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.

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.

Authors
Sean D. Parker
Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions