Jackson v. Canadian National Railway Co. et al., 2012 ABQB 652

• Judge: Martin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 23, 2012
• Citations: 2012 ABQB 652;(2012), 555 A.R. 1 (QB)

Jackson v. CNR (2012), 555 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.104

Thomas Richard Jackson (plaintiff) v. Canadian National Railway and Canadian Pacific Railway (defendants)

(1001 05744; 2012 ABQB 652)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Martin, J.

October 23, 2012.

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 dismissed the plaintiff's application and allowed the defendants' application, dismissing the action.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - 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 class proposed by the plaintiff was "all persons who delivered Grain (ie. Regulated Grain) to a Western Grain Delivery Point (an Elevator in Canada west of Armstrong, Ontario) between August 1, 1995 and July 31, 2007" - The Alberta Court of Queen's Bench held that the test under s. 5(1)(b) of the Class Action Act required an identifiable class and rational connection between the class and the common issues - The standard was low enough to admit of the possibility that the class definition would encompass individuals who might not have a claim - If one was to assume that the freight rates charged for the shipment of regulated grain were unjustly inflated by the defendants, the proposed class definition was sufficiently limited and rationally connected to the common issues - In the end result, the court dismissed the application - See paragraphs 70 to 77.

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) - 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 Alberta Court of Queen's Bench dismissed the application - There was no reasonable cause of action - There was no obligation under the applicable legislation for the defendants to charge freight rates for regulated grain that were reflective of decreases over time in the hopper car maintenance costs - The Canada Transportation Act (CTA) was a comprehensive legislative regime under which the Canada Transportation Agency was empowered to make certain determinations in regard to freight rates in accordance with the broad objectives set out in the National Transportation Policy - The regulatory regime effectively supplanted any common law obligation on the part of defendants with regard to freight rates, and replaced it with an arrangement whereby the determination of appropriate maximum rates and railway revenues had been made by Parliament and the Agency - The CTA and its predecessor legislation comprised an extensive and complete statutory regime governing the rates charged by the defendants in respect of the shipment of regulated grain - The operation of the statutory provisions and the charging of the rates and earning of revenues allowed under that legislative scheme provided a juristic reason barring restitution for unjust enrichment - While restitution was a flexible remedy and its ongoing evolution should not be unduly restrained, the court could not agree that it should extend to recovery of profits made in compliance with the terms of a regulatory regime - See paragraphs 52 to 69.

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) - 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 plaintiff proposed the following common issues: (a) between August 1, 1995 and July 1, 2007, did the defendants charge grain shipping rates that were based on overstated hopper car maintenance costs (HCMC) and which were therefore contrary to the intent and policy of the Budget Implementation Act 1995, Canada Transportation Act 1996, Canada Transportation Act 2000, and Railway Costing Regulations? (b) If so, were class members entitled to restitution of the amount by which the defendants' embedded HCMC exceeded their actual HCMC between August 1, 1995, and July 31, 2007? If so, could that amount be awarded as an aggregate monetary award, including on an average or proportionate basis? and (c) were the defendants liable to pay pre-judgment interest with respect of overstated HCMC? If so, in what amount? - The Alberta Court of Queen's Bench dismissed the application - The issues were not sufficiently common among the class - Liability could not be determined on a class-wide basis - See paragraphs 78 to 89.

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) - 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 Alberta Court of Queen's Bench dismissed the application - The individual determinations of liability required would be significant and would overwhelm the common issues - Further, the defendants advanced limitation issues - With respect to the limitation issue, an individual inquiry of each class member would be necessary to determine liability - As such, and taken together with the individual issues raised by the manner in which grain was sold and transported in Western Canada, and the difficult issue of whether the defendants' freight rates were passed on the grain producers in respect of each sale, individual issues would vastly predominate and a class proceeding would not therefore be the preferable procedure - See paragraphs 91 to 96.

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) - 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 Alberta Court of Queen's Bench dismissed the application - In view of the range of individual issues arising out of the different jurisdictions, issues of discoverability, different delivery points and the different ways in which producers sold grain for shipment, the administration of this class action would create greater difficulties than if various producers' or groups of producers' claims were to proceed separately - See paragraphs 99 and 100.

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) - 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 Alberta Court of Queen's Bench dismissed the application - In view of the highly complex nature of the liability claims and the potential availability of individual limitation defences to a vast number of claims, the proposed class action would not advance the principle of judicial economy and access to justice - See paragraphs 101 to 103.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment or replacement of representative plaintiff - 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 Alberta Court of Queen's Bench held that the plaintiff had satisfied the requirements of s. 5(1)(e) of the Class Action Act and would be an appropriate representative plaintiff - He would fairly and adequately represent the interests of the class; had produced a plan for the proceeding that set out a workable method; and that he did not have, in respect of the common issues, an interest that was in conflict with the interests of the other prospective class members - In the end result, the court dismissed the application - See paragraphs 104 to 109.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - 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 defendants applied for summary judgment dismissing the plaintiff's statement of claim - With respect to the cause of action in restitution, the plaintiff contended that the law of restitution was developing and though his claim might in some senses be novel, it would be inappropriate to grant summary judgment so as to rigidly limit the categories of restitution - The Alberta Court of Queen's Bench allowed the application - The courts had to remain open to a careful consideration of new categories of restitution, but it was not prepared to go so far as to expand the category of unjust enrichment to encompass the charging of rates or earning of revenues in compliance with the letter but not the claimed "spirit" of legislation, even if the court had concluded that there was a conflict between those two things in the Canada Transportation Act (CTA) - The principle that there had to be no juristic reason for the enrichment was well entrenched and not open to challenge - There were few more compelling examples of juristic reason than in the case at bar, where it was conceded that the defendants had charged freight rates and earned revenues that were at all times in compliance with the clearly legislated arithmetic set out in the CTA - See paragraphs 120 to 124.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - 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 defendants applied for summary judgment dismissing the plaintiff's statement of claim - The Alberta Court of Queen's Bench allowed the application - Contrary to the plaintiff's submissions, summary judgment was available on the basis of limitations - Because the Limitations Act defined "injury" to include "breach of duty", the alleged failure to charge "fair and reasonable" rates constituted the breach that triggered the limitation period - In view of the notorious nature of the issue and the plaintiff's interests and active involvement in the farming community, the essential nature of this claim, which was that the defendants, in violation of the spirit of the Canada Transportation Act and the National Transportation Policy therein, charged excessive freight rates that incorporated embedded rather than actual hopper car maintenance costs, was knowable long before April 16, 2008 - The court granted the defendants' application for summary judgment on the basis of the expiry of the limitation periods contained in ss. 3(1)(a) and (b) of the Limitations Act - See paragraphs 125 to 135.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See both Practice - Topic 5702 ].

Railways - Topic 7009

Tariffs, rates and tolls - General - Transportation of western grain - [See first Practice - Topic 209.3 and first Practice - Topic 5702 ].

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - [See first Practice - Topic 209.3 and first Practice - Topic 5702 ].

Restitution - Topic 102

Unjust enrichment - Bars - Statutory code - [See first Practice - Topic 209.3 and first Practice - Topic 5702 ].

Cases Noticed:

Canadian National Railway Co. et al. v. Canadian Transportation Agency et al. (2008), 383 N.R. 349; 2008 FCA 363, leave to appeal refused (2009), 396 N.R. 395 (S.C.C.), refd to. [para. 36].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 55].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345, refd to. [para. 56].

Alberta Municipal Retired Police Officers' Mutual Benefit Society et al. v. Alberta et al. (2010), 504 A.R. 41; 2010 ABQB 458, refd to. [para. 56].

Ferroequus Railway Co. v. Canadian National Railway Co. et al., [2004] 2 F.C.R. 42; 313 N.R. 363; 2003 FCA 454, refd to. [para. 59].

Canadian National Railway Co. v. Moffatt et al., [2002] 2 F.C. 249; 278 N.R. 83; 2001 FCA 327, refd to. [para. 60].

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2005] 4 F.C.R. 473; 330 N.R. 337; 2005 FCA 79, refd to. [para. 63].

Apotex v. Abbott Laboratories Ltd., 2011 ONSC 3988, refd to. [para. 68].

Gladstone v. Canada (Attorney General), [2005] 1 S.C.R. 325; 332 N.R. 182; 210 B.C.A.C. 1; 348 W.A.C. 1, refd to. [para. 68].

Windsor v. Canadian Pacific Railway Ltd. (2007), 417 A.R. 200; 410 W.A.C. 200; 2007 ABCA 294, refd to. [para. 73].

Ragoonanan et al. v. Imperial Tobacco Canada Ltd. et al., [2005] O.T.C. 950; 78 O.R.(3d) 98 (Gen. Div.), affd. (2008), 236 O.A.C. 199; 54 C.P.C.(6th) 167 (Div. Ct.), refd to. [para. 74].

Cuff et al. v. Canadian National Railway Co., [2007] A.R. Uned. 674; 2007 ABQB 761, refd to. [para. 75].

Mouhteros v. DeVry Canada Inc. (1998), 70 O.T.C. 138; 41 O.R.(3d) 63 (Gen. Div.), refd to. [para. 76].

Pro-Sys Consultants Ltd. v. Infineon Technologies AG et al. (2009), 277 B.C.A.C. 271; 469 W.A.C. 271; 2009 BCCA 503, leave to appeal refused (2010), 409 N.R. 385; 299 B.C.A.C. 322; 508 W.A.C. 322 (S.C.C.), refd to. [para. 76].

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. 82].

Chadha v. Bayer Inc. et al. (2003), 168 O.A.C. 143; 63 O.R.(3d) 22 (C.A.), leave to appeal refused (2003), 320 N.R. 399; 191 O.A.C. 397 (S.C.C.), refd to. [para. 86].

Markson v. MBNA Canada Bank (2007), 224 O.A.C. 71; 2007 ONCA 334, leave to appeal refused (2007), 383 N.R. 381; 248 O.A.C. 396 (S.C.C.), refd to. [para. 87].

T.L. v. Director of Child Welfare (Alta.) (2009), 457 A.R. 141; 457 W.A.C. 141; 2009 ABCA 182, refd to. [para. 91].

Kristal Inc. et al. v. Nicholl and Akers et al., [2006] A.R. Uned. 257; 2006 ABQB 168, revd. [2007] A.R. Uned. 52; 2007 ABCA 162, refd to. [para. 94].

Daniels et al. v. Canada (Attorney General) (2003), 230 Sask.R. 120; 2003 SKQB 58, revd. (2003), 232 Sask.R. 64; 294 W.A.C. 64 (C.A.), leave to appeal refused (2003), 326 N.R. 39; 257 Sask.R. 315; 342 W.A.C. 315 (S.C.C.), refd to. [para. 95].

Buffalo et al. v. Samson Cree Nation et al. (2008), 337 F.T.R. 215; 2008 FC 1308, affd. (2010), 405 N.R. 232; 2010 FCA 165, refd to. [para. 95].

Knight v. Imperial Tobacco Canada Ltd. et al., [2005] B.C.T.C. 172; 2005 BCSC 172, refd to. [para. 95].

Knight v. Imperial Tobacco Canada Ltd. et al. (2009), 280 B.C.A.C. 160; 474 W.A.C. 160; 2009 BCCA 541, refd to. [para. 95].

Graham et al. v. Imperial Parking Canada Corp., [2010] O.T.C. Uned. 6217; 2010 ONSC 6217, refd to. [para. 95].

Graham et al. v. Imperial Parking Canada Corp. (2011), 279 O.A.C. 342; 2011 ONSC 991 (Div. Ct.), refd to. [para. 95].

Penney et al. v. Bell Canada, [2010] O.T.C. Uned. 2801; 2010 ONSC 2801, refd to. [para. 103].

Paron et al. v. Alberta (Minister of Environmental Protection) et al. (2006), 402 A.R. 85; 2006 ABQB 375, refd to. [para. 106].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 112].

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2011), 286 O.A.C. 3; 2011 ONCA 764, refd to. [para. 113].

Murphy Oil Co. et al. v. Predator Corp. et al. (2006), 384 A.R. 251; 367 W.A.C. 251; 2006 ABCA 69, refd to. [para. 118].

Tottrup et al. v. Clearwater No. 99 (Municipal District) (2006), 401 A.R. 88; 391 W.A.C. 88; 2006 ABCA 380, refd to. [para. 119].

Borchers v. Kulak et al. (2009), 479 A.R. 136; 2009 ABQB 457, refd to. [para. 127].

Edwards v. Fisher et al., [2010] A.R. Uned. 663; 2010 ABQB 594, refd to. [para. 127].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), pp. 263, 264 [para. 58].

Counsel:

E.F.A. Merchant, Q.C., C.R. Churko and A. Tibbs, for the plaintiff;

R.W. Leurer, Q.C., D. Hodson, Q.C., V.M. Enweani and A.J. Stonhouse, for the defendants.

These applications were heard between February 1 and 9, 2012, by Martin, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on October 23, 2012.