Bellefeuille v. Canadian Pacific Railway Ltd. et al., 2011 ONSC 2648

• Judge: Herman, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: March 09, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONSC 2648;(2011), 283 O.A.C. 119 (DC)

Bellefeuille v. CPR (2011), 283 O.A.C. 119 (DC)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AP.036

James Bellefeuille and Lillian Bellefeuille (plaintiffs/respondents) v. Canadian Pacific Railway Limited and Canadian Pacific Railway Company (defendants/moving parties)

(19/11; 2011 ONSC 2648)

Indexed As: Bellefeuille v. Canadian Pacific Railway Ltd. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Herman, J.

April 29, 2011.

Summary:

The Bellefeuilles sued Canadian Pacific Railway (CPR) on September 20, 2004. Between that date and March 2005, 54 other individual actions were commenced against CPR. Each action related to a separate piece of property in Cartier, Ontario, and sought damages for environmental contamination caused by leaks and spills of diesel fuel on CPR property. In 2008, the Bellefeuilles moved to amend their statement of claim to convert their action to a class proceeding. The amendment had the potential of resulting in approximately 95 additional properties becoming the subject of a claim. The Bellefeuilles conceded that the limitation period respecting their claim for diminution of property values began to run on October 26, 2000, and therefore ended on October 26, 2006.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 188, allowed the motion. CPR moved for leave to appeal.

The Ontario Divisional Court, per Herman, J., dismissed the motion.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - Plaintiffs in an environmental contamination action moved to amend their statement of claim to convert the action into a class action - At issue included whether the court had jurisdiction to convert a single action to a class proceeding by way of an amendment - A motions judge noted that there was no explicit prohibition against such an amendment nor was there a policy reason for such a prohibition - Considering that the Civil Procedure Rules were to be interpreted in harmony with the purposes of class proceedings, the judge concluded that there was no bar to such amendment - The judge further indicated that, on a threshold analysis, the claim appeared to have the essential elements of a class action - The judge concluded that she had jurisdiction and granted the motion - The defendant applied for leave to appeal, asserting that, inter alia, the motions judge had lacked jurisdiction - The Ontario Divisional Court, per Herman, J., rejected the assertion - See paragraphs 17 to 34.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - Plaintiffs in an environmental contamination action moved to amend their statement of claim to convert the action into a class action - The amendment had the potential of resulting in approximately 95 additional properties becoming the subject of a claim - A motions judge, in granting the motion, relied on the test in Civil Procedure Rule 26.01 (i.e., the court should grant an amendment on such terms as were just, unless prejudice would result that could not be compensated for by costs or an adjournment) - The judge also conducted a threshold analysis of whether the claim appeared to have the essential elements of a class action - The judge also ordered that CPR be compensated for its costs thrown away for defending the individual plaintiffs' actions - The defendant applied for leave to appeal, asserting, inter alia, that the test applied was inadequate and that the judge should have imposed additional requirements before granting the amendment - In particular, the defendant asserted that the would be representative plaintiff should have been required to explain and justify the failure to initiate the action as a class proceeding at the outset - The Ontario Divisional Court, per Herman, J., rejected the defendant's assertion and dismissed the motion - See paragraphs 35 to 43.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - Plaintiffs in an environmental contamination action moved to amend their statement of claim to convert the action into a class action - The amendment had the potential of resulting in approximately 95 additional properties becoming the subject of a claim - A motions judge stated that there was no Limitations Act issue because the amendment only involved a procedural change - Rather, any limitations issues arose in the context of the class definition and the possible addition of a new claim and would best be dealt with in the certification process - The judge noted that the defendant was free to argue all issues respecting the class definition, including Limitations Act issues, in the certification motion - The defendants applied for leave to appeal, asserting that amendments should not be allowed which might have the effect of adding claims for property whose claims would otherwise be statute barred - The Ontario Divisional Court, per Herman, J., rejected the defendant's assertion and dismissed the motion - See paragraphs 44 to 50.

Practice - Topic 2106

Pleadings - Amendment of pleadings - Power of the court to amend - [See first Practice - Topic 210.5 ].

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statue barred - [See third Practice - Topic 210.5 ].

Practice - Topic 2142

Pleadings - Amendment of pleadings - Considerations governing granting of leave - [See second Practice - Topic 210.5 ].

Cases Noticed:

Pearson v. Inco Ltd. et al., [2002] O.T.C. 515; 33 C.P.C.(5th) 264 (Sup. Ct.), affd. (2004), 183 O.A.C. 168; 44 C.P.C.(5th) 276 (Div. Ct.), revd. (2005), 205 O.A.C. 30; 18 C.P.C.(6th) 77 (C.A.), refd to. [para. 11].

Boulanger v. Johnson & Johnson Corp. (2003), 170 O.A.C. 333; 64 O.R.(3d) 208 (Div. Ct.), refd to. [para. 25].

Stevenson Estate v. Bank of Montreal et al. (2009), 342 Sask.R. 88 (Q.B.), refd to. [para. 29].

Maurice v. Canada, [2004] F.T.R. Uned. 325; 2004 FC 528, refd to. [para. 29].

Dorus v. Teck Corp. et al., [2005] B.C.T.C. Uned. 407 (S.C.), refd to. [para. 29].

J.G. et al. v. Sister Servants of Mary Immaculate et al. (2007), 294 Sask.R. 99 (Q.B.), refd to. [para. 31].

Dixon (M.J.) Construction Ltd. v. Hakim Optical Laboratory Ltd. et al., [2009] O.T.C. Uned. 738; 2009 CanLII 14046 (Sup. Ct. Master), refd to. [para. 38].

Canadian Imperial Bank of Commerce v. Petten et al., [2010] O.T.C. Uned. 6726; 2010 ONSC 6726, refd to. [para. 38].

Frohlick et al. v. Pinkerton Canada Ltd. et al. (2008), 232 O.A.C. 146; 88 O.R.(3d) 401 (C.A.), refd to. [para. 47].

Counsel:

Kathleen Erin Cullin, for the plaintiffs/respondents;

Steven F. Rosenhek and Rosalind H. Cooper, for the defendants/moving parties.

This motion was heard on March 9, 2011, by Herman, J., of the Ontario Divisional Court, who released the following endorsement on April 29, 2011.