Canada: Environmental Claims Fail Despite Expert Evidence

Last Updated: August 2 2016
Article by Sean D. Parker

McLennan Ross successfully represented Shell Canada Limited in a summary dismissal application seeking to have a number of related lawsuits against Shell dismissed. Following the hearing of Shell's application, Master J. Farrington of the Alberta Court of Queen's Bench dismissed the lawsuits against Shell at a relatively early stage of the litigation, well before trial.

The litigation involves eight separate lawsuits launched by a number of residential property owners, and one commercial property owner, in the Bowness neighbourhood of Calgary. All of the actions stem, at least in part, from a gasoline spill from a nearby retail gas station operated by Gas Plus Inc. and owned by the a related corporation, Handel Transport (Northern) Ltd. (collectively, "Gas Plus"). The spill occurred in April 2010 while Gas Plus controlled the site. The exact size of the spill is unknown, but it appears to have consisted of between 7,000 and 9,000 litres of gasoline.

Shell was named as a defendant based on the allegation that it caused or contributed to some contamination on the plaintiffs' lands from its historical ownership or operation of a the site. Shell owned the site from the late 1950s until selling it in 1987. Shell continued to supply gasoline to the independent site operators until 1998. The theory advanced by the plaintiffs was that their properties were also impacted by historical contamination alleged to have been caused by Shell as a prior owner of the site.

Part of the plaintiffs' strategy in opposing the summary dismissal application was to attempt to reverse the usual onus of proof by arguing that Shell could not prove that it did not cause the contamination. The plaintiffs pointed to the lack of historical records documenting the remedial efforts of Shell around the time it sold the site in late 1987 and early 1988, as well as alleging significant gaps in the historical site assessment information associated with the site, and invited the Court to infer that therefore Shell was likely responsible for some of the contamination on the plaintiffs' lands.

While the onus in a summary dismissal application is on the applicant (i.e. Shell) to show that the plaintiffs' claims lack merit, in order to defend the application the plaintiffs must provide some reasonable amount of evidence illustrating that there is a genuine issue of merit for determination at a trial. In the end, the plaintiffs were not successful. It was the lack of positive evidence put forth by the plaintiffs, not the absence of Shell's exculpatory evidence, that formed the basis of the Court's decision to release Shell from the litigation.

A party will succeed with a summary judgement or summary dismissal application when the process:

  1. allows the court to make the necessary findings of fact;
  2. allows the court to apply the law to the facts; and
  3. is a proportionate, more expeditious and less expensive means to achieve a just result.

Shell's position on the summary dismissal application was that during Shell's involvement the site showed only trace and insignificant contamination, its involvement with the site completely ended in 1998, and the contamination of the plaintiffs' lands happened in 2010 (caused by others). Shell presented direct evidence that there was no significant contamination of the site during Shell's involvement, and an expert opinion report that the historical record of site assessment information showed no risk or impact to the plaintiff's lands. In opposing the summary dismissal application, the plaintiffs relied on the same historical record of site assessment information, and an expert opinion report that said the historical record was inadequate to rule out the possibility of impacts caused by Shell.

In the end, the Court accepted that the plaintiffs' actions against Shell were doomed to fail because they lacked evidence showing that Shell caused or contributed to contamination of their lands. The plaintiffs raised a number of legal issues and put forth a novel scientific theory, but ultimately failed against Shell due to a lack of evidence. The Court made the following findings in paragraphs 34 and 37:

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 evidence. There were arguments extracting isolated facts from prior environmental reports, but the proof of causation element is missing. Submissions of counsel are not evidence. [The plaintiffs' expert evidence] ... does not support the proposition that the plaintiff likely will be able to prove a connection to Shell in terms of the contamination.
... Ultimately, the historical facts would not change significantly at a trial and the witnesses and experts who were called upon to give direct evidence as to their knowledge and opinions did so.

One of the main lessons to learn from this decision is that raising numerous issues of fact and law, and characterizing the matter as complex and highly technical, will not necessarily suffice to ward off a summary dismissal application. In a summary dismissal application, the plaintiff bears the practical obligation to put its best foot forward and present sufficient evidence showing that it has a reasonable chance of success at trial. It is not enough for the plaintiff to argue that better or further evidence will be presented at trial.

This case follows the path laid out by the Supreme Court in the 2014 decision in Hryniak v. Mauldin and is another example of Canadian courts' movement towards weeding out weak claims and defences in an effort to achieve reasonably prompt resolution of actions and reduce the cost and time required for our civil litigation system. This case is noteworthy because it is one of a small number of environmental litigation matters where the courts have disposed of the action summarily. Often environmental litigation is seen as complicated and technical in nature, requiring trial or other lengthy proceedings for the purpose of weighing expert evidence and obtaining a sufficient evidentiary record required for deciding the matter. However, the decision to dismiss the claims against Shell at this stage of the litigation may signal an appetite of the Alberta Courts to dispose of scientifically complex matters at an early stage and without the need for a trial. This decision can be seen as a positive development for those involved in civil litigation, as it is another step towards streamlining our court process and reducing the resources required for concluding lawsuits.

The plaintiffs initially appealed the Master's decision, but the appeals were discontinued in June 2016. Although the claims against Shell have been dismissed, the litigation is ongoing against a number of other defendants and third parties.

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.

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Sean D. Parker
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