



COURT OF APPEAL FOR ONTARIO

CITATION: Sorbam Investments Ltd. v. Litwack, 2017 ONCA 850

DATE: 20171106

DOCKET: C63572

Sharpe, Rouleau and Fairburn JJ.A.

BETWEEN

Sorbam Investments Ltd.

Plaintiff (Appellant)

and

Alan David Litwack, Gary
    Michael Litwack and Deborah Ruth Litwack, in their capacity as Estate Trustees
    of the Estate of Moses Litwack, deceased, Samuel Litwack
and 1129892
    Ontario Limited

Defendants (Respondents)

Michael Hebert, for the appellant

Tamara Farber, for the respodents

Heard and released orally: November 1, 2017

On appeal from the order of Justice E. Sheard of the Superior
    Court of Justice, dated February 24, 2017.

REASONS FOR DECISION

[1]

We see no error on the part of the motion judge granting summary
    judgment to dismiss the appellants claim in both nuisance and negligence in
    relation to contamination of their lands. The motion judge carefully reviewed
    the record and concluded that the appellant had failed to produce evidence of
    negligence or that the respondents knew or ought to have known the facts
    necessary to ground an action in nuisance.

[2]

We do not agree with the appellants submission that the record supports
    a possible negligence claim for failure to inspect or supervise the activity of
    dry cleaners who were tenants on the appellants lands. The record indicates no
    more than the respondents leased part of their lands to dry-cleaning
    businesses. That, standing alone, is not sufficient to trigger a duty to a
    neighbouring land owner to inspect or supervise the activity of the tenant.

[3]

Nor do we agree that the Patterson Reports obtained by the respondents
    while they still owned the property were sufficient to put them on notice of
    contamination from their land moving to the lands of the appellant. The
    Patterson Reports indicated that there was some contamination on the
    respondents lands but that remediation was not required. There was nothing in
    the Patterson Reports to indicate that the contamination had migrated to the
    appellants lands. Indeed, the report suggests that the water flow was in the
    other direction.

[4]

Accordingly the appeal is dismissed with costs to the respondents fixed
    at $25,000, inclusive of taxes and disbursements.

Robert J. Sharpe
    J.A.

Paul
    Rouleau J.A.

Fairburn
    J.A.


