Simpson & Yan v. Chapman & Drummond. Country/Territory Canada Type of court Others Date Jan 23, 2009 Source UNEP, InforMEA Court name British Columbia Provincial Court Seat of court Vancouver Judge Tweedale. Language English Subject Waste & hazardous substances Keyword Solid waste Food waste Land tenure Organic waste Waste disposal Waste domestic sources Waste non-domestic sources Foreign land tenure Liability/compensation Abstract The BCPC dismissed a statutory cost recovery action brought pursuant to the EMA on the grounds that the claimants had failed to prove that the property in question was a contaminated site. The claimants purchased the residential property in question from the defendants in May 2006, and alleged that the defendants had failed to disclose the existence of an Underground Storage Tank (“UST”) on the property at the time of sale, which the claimants claimed had contaminated the property. When the claimants subsequently purchased the property in 2006, they did not carry out their own inspection instead relying on the earlier report obtained by the defendants in 2003, as well as the defendants Property Disclosure Form, which indicated no UST existed. The claimants later discovered the existence of the UST while gardening, approximately one year later. At trial, the court held that the claimants had failed to establish that the property was a contaminated site, within the meaning of the EMA and CSR, due to the type of methodology employed by their environmental consultant. Specifically, the court held that while the consultant had analyzed soil samples using US EPA Method 9074, which employs an extractable petroleum hydrocarbons (“EPH”) standard as its analytical method, this could not be used to determine whether a property was a contaminated site under the EMA or CSR, both of which contain standards based on light extractable petroleum hydrocarbons (“LEPH”), or heavy extractable petroleum hydrocarbons (“HEPH”). The court noted that ALARA had specifically warned the claimants about the limited use of the data it was providing to them in its environmental report. The court further accepted the evidence of defence experts that none of the testing results of soil samples taken from the property indicated that it was a contaminated site within the meaning of the EMA and CSR. The court went on to hold that the defendants would not have been liable even in the event that the claimants had established that the property was a contaminated site, noting that the defendants had carried out a home inspection at the time of purchase in 2003 that indicated there was no UST on the property, there were no further indications that the property might contain a UST, and that the UST was located at least three feet below the surface of the property at all times. The claimants could have requested to carry out their own home inspection at the time of purchase in 2006, but chose not to do so. That there was an “overheated” real estate market which might have resulted in the defendants selecting another buyer had the claimants insisted on their own inspection, the court held, did not change this fact. Full text COU-156969.pdf