Canada: Summary Dismissal Available On Causation Issues In Environmental Contamination Case

In Floate v Gas Plus Inc. 2015 ABQB 725, the Alberta Court of Queen's Bench recently granted summary dismissal to Shell Canada Limited ("Shell"), a case stemming from ongoing litigation (see our previous post here). The case is notable for the Court's willingness to grant summary judgment on a causation issue which would historically be held to be an issue requiring trial. It serves as a warning to parties opposing summary judgment applications to ensure they put forward their best evidence.

Background

In the GasPlus case (indexed as Floate v Gas Plus), several homeowners are suing GasPlus Inc., and several other parties, including Shell, in relation to a hydrocarbon release from a service station in April 2010. Shell had owned the service station between 1977 and 1988 and had dealer licence agreements in place with subsequent owners until 2000. On the evidence before the court, Shell's involvement with the site ceased in 2000.

The Decision

To succeed on its summary dismissal application, Shell had to establish that it had no involvement in the contamination of the Plaintiffs' homes. Although the spill occurred 10 years after Shell's last involvement with the site, the Plaintiff alleged that Shell had contaminated the site during its ownership and the 2010 spill pushed that contamination onto their properties.

Shell produced the engineer who had investigated the site for contamination in 1988 (before Shell sold the site). She testified that, when she investigated the site, she found no major problems with contamination. Thus, Shell was able to provide solid evidence that it hadn't left any contaminants behind to be pushed into the Plaintiffs' homes by the 2010 spill. Master Farrington held that "there is no evidence connecting any current off-site F2 contamination to pre-2000 residual Shell contamination."

With no evidence to show the connection between Shell's ownership and the Plaintiffs' losses, it fell to the Plaintiffs to provide some evidence that Shell had left contamination that later affected their properties. However, the Plaintiffs did not provide any evidence to show the link between their loss and Shell's ownership of the site. For that reason, Master Farrington granted Shell's Application. Master Farrington noted that:

While the older approach of suing all possible defendants is sometimes unavoidable, the increased costs and time of raising additional issues such as those against Shell which are not supported by reasonable evidence would only serve to unduly prolong and delay the proceedings and increase cost substantially for all parties, including the Plaintiffs.

Industry Implications

Industry members will note the value that Shell's environmental engineer provided in this case. By having the site remediation work done and (apparently) keeping good records, Shell was able to exit a potentially costly lawsuit early and save, not only the potential damages against it, but also the associated legal costs. The Plaintiffs lost because they could not adduce any evidence to show an issue requiring trial, which it is foreseeable may often be the case when dealing with historical contamination issues. Floate v Gas Plus Inc. reinforces that it is not enough to simply challenge the opponents' case. A respondent to a summary dismissal application must be prepared to address evidence to establish the elements of their claims, or risk having the claim dismissed.

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