Brooks et al. v. Canadian Pacific Railway Ltd. et al., (2007) 298 Sask.R. 64 (QB)

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 11, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 298 Sask.R. 64 (QB);2007 SKQB 247

Brooks v. CPR (2007), 298 Sask.R. 64 (QB)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. JL.037

William Brooks, Sam Kinert, Rob Peter, Glenn Stepp, Lorraine Supple, Bill Wiechert, John Doe 1, John Doe 2, Jane Doe 1 and Jane Doe 2 (plaintiffs) v. Canadian Pacific Railway Limited and Canadian Pacific Railway Company (defendants)

(2004 Q.B.G. No. 1617; 2007 SKQB 247)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Dawson, J.

July 11, 2007.

Summary:

A Canadian Pacific Railway (CPR) train derailed in August 2004 in the city of Estevan. Members of the proposed plaintiff class who applied for certification of a class action against CPR were the approximately 175 residents, property owners, property lessees and/or employees of businesses who were subject to a city-ordered cautionary evacuation because of the danger of ammonia leaking from derailed tanker cars. The evacuation lasted approximately 44 hours. No ammonia leaked and there was no injury or damage to persons or property, other than CPR equipment. CPR opposed certification on the grounds that no cause of action was disclosed, there was no identifiable class, a class proceeding was not the preferable procedure and there was no adequate representative plaintiff.

The Saskatchewan Court of Queen's Bench dismissed the certification application on the ground that there was no genuine cause of action in the pleaded facts. Alternatively, even if there was a cause of action, the proposed class, while objectively identified, was not rationally related to all of the claims of loss. Further, while there were some common issues, several of them were not common across the proposed class. A class action was not the preferable procedure. Finally, none of the proposed plaintiffs were appropriate representative plaintiffs for the class action.

Actions - Topic 1511

Cause of action - General principles - New or extended cause of action - Opening of floodgates - A CPR train derailed in the city of Estevan - Fearing that tanker cars containing ammonia would leak, the city evacuated residents and businesses for a 44 hour period - No ammonia leaked and there was no physical injury to persons or property - The proposed plaintiffs sought certification of a class action claiming, inter alia, negligence by CPR resulting in interference with the psychological integrity and/or security of the proposed class (i.e., stress, worry, apprehension of imminent harm) - The Saskatchewan Court of Queen's Bench refused certification on the ground that the pleaded facts did not disclose a "cause of action", as required by s. 6(a) of the Class Actions Act - Stress and worry fell short of nervous shock and recognized psychiatric illnesses, where a duty of care was established - Even if it was reasonably foreseeable that the proposed class would suffer stress and worry, policy considerations militated against expanding the duty of care to include stress and worry - Doing so would open "the floodgates of litigation" and defendants would face "liability in an indeterminate amount for an indeterminate time to an indeterminate class" - This was not a case where "the courts should extend the categories of recovery for nervous shock" - See paragraphs 24 to 60.

Actions - Topic 1511

Cause of action - General principles - New or extended cause of action - Opening of floodgates - [See Damages - Topic 531 ].

Actions - Topic 1631

Cause of action - Torts - Mental shock - [See first Actions - Topic 1511 ].

Contracts - Topic 6501

Illegal contracts - General - A CPR train derailed in the city of Estevan - Fearing that tanker cars containing ammonia would leak, the city evacuated residents and businesses for a 44 hour period - No ammonia leaked and there was no physical injury to persons or property - The proposed plaintiffs sought certification of a class action claiming, inter alia, a cause of action for "illegal contract" - The Saskatchewan Court of Queen's Bench held that there was no sustainable cause of action - The real nature of the doctrine of illegality was to preclude a cause of action on public policy grounds, not to provide the foundation for a cause of action - There was, inter alia, no allegation in the pleadings of breach of any contract - See paragraphs 111 to 125.

Damages - Topic 531

Limits of compensatory damages - Remoteness - Torts - Recoverable damages - Purely economic loss - A CPR train derailed in the city of Estevan - Fearing that tanker cars containing ammonia would leak, the city evacuated residents and businesses for a 44 hour period - No ammonia leaked and there was no physical injury to persons or property - The proposed plaintiffs sought certification of a class action claiming, inter alia, negligence by CPR resulting in financial loss for the loss of use and enjoyment of property during the evacuation period - The Saskatchewan Court of Queen's Bench held that the claim was for pure economic loss - The recognized categories for pure economic loss were: "(1) independent liability of statutory public authorities; (2) negligent misrepresentation; (3) negligent performance of a service; (4) negligent supply of shoddy goods or structure; and (5) relational economic loss" - The court held that the claim neither fell within nor was analogous to those categories where a duty of care was recognized - Accordingly, the plaintiffs had a cause of action, as required by s. 6(a) of the Class Actions Act, only if a new, extended duty of care was recognized for recovery of pure economic loss - The plaintiffs' pleadings failed to allege any special relationship giving rise to a sufficient relational proximity to support a prima facie duty of care - In any event, even if a duty of care was established, policy considerations militated against extending the duty of care respecting pure economic loss - Extending the duty of care would result in indeterminate liability to an indeterminate class of persons, including those who were secondarily and incidentally affected by the evacuation - See paragraphs 61 to 90.

Practice - Topic 209

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - General principles - The Saskatchewan Court of Queen's Bench stated that "class action legislation should be construed generously and that an overly restrictive approach must be avoided to realize the benefits of the legislation as foreseen by its drafters, namely serving judicial economy, enhancing access to justice and, encouraging behaviour modification by those who cause harm" - See paragraph 23.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - A Canadian Pacific Railway (CPR) train derailed in the city of Estevan - Members of the proposed plaintiff class who applied for certification of a class action against CPR were the approximately 175 residents, property owners, property lessees and/or employees of businesses who were subject to a city-ordered cautionary evacuation because of the danger of ammonia leaking from derailed tanker cars - The evacuation lasted approximately 44 hours - No ammonia leaked and there was no injury or damage to persons or property, other than CPR equipment - CPR opposed certification on the grounds that, inter alia, there was no identifiable class (Class Actions Act, s. 6(b)) - The Saskatchewan Court of Queen's Bench dismissed the certification application - The proposed class definition would provide an objective basis upon which members of the class could be identified - However, there had to be a rational connection between the proposed class definition, the proposed causes of action and the proposed common issues - If the claim disclosed an authentic cause of action (which was determined to the contrary), the court would have found an identifiable class in relation to claims for economic loss and stress - See paragraphs 128 to 145.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Section 6(a) of the Class Actions Act required that "the pleadings disclose a cause of action" as one of the preconditions to certification - The Saskatchewan Court of Queen's Bench stated that the test was not the "plain and obvious test" used in applications to strike a pleading as failing to disclose a cause of action - The court stated that "it is clear in Saskatchewan that the plaintiffs must satisfy the court that they have an authentic or genuine cause of action. The plaintiffs must satisfy the court that there exists a plausible basis in principle and presumed fact for supposing that the defendants could be held liable" - See paragraph 27.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - A Canadian Pacific Railway (CPR) train derailed in the city of Estevan - Members of the proposed plaintiff class who applied for certification of a class action against CPR were the approximately 175 residents, property owners, property lessees and/or employees of businesses who were subject to a city-ordered cautionary evacuation because of the danger of ammonia leaking from derailed tanker cars - The evacuation lasted approximately 44 hours - No ammonia leaked and there was no injury or damage to persons or property, other than CPR equipment - CPR opposed certification on the grounds that, inter alia, there were no common issues (Class Actions Act, s. 6(c)) - The Saskatchewan Court of Queen's Bench dismissed the certification application - All of the proposed common issues accepted by the court related to proposed causes of action that were rejected by the court as not being reasonable causes of action - If there was no cause of action identified by any potential class member, there could be no common issues - See paragraphs 146 to 156.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - A Canadian Pacific Railway (CPR) train derailed in the city of Estevan - Members of the proposed plaintiff class who applied for certification of a class action against CPR were the approximately 175 residents, property owners, property lessees and/or employees of businesses who were subject to a city-ordered cautionary evacuation because of the danger of ammonia leaking from derailed tanker cars - The evacuation lasted approximately 44 hours - No ammonia leaked and there was no injury or damage to persons or property, other than CPR equipment - CPR opposed certification on the grounds that, inter alia, a class action was not the preferable procedure (Class Actions Act, s. 6(d)) - The Saskatchewan Court of Queen's Bench held that a class action was not the preferable procedure - While there would be some judicial economy in determining questions of fact, and there would be some common issues, there remained individual issues requiring individual inquiry - See paragraphs 157 to 164.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment of representative plaintiff - A Canadian Pacific Railway (CPR) train derailed in the city of Estevan - Members of the proposed plaintiff class who applied for certification of a class action against CPR were the approximately 175 residents, property owners, property lessees and/or employees of businesses who were subject to a city-ordered cautionary evacuation because of the danger of ammonia leaking from derailed tanker cars - The evacuation lasted approximately 44 hours - No ammonia leaked and there was no injury or damage to persons or property, other than CPR equipment - CPR opposed certification on the grounds that, inter alia, there was no representative plaintiff (Class Actions Act, s. 6(e)) - None of the persons named in the amended amended statement of claim were proposed by plaintiffs' counsel as the representative plaintiff - Counsel named another individual and two alternates, none of whom were named plaintiffs - No information was provided as to the suitability of any of them - Only one of them stated that they were prepared to serve as the representative plaintiff - Two of them were clearly not persons who could vigorously and capably prosecute the claim - The Saskatchewan Court of Queen's Bench held that none of the proposed representative plaintiffs were appropriate representative plaintiffs for the proposed class action - See paragraphs 157 to 200.

Torts - Topic 2004

Strict liability - General - Application of rule in Rylands v. Fletcher - A CPR train derailed in the city of Estevan - Fearing that tanker cars containing ammonia would leak, the city evacuated residents and businesses for a 44 hour period - No ammonia leaked and there was no physical injury to persons or property - The proposed plaintiffs sought certification of a class action claiming, inter alia, strict liability based on an application of the rule in Rylands v. Fletcher - The Saskatchewan Court of Queen's Bench stated that the elements of a cause of action under the rule in Rylands v. Fletcher were "(i) the defendant has made a non-natural use of its land; (ii) the defendant brought onto his land something which was likely to do mischief if it escaped; (iii) the substance in question escaped; and (iv) damage was caused to the plaintiffs' property or person as a result of the escape" - The court held that there was no cause of action where the ammonia did not escape the tanker cars and no damage was caused to the plaintiffs' person or property - The law in Rylands v. Fletcher did not extend to recover pure economic loss - See paragraphs 95 to 107.

Torts - Topic 3184

Trespass - Assault and battery - Assault - Unintended injury - A CPR train derailed in the city of Estevan - Fearing that tanker cars containing ammonia would leak, the city evacuated residents and businesses for a 44 hour period - No ammonia leaked and there was no physical injury to persons or property - The proposed plaintiffs sought certification of a class action claiming, inter alia, a cause of action for assault (apprehension of imminent harm) - The Saskatchewan Court of Queen's Bench rejected the novel claim - Assault was an intentional tort, not a claim recognized in negligence, as advanced by the plaintiffs' pleadings - Absent any intention that the plaintiffs suffer a fear of imminent harm, there was no sustainable cause of action - See paragraphs 108 to 111.

Torts - Topic 8712

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Foreseeability - [See first Actions - Topic 1511 ].

Cases Noticed:

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 23].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 205 D.L.R.(4th) 19; 2001 SCC 68, refd to. [para. 23].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 23].

Hoffman et al. v. Monsanto Canada Inc. et al. (2005), 264 Sask.R. 1; 2005 SKQB 225, refd to. [para. 24].

May et al. v. Saskatchewan, [2006] 9 W.W.R. 89; 277 Sask.R. 21; 2006 SKQB 145, refd to. [para. 24].

Hoffman et al. v. Monsanto Canada Inc. et al. (2007), 293 Sask.R. 89; 397 W.A.C. 89; 2007 SKCA 47, refd to. [para. 25].

Tottrup v. Lund et al., [2000] 9 W.W.R. 21; 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, refd to. [para. 28].

Tottrup v. Alberta (Minister of Environment) - see Tottrup v. Lund et al.

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241; 91 D.L.R.(4th) 289, refd to. [para. 39].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 W.L.R. 1024 (H.L.), refd to. [para. 39].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 40].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 42].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Holland v. Saskatchewan et al. (2007) 299 Sask.R. 109; 408 W.A.C. 109; 2007 SKCA 18, refd to. [para. 47].

Knife v. Charles (2005), 272 Sask.R. 111; 2005 SKQB 516, refd to. [para. 50].

Satara Farms Inc. et al. v. Parrish & Heimbecker Ltd. (2006), 280 Sask.R. 44; 2006 SKQB 229, refd to. [para. 51].

Vanek v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1999), 127 O.A.C. 286; 48 O.R.(3d) 228 (C.A.), refd to. [para. 53].

Bechard v. Haliburton Estate and Damsgard (1991), 51 O.A.C. 247; 84 D.L.R.(4th) 668 (C.A.), refd to. [para. 55].

Durwyn v. Kaprielian (1978), 94 D.L.R.(3d) 424 (Ont. C.A.), refd to. [para. 55].

Nespolon v. Alford et al. (1998), 110 O.A.C. 108; 161 D.L.R.(4th) 646 (C.A.), refd to. [para. 57].

Winnipeg Condomimium Corp. No. 36 v. Bird Construction Ltd. et al., [1995] 1 S.C.R. 85; 176 N.R. 321; 100 Man.R.(2d) 247; 91 W.A.C. 247, refd to. [para. 63].

Whittingham v. Crease & Co. (1978), 88 D.L.R.(3d) 353 (B.C.S.C.), refd to. [para. 69].

Hofstrand Farms Ltd. v. B.D.C. Ltd., [1986] 1 S.C.R. 228; 65 N.R. 261, refd to. [para. 69].

Fraser-Brace Maritimes Ltd. v. Centennial Properties Ltd. et al. (1980), 42 N.S.R.(2d) 1; 77 A.P.R. 1 (C.A.), leave to appeal refused (1981), 36 N.R. 169; 43 N.S.R.(2d) 540; 81 A.P.R. 540; 117 D.L.R.(3d) 312 (S.C.C.), refd to. [para. 69].

D'Amato et al. v. Badger et al., [1996] 2 S.C.R. 1071; 199 N.R. 341; 79 B.C.A.C. 110; 129 W.A.C. 110, refd to. [para. 73].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 73].

Read v. Lyons, [1947] A.C. 156; [1946] 2 All E.R. 471, refd to. [para. 101].

Cattle v. Stockton Waterworks Co., [1874-80] All E.R. Rep. 220; L.R. 10 Q.B. 453, refd to. [para. 105].

Still v. Minister of National Revenue (1997), 221 N.R. 127; 154 D.L.R.(4th) 229 (F.C.A.), refd to. [para. 114].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 119].

Lewis et al. v. Shell Canada Ltd. et al., [2000] O.T.C. 394; 48 O.R.(3d) 612 (Sup. Ct.), refd to. [para. 120].

Vitelli et al. v. Villa Giardino Homes Ltd. et al., [2001] O.T.C. 586 (Sup. Ct.), refd to. [para. 120].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1; 27 C.P.C.(4th) 172 (Gen. Div.), refd to. [para. 132].

Mouhteros v. DeVry Canada Inc. (1998), 70 O.T.C. 138; 41 O.R.(3d) 63 (Gen. Div.), refd to. [para. 136].

Lau et al. v. Bayview Landmark Inc. et al., [1999] O.T.C. 220; 40 C.P.C.(4th) 301 (Sup. Ct.), refd to. [para. 136].

Toms Grain & Cattle Co. et al. v. Arcola (2006), 279 Sask.R. 281; 372 W.A.C. 281; 2006 SKCA 20, refd to. [para. 145].

Pearson v. Inco Ltd. et al., [2002] O.T.C. 515; 33 C.P.C.(5th) 264 (Sup. Ct.), refd to. [para. 149].

Chace et al. v. Crane Canada Inc. (1997), 101 B.C.A.C. 32; 164 W.A.C. 32; 14 C.P.C.(4th) 197 (C.A.), refd to. [para. 150].

Scott v. TD Waterhouse Investor Services (Canada) Inc. et al., [2001] B.C.T.C. 1299; 94 B.C.L.R.(3d) 320; 2001 BCSC 1299, refd to. [para. 167].

Hoffman et al. v. Monsanto Canada Inc. et al. (2002), 227 Sask.R. 63; 287 W.A.C. 63; 2002 SKCA 120, refd to. [para. 168].

Frey et al. v. BCE Inc. et al. (2006), 282 Sask.R. 1; 2002 SKQB 328, refd to. [para. 199].

Statutes Noticed:

Class Actions Act, S.S. 2001, c. C-12.01, sect. 2 [para. 128]; sect. 6 [para. 22]; sect. 9 [para. 157].

Authors and Works Noticed:

Feldthusen, Bruce, Economic Negligence: The Recovery of Pure Economic Loss (4th Ed. 2000), pp. 193 to 195 [para. 72]; 234 to 236 [para. 75].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (2nd Ed. 2002), p. 224 [para. 103].

Halsbury's Laws of England (2nd Ed.) (1932), vol. 7, p. 173, para. 248 [para. 116].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), pp. 45, 46 [para. 111]; 214 [para. 119]; 390 [para. 49]. Manual for Complex Litigation (3rd Ed. 1995), p. 217 [para. 133].

Waddams, Stephen M., The Law of Contracts (5th Ed. 2005), p. 395, para. 558 [para. 115].

Counsel:

E.F. Anthony Merchant, Q.C., for the plaintiffs;

Robert W. Leurer, Q.C., and Michael J. Phillips, for the defendants.

This application was heard before Dawson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on July 11, 2007.