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.
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.
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
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 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
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
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