Key Issues:
- Whether Evergreen met the burden to obtain an injunction against FirstCanada.
- Whether an order for inspection should be made under Rule 32.01(1) to allow Evergreen access to FirstCanada's property for testing.
Rulings:
- Injunction Request: Denied
- Order for Inspection: Denied
Summary:
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Background:
- Evergreen alleges contamination on its property due to activities on FirstCanada's adjacent property.
- The contamination is said to hinder a $1 billion development project by Evergreen.
- Evergreen's action is framed in nuisance and negligence, seeking $1,000,000 in damages and various injunctions.
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Evidence and Arguments:
- Evergreen retained consultants who linked contamination to FirstCanada's property.
- FirstCanada contested, citing that contamination discovery was delayed and asserting no current migration of contaminants.
- FirstCanada's experts provided evidence that a Risk Assessment (not necessarily a Record of Site Condition) could allow the project to proceed despite contamination.
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Legal Findings:
- The court found the request for inspection procedurally unfair due to its late introduction and lack of supporting evidence.
- The court held that the nature of the injunction sought by Evergreen was mandatory, requiring a higher standard of proof.
- Evergreen failed to show a strong prima facie case, irreparable harm, or that the balance of convenience favored them.
Conclusion: The court dismissed Evergreen's motion for an injunction and order for inspection. The judge emphasized the higher burden of proof required for mandatory injunctions and found Evergreen's evidence insufficient to meet this burden.
Next Steps:
- FirstCanada may be entitled to costs, subject to submissions by the parties. No amount specified.
- A motion for summary judgment by FirstCanada, challenging the claim as statute-barred, is scheduled for October 2024.
