Law360 Canada (May 21, 2024, 12:04 PM EDT) -- Appeal by appellants from chambers judge’s decision which allowed Qualex-Landmark Towers Inc. (“Qualex”) amendments and granted the attachment order. The appellants argued that the chambers judge made a legal error by holding that the reasoning in Redwater may apply outside of insolvency proceedings to create a common law super priority in favour of a private litigant. Qualex alleged that chemical contaminants had migrated to its land from adjoining lands owned by 12-10 Capital Corporation (“Capital”), and that Capital and any tenant who had control of the Capital lands were liable in nuisance and negligence for the damages caused. Capital entered an agreement to sell the eastern portion of its lands and applied for an order discharging a certificate of lis pendens (CLP) registered by Qualex on title to the Capital lands to allow the sale to proceed. Qualex responded with a cross-application for an attachment order. The anticipated sale of the Capital lands did not proceed but the applications brought by Capital and Qualex did. An applications judge ordered the CLP discharged because Qualex was not claiming an interest in land. Qualex subsequently applied for permission to amend its statement of claim to add Capital's secured mortgage lenders and the beneficial owner of two of the mortgages as defendants, and to include a claim for a declaration that any judgment for damages be paid using the money from the proceeds of any sale of the Capital Lands in priority of all creditors, debts, or obligations, including secured creditors and registered mortgagees. Capital argued that Qualex's application should be dismissed in its entirety because the proposed super priority claim was hopeless. The chambers judge accepted there was a reasonable likelihood the appellate direction in Redwater and subsequent cases concerning environmental remediation obligations would be applied to Capital, with the result that Qualex would enjoy the priority it was seeking....