nuisance - Particular nuisances - General - Soil contamination - [See Municipal Law - Topic 1861 ].

Cases Noticed:

Thompson-Schwab v. Costaki, [1956] 1 W.L.R. 335 (C.A.), refd to. [para. 30].

Smith v. Inco Ltd., [2010] O.T.C. Uned. 3790; 76 C.C.L.T.(3d) 92; 2010 ONSC 3790, refd to. [para. 32].

Tock and Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181; 104 N.R. 241; 82 Nfld. & P.E.I.R. 181; 257 A.P.R. 181, refd to. [para. 37].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 37].

Berendsen v. Ontario (2009), 266 O.A.C. 39; 2009 ONCA 845, refd to. [para. 38].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333, refd to. [para. 38].

Royal Anne Hotel Ltd. v. Ashcroft, [1979] 2 W.W.R. 462 (B.C.C.A.), refd to. [para. 47].

Carmel Holdings Ltd. v. Atkins and Birnie (George H.) Ltd., [1977] 4 W.W.R. 655 (B.C.S.C.), refd to. [para. 48].

Smith Brothers Excavating Windsor Ltd. v. Camion Equipment & Leasing (Trustee of) (1994), 21 C.C.L.T.(2d) 113 (Ont. Gen. Div.), refd to. [para. 67].

Counsel:

James H.W. Sanderson, Q.C., for the plaintiff;

Mitchell J. Holash, Q.C., for the defendant.

This action was heard by Acton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on May 27, 2011.