Jackson v. Canadian National Railway Co. et al., 2015 ABCA 89

JudgeRowbotham, J.A.
CourtCourt of Appeal (Alberta)
Case DateFebruary 24, 2015
Citations2015 ABCA 89;(2015), 599 A.R. 237

Jackson v. CNR (2015), 599 A.R. 237; 643 W.A.C. 237 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.020

Thomas Richard Jackson (applicant) v. Canadian National Railway Company and Canadian Pacific Railway Company (respondents)

(1501-0021-AC; 2015 ABCA 89)

Indexed As: Jackson v. Canadian National Railway Co. et al.

Alberta Court of Appeal

Rowbotham, J.A.

February 27, 2015.

Summary:

The plaintiff brought an action on behalf of farmers, asserting that the freight rates they paid for regulated grain unjustly enriched the defendant railways. The plaintiff applied for certification of the action as a class action. The defendants applied for summary judgment dismissing the plaintiff's statement of claim.

The Alberta Court of Queen's Bench, in a judgment reported at 555 A.R. 1, dismissed the plaintiff's application and allowed the defendants' application, dismissing the action. The plaintiff appealed.

The Alberta Court of Appeal, in a decision reported at 566 A.R. 247; 597 W.A.C. 247, dismissed the appeal. The plaintiff applied for leave to appeal.

The Supreme Court of Canada, in a decision reported at 474 N.R. 398, denied leave to appeal. In oral reasons the chambers judge awarded costs on the basis of double column 5 of Schedule C as if there had been a summary trial, reasonable travel expenses for two out-of-town counsel, and reasonable expenses of seven affiants. The defendant's proposed bill of costs ($488,622.41) was attached to the costs order which mirrored the oral reasons. The review officer assessed costs against the plaintiff of $423,028.67. The plaintiff applied for an extension of time to apply for permission to appeal the costs order and applied for leave to appeal the costs order.

The Alberta Court of Appeal, per Rowbotham, J.A., dismissed the applications.

Practice - Topic 8872

Appeals - Leave to appeal - Extension of time for application for - The plaintiff brought an action on behalf of farmers, asserting that the freight rates they paid for regulated grain unjustly enriched the defendant railways - The plaintiff applied for certification of the action as a class action - The defendants applied for summary judgment dismissing the plaintiff's statement of claim - The chambers judge dismissed the plaintiff's application and allowed the defendants' application, dismissing the action - The decision was affirmed on appeal - In oral reasons the chambers judge awarded costs on the basis of double column 5 of Schedule C as if there had been a summary trial, reasonable travel expenses for two out-of-town counsel, and reasonable expenses of seven affiants - The defendant's proposed bill of costs ($488,622.41) was attached to the costs order which mirrored the oral reasons - The review officer assessed costs against the plaintiff of $423,028.67 - The plaintiff applied for an extension of time to apply for permission to appeal the costs order - The Alberta Court of Appeal, per Rowbotham, J.A., dismissed the application - The plaintiff had to show: "(i) that there was a bona fide intention to appeal while the right to appeal existed and some special circumstance that would excuse or justify the failure to appeal; (ii) an explanation for the delay and that the other side was not so seriously prejudiced by the delay that it would be unjust to disturb the judgment, having regard to the position of both parties; (iii) that the appellant has not taken the benefits of the judgment from which appeal is sought; and (iv) that the appeal would have a reasonable chance of success if allowed to proceed" - There was no reasonable explanation for the delay - The record revealed the plaintiff's conscious decision to delay - The plaintiff had not satisfied the test for extending time to apply for leave to appeal - See paragraphs 3 to 8 - In any event, the court would not have granted leave to appeal - The plaintiff's arguments did not meet the threshold of demonstrating an error in principle or a palpable and overriding error - See paragraphs 9 to 14.

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - [See Practice - Topic 8872 ].

Cases Noticed:

Chutskoff Estate v. Bonora et al. (2014), 588 A.R. 303; 626 W.A.C. 303; 2014 ABCA 444, refd to. [para. 4].

Cairns v. Cairns et al., [1931] 4 D.L.R. 819; 26 Alta. L.R. 69 (Alta. C.A.), refd to. [para. 6].

Sohal v. Brar (1998), 223 A.R. 141; 183 W.A.C. 141; 1998 ABCA 375, refd to. [para. 6].

Lameman et al. v. Alberta et al. (2011), 521 A.R. 121; 2011 ABQB 724, refd to. [para. 9].

Covlin v. Minhas et al. (2009), 469 A.R. 250; 470 W.A.C. 250; 2009 ABCA 404, refd to. [para. 9].

Counsel:

E.F.A. Merchant, Q.C., for the applicant;

D.C. Hodson, Q.C., for the respondents.

These applications were heard on February 24, 2015, by Rowbotham, J.A., of the Alberta Court of Appeal, who delivered the following reasons for decision on February 27, 2015.

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19 practice notes
  • Abt Estate v Ryan, 2020 ABCA 133
    • Canada
    • Court of Appeal (Alberta)
    • April 6, 2020
    ...[2003] 3 SCR 371; Hamilton v Open Window Bakery Ltd, 2004 SCC 9, para 27, [2004] 1 SCR 303; Jackson v Canadian National Railway Company, 2015 ABCA 89, para 9, 599 AR 237; 1985 Sawridge Trust v Kennedy, 2017 ABCA 368, para 8, 61 Alta LR (6th) 21; Beazer v Tollestrup, 2019 ABCA 101, para [27]......
  • Anderson v. Alberta, 2020 ABCA 22
    • Canada
    • Court of Appeal (Alberta)
    • January 22, 2020
    ...¶ 14 (chambers) per Greckol, J.A.; Bun v. Seng, 2015 ABCA 165, ¶ 4 (chambers) per Picard, J.A. & Jackson v. Canadian National Railway, 2015 ABCA 89, ¶¶ 9-10; 599 A.R. 237, 240-41(chambers) per Rowbotham, [7] 1985 Sawridge Trust v. Kennedy, 2017 ABCA 368, ¶ 3; 61 Alta. L.R. 6th 21, 23 (c......
  • Elder Advocates of Alberta Society v Alberta Health Services, 2021 ABCA 67
    • Canada
    • Court of Appeal (Alberta)
    • February 22, 2021
    ...considering whether costs should be awarded against a representative plaintiff, and neither Jackson v Canadian National Railway Company, 2015 ABCA 89 nor Turner v Bell Mobility Inc, 2016 ABCA 188, imposes such a mandate. The trial judge here was permitted, but not required, to weigh the rul......
  • Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al., (2015) 606 A.R. 309
    • Canada
    • Court of Appeal (Alberta)
    • August 11, 2015
    ...at para. 17, 4 Alta LR (2d) 127 (App Div); L.C. v Alberta , 2009 ABCA 77 at para. 8, 448 AR 293; Jackson v Canadian National Railway Co. , 2015 ABCA 89 at para. 7; and Phoenix Land Ventures Ltd. v FIC Real Estate Fund Ltd. , 2015 ABCA 245 at paras. 14-5. Hudson and Royal Bank are decisions ......
  • Request a trial to view additional results
19 cases
  • Anderson v. Alberta, 2020 ABCA 22
    • Canada
    • Court of Appeal (Alberta)
    • January 22, 2020
    ...¶ 14 (chambers) per Greckol, J.A.; Bun v. Seng, 2015 ABCA 165, ¶ 4 (chambers) per Picard, J.A. & Jackson v. Canadian National Railway, 2015 ABCA 89, ¶¶ 9-10; 599 A.R. 237, 240-41(chambers) per Rowbotham, [7] 1985 Sawridge Trust v. Kennedy, 2017 ABCA 368, ¶ 3; 61 Alta. L.R. 6th 21, 23 (c......
  • Abt Estate v Ryan, 2020 ABCA 133
    • Canada
    • Court of Appeal (Alberta)
    • April 6, 2020
    ...[2003] 3 SCR 371; Hamilton v Open Window Bakery Ltd, 2004 SCC 9, para 27, [2004] 1 SCR 303; Jackson v Canadian National Railway Company, 2015 ABCA 89, para 9, 599 AR 237; 1985 Sawridge Trust v Kennedy, 2017 ABCA 368, para 8, 61 Alta LR (6th) 21; Beazer v Tollestrup, 2019 ABCA 101, para [27]......
  • Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al., (2015) 606 A.R. 309
    • Canada
    • Court of Appeal (Alberta)
    • August 11, 2015
    ...at para. 17, 4 Alta LR (2d) 127 (App Div); L.C. v Alberta , 2009 ABCA 77 at para. 8, 448 AR 293; Jackson v Canadian National Railway Co. , 2015 ABCA 89 at para. 7; and Phoenix Land Ventures Ltd. v FIC Real Estate Fund Ltd. , 2015 ABCA 245 at paras. 14-5. Hudson and Royal Bank are decisions ......
  • Elder Advocates of Alberta Society v Alberta Health Services, 2021 ABCA 67
    • Canada
    • Court of Appeal (Alberta)
    • February 22, 2021
    ...considering whether costs should be awarded against a representative plaintiff, and neither Jackson v Canadian National Railway Company, 2015 ABCA 89 nor Turner v Bell Mobility Inc, 2016 ABCA 188, imposes such a mandate. The trial judge here was permitted, but not required, to weigh the rul......
  • Request a trial to view additional results

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