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In 2014, Metrus Properties sued Wrigley Canada claiming Wrigley’s neighbouring property had contaminated its property. When Wrigley asked to access the Metrus property to conduct environmental tests, Metrus refused. In April of 2016, the Superior Court of Justice granted an injunction to temporarily prevent Metrus from redeveloping its property and also ordered access to Metrus’s property to allow Wrigley to conduct environmental testing.

Metrus refused access and opposed the motion for two reasons: Metrus argued that Wrigley could use the existing test results done by both the tenant at the Metrus property, and by Metrus itself; it further argued that it needed to carry out the excavation work to finally rent or otherwise develop the property.

The court did not give much weight to either of the arguments. It concluded that the rules authorizing an inspection should be applied liberally: as long as there is a reasonable possibility that the inspection will reveal something useful, then the inspection should be ordered. The court also noted that the purpose of an inspection order is to ensure that a party does not have to rely entirely on the other side’s evidence. Allowing Wrigley to test would “level the playing field between experts”.

The court considered if it could order Metrus to stop work at its property, to allow for the testing. Injunctions are extraordinary remedies. However, the court concluded that if Metrus completed its excavation work, it would cause “irreparable harm” to Wrigley. Metrus planned extensive excavations and any environmental testing after the fact would be conducted in a very different environment than the one that existed during prior testing. Further, any delay in Metrus’ redevelopment plans was the fault of Metrus, who refused earlier access and did not warn Wrigley that it intended to conduct excavations at the site.

At the end of the day, this application comes down to simple fairness. Metrus has sued Wrigley on the basis that [volatile organic compounds (“VOCs”)] seeped from the Wrigley Property to the Metrus Property. Metrus has refused to allow Wrigley to access in order to test. Wrigley asked for access at a time when it did not know that Metrus was about to excavate – but Metrus obviously did. Metrus could have allowed Wrigley to test at that time without disrupting the construction schedule. I am aware that Metrus is anxious to do something with the Metrus Property, but the Metrus Property has not been generating income since 2011. Although I certainly do not have to decide this issue on the injunction, the evidence is thin, at best, that Wrigley ever generated any VOCs while making chewing gum. Fairness requires that Wrigley be given the opportunity to conduct its own tests. I also find it would be unfair to make Wrigley pay for whatever penalties and costs Metrus incurs with its construction sub-contractors as a result of this interim injunction when this situation is to a significant degree, the result Metrus’s own making.

So what’s the take away message? When you sue someone and refuse to let them access the evidence, do not expect a sympathetic court.

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