Summary Judgment - a potential tool in defending contaminated
In Windsor v. Canadian Pacific Railway Ltd.,
2014 ABCA 108 ("Windsor"), the Alberta Court of
Appeal summarily dismissed certain claims in an environmental class
action. The appellant, Canadian Pacific Railway Ltd
("CP"), operated a locomotive repair facility near
Calgary. Nearly a century after it began the operations, CP
discovered that a contaminant, trichloroethylene (TCE), used on
site had leaked into the groundwater and migrated to adjacent
properties. The adjacent property owners brought a class
proceeding, claiming, among other things, nuisance and strict
liability under the Rylands v. Fletcher doctrine. The
class action, made up of 2 class groups, sought damages for
dimunition in property value and loss of rental income. In one
group this included 70 properties where sub-slab depressurization
systems had been installed to address the air quality impacts from
the TCE; a second group had TCE levels below Health Canada
thresholds. The distinction between the 2 groups was critical
in determining whether their claims survived.
CP sought to dismiss all claims by way of summary judgment, but
succeeded only in obtaining a dismissal of the nuisance claim
against the class members where no active remedial steps were
undertaken – i.e. the group with air quality below the Health
Canada threshold. The motion judge declined to dismiss the
claim based upon strict liability as he concluded that TCE has
escaped, and there was a triable issue as to whether the class
members were entitled to general damages for interference with the
enjoyment of their property. With respect to the class where
the depressurization system had been installed, the judge refused
to dismiss the nuisance claim, concluding that the need for
continuous mitigation itself was some evidence of loss of enjoyment
of their land. CP appealed the application judge's decision on
the basis that the other claims should have been dismissed too.
(There was no cross appeal).
The Alberta Court of Appeal stated that the standard of review
for the legal test for summary judgment is correctness. The Court
drew heavily from the recent case of Hryniak v. Mauldin, 2014 SCC 7
("Hryniak"). In Hryniak, the Supreme
Court of Canada lowered the bar for summary judgement, stating that
"summary judgment rules must be interpreted broadly, favouring
proportionality and fair access to the affordable, timely and just
adjudication of claims". While Hryniak applied the
Ontario Rules of Civil Procedure, the Alberta Court of
Appeal held that the principles articulated applied equally in
Alberta where the rules are similar.
On the strict liability claims, the appellate court allowed the
appeal against both classes. It held that on the evidence before
the motion judge, the respondents had failed to raise any genuine
or triable issue under the principles of Rylands v.
Fletcher, as laid out in the leading Canadian case Smith v. Inco, 2011 ONCA 62. On the
elements of a claim in strict liability, the Court of Appeal held
that a) there was no unreasonable use of lands, b) it was not
foreseeable at the time of use of TCE that its escape would do
damage (its use was not known at the time to possess harmful
qualities – and this evidence was uncontradicted on the
record), c) the "escape" of TCE was not the result of an
unintended accident or event, but was the result of deliberate
conduct acceptable at that time, d) since the other elements of the
strict liability tort were not made out, it was not necessary to
address the damages issue.
On the nuisance claim, the Court agreed with the motion
judge's finding that there was only proof that one class of
property owners had suffered non-trivial damages – those
where the depressurization system had been put in place.
The claim in nuisance against CP by that class survived
to see another day.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).