Cousins v. McColl-Frontenac Inc., 2007 NBCA 83 (CanLII)

This case was heard in the New Brunswick Court of Appeal.

Mr. Cousins purchased a property that had been previously been used as a service station. At the time of the purchase, Mr. Cousins understood that there could be some hydrocarbon contamination on the property, but he had the impression that he would still be able to use the property as he wished. Eventually, Mr. Cousins realized that the property could not be used commercially until extensive remediation was carried out, but the cost of remediation would exceed the value of the property. He sued the vendors, McColl-Frontenac Inc., who had sold the property to him “as is.” Mr. Cousins asked that the sale be rescinded, so that both parties would return to the positions they were in before the purchase was made. He also claimed damages for two additional properties that he purchased after the initial sale, both of which were also found to be contaminated.

Although the Court dismissed Mr. Cousin’s request for rescission, it held that Mr. Cousins should be allowed damages for one of the two additional properties that he purchased after the initial sale, since at the time of purchase he did not know, or could not reasonably be expected to have known, that that property was also contaminated. The Court held that Mr. Cousins knew or ought to have known of the risk of contamination at the time he purchased the third property, and so it did not allow damages on that count.

Both parties in the dispute appealed to the New Brunswick Court of Appeal, as both took issue with aspects of the Trial Judge's decisions. After consideratio, the Court of Appeal affirmed the decisions of the New Brunswick Court of Queen’s Bench.

To read other decisions related to this case, go to Cousins v. McColl-Frontenac Inc., 2006 NBQB 255 (CanLII), Cousins v. McColl-Frontenac Inc., 2006 NBQB 406 (CanLII), and Edward C. Cousins v. McColl-Frontenac Inc., 2008 CanLII 18967 (SCC).

View the Decision on CanLII: www.canlii.org/en/nb/nbca/doc/2007/2007nbca83/2007nbca83.html

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