Westfair Foods Ltd. et al. v. Domo Gasoline Corp. et al., (1999) 142 Man.R.(2d) 70 (CA)

• Judge: Scott, C.J.M., Philp and Helper, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 07, 1999
• Jurisdiction: Manitoba
• Citations: (1999), 142 Man.R.(2d) 70 (CA)

Westfair Foods v. Domo Gasoline (1999), 142 Man.R.(2d) 70 (CA);

    212 W.A.C. 70

MLB headnote and full text

Temp. Cite: [1999] Man.R.(2d) TBEd. DE.049

Westfair Properties Ltd. and Westfair Foods Ltd. (plaintiffs/appellants) v. Domo Gasoline Corporation Ltd. and Dominion Motors Limited (defendants/respondents)

(AI 99-30-04081)

Indexed As: Westfair Foods Ltd. et al. v. Domo Gasoline Corp. et al.

Manitoba Court of Appeal

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

December 7, 1999.

Summary:

At issue in this action by a landlord was the tenant's liability to return the leased property uncontaminated at the end of the tenancy. The tenant leased the premises for a retail gas operation and there was con­tamination from spilled and leaking gas over the 25 year lease term. The tenant had remedial work done to clean up the site to a level acceptable to Manitoba Environment. The landlord claimed that it was an implied term of the lease that the site be returned to its original pristine state.

The Manitoba Court of Queen's Bench, in a judgment reported 133 Man.R.(2d) 77, held that absent a specific provision in the lease, the tenant was not required to restore the land to its original condition. It was sufficient to restore the land to a condition which was acceptable to Manitoba Environ­ment. Further, the tenant was not liable for voluntary or permissive waste, where the contamination did not result from negligence by the tenant. The landlord appealed.

The Manitoba Court of Appeal dismissed the appeal.

Landlord and Tenant - Topic 1213

The premises - Repairs - By tenant - Extent of obligation (incl. environmental restoration) - The tenant leased premises for a retail gas operation and there was contamination from spilled and leaking gasoline over the 25 year lease term - The tenant had remedial work done to clean up the site to a level acceptable to Manitoba Environment for commercial development - The landlord claimed, on the basis of waste and an implied term of the lease, that the site had to be returned to its orig­inal pristine state - The trial judge held that absent a specific provision in the lease, the tenant was not required to restore the land to its original condition - It was sufficient to restore the land to a condition which was acceptable to Manitoba En­vironment - Further, the tenant was not liable on the basis of vol­untary or per­missive waste, where the contamination did not result from negli­gence by the tenant - The Manitoba Court of Appeal affirmed the decision.

Landlord and Tenant - Topic 1825

The premises - Waste - Voluntary waste - Tenant's liability - [See Landlord and Tenant - Topic 1213 ].

Landlord and Tenant - Topic 1826

The premises - Waste - Permissive waste - Tenant's liability - [See Landlord and Tenant - Topic 1213 ].

Cases Noticed:

2261324 Manitoba Ltd. v. Domo Gasoline Corp. (1995), 106 Man.R.(2d) 91 (Q.B.), dist. [para. 14].

Darmac Credit Corp. et al. v. Great West­ern Containers Inc. (1994), 163 A.R. 10 (Q.B.), dist. [para. 14].

Antorisa Investments v. Petro Canada Ltd. (1996), 29 C.E.L.R.(N.S.) 52 (Ont. Gen. Div.), dist. [para. 14].

SEP Holdings Ltd. v. Metropolitan Stores of Canada Ltd. (1993), 10 C.E.L.R.(N.S.) 104 (P.E.I.T.D.), affd. (1994), 14 C.E.L.R.(N.S.) 130 (P.E.I.C.A.), refd to. [para. 22].

McGeek Enterprises Ltd. v. Shell Canada Ltd. (1991), 6 O.R.(3d) 216 (S.C.), refd to. [para. 23].

Counsel:

D.J. MacKinnon and J.W. Moroz, for the appellants;

D.G. Hill, for the respondents.

This appeal was heard on October 19, 1999, before Scott, C.J.M., Philp and Helper, JJ.A., of the Manitoba Court of Appeal.

On December 7, 1999, Helper, J.A., delivered the following judgment for the Manitoba Court of Appeal.