Ontario’s latest contaminated site decision is Kipfinch v. Westwood Mall (Mississauga) Limited. The intended purchaser of a $25 million shopping mall was unable to obtain financing after the vendor refused to allow invasive testing in an area formerly occupied by a dry cleaner.
The agreement of purchase and sale required the purchaser to satisfy itself of the environmental conditions of the property, but allowed the vendor to refuse to permit unduly invasive testing. The vendor refused to permit wells to be drilled in the retail area of the mall, even at night. Held, the vendor’s refusal was unreasonable, given the proximity of this area to the dry cleaning operation and the limited impact the testing would have. The Purchaser thereby lost a 50% chance of making a $660,000 profit, and was awarded $333,000 plus costs.
