The Alberta Court of Queen's Bench in Floate v. Gas
Plus reminds plaintiffs that they must prove that each
defendant is responsible for the alleged contamination at issue.
The case is also a reminder to those who operate potentially
contaminating businesses of the importance of proper
decommissioning and environmental close out reports.
In Floate v Gas Plus,1 the plaintiffs owned
land neighbouring a gas station. The gas station was owned and
operated by Shell until 1988. Shell continued to supply fuel to the
gas station until 2000. Shell had no involvement at the gas station
In 2010, a spill of 7,000-9,000 litres of gasoline occurred at
the gas station and contaminated the plaintiffs' neighbouring
property. Following the spill, the plaintiffs brought a claim
against Shell Canada, Gas Plus and others. The plaintiffs alleged
that as a result of the 2010 spill, residual hydrocarbons from
Shell's operations were pushed off-site, increasing
contamination at the plaintiffs' property.
Shell brought an application for summary dismissal of the action
and related actions on the grounds that there was no evidence that
it caused any of the alleged damages.
The Court noted that there was no evidence presented by the
plaintiffs that the contamination at their property was caused by
Shell. In 1988, prior to selling the station, Shell decommissioned
the existing underground storage tanks and conducted environmental
The plaintiffs' own expert, while providing the Court with
"a helpful critique of the techniques used in 1987",
testified that it was not possible to know whether there was any
evidence of material risk to human health from contaminant
migration between 1987 and 2001.2 Without expert
evidentiary support, the plaintiffs could not opine that the
potential historic residual contamination at the gas station was
the cause of their present loss.
The Court, after considering the evidence and law, held:
...I find that there is not sufficient evidence that the
contamination of the plaintiffs' lands was caused by Shell to
constitute an issue of merit for trial.3
At a trial, quite simply, the plaintiffs would need to satisfy a
trial judge that, at least some of their contamination arose from
contamination molecules that originated during Shell's
occupation and control of the site. There is no such
Application of Floate v. Gas Plus
Floate v. Gas Plus affirms the principle that there
must be evidentiary underpinnings to support plaintiffs'
allegations in cases of historic environmental contamination. In
obiter, the decision warns plaintiffs that suing all
possible defendants without reasonable evidence may only result in
prolonged proceedings and cost consequences for all parties.
In addition, the Court noted that on a summary dismissal
application, the plaintiffs are not required to prove their case,
but must put their best foot forward. The plaintiffs cannot rely on
the promise of advancing a better case at trial. The Court also
made note of the 10 year gap between Shell's last activity at
the site and linking Shell to the 2010 gas spill.
From a defendant's perspective, it is also important to
advance as much evidence as possible to support an application for
summary dismissal. While Floate v. Gas Plus was ultimately
decided on the plaintiffs' lack of evidence, Shell presented
expert evidence from an engineer on the actual environmental
testing conducted at the gas station and from a chemist on the
likelihood of off-site migration in support of its submissions that
there was no genuine issue for trial.
1 2015 ABQB 725 [Floate].
2 Floate, supra note 1,Error!
Bookmark not defined. at para 19 &
3 Floate, supra note 1, at para. 32
4 Ibid at para. 34.
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