Windsor v Canadian Pacific Railway Ltd.,

• Judge: Paperny, Watson and Slatter, JJ.A.
• Neutral Citation: 2014 ABCA 108
• Date: 06 March 2014
• Court: Court of Appeal (Alberta)

Windsor v. CPR (2014), 572 A.R. 317; 609 W.A.C. 317 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MR.059

David Windsor and Agnes Windsor (respondents/plaintiffs) v. Canadian Pacific Railway Ltd. (appellant/defendant)

(1301-0252-AC; 2014 ABCA 108)

Indexed As: Windsor v. Canadian Pacific Railway Ltd.

Alberta Court of Appeal

Paperny, Watson and Slatter, JJ.A.

March 19, 2014.

Summary:

The plaintiffs sought certification of their action under the Class Proceedings Act. They alleged that their property and the properties of the proposed class had groundwater beneath them that was contaminated with trichloroethylene (TCE), a solvent used by the defendant in its railway yard. They alleged that the TCE had evaporated into the air and seeped into homes and commercial buildings on the properties causing, inter alia, loss of property and rental values. They alleged negligence, nuisance, trespass and strict liability.

The Alberta Court of Queen's Bench, in a decision reported at 402 A.R. 162, allowed the application. The defendant appealed.

The Alberta Court of Appeal, in a decision reported at 417 A.R. 200; 410 W.A.C. 200, allowed the appeal in part. The certification judge had defined the class as all those owners whose land was "affected" by TCE, making it merit based or circular. The Court of Appeal deleted the word "affected" from the class definition, but otherwise dismissed the appeal. There were varying levels of TCE underneath the properties, which divided them roughly into two categories. The first category consisted of properties where the measurable amounts of TCE exceeded Health Canada thresholds. The defendant had installed sub-slab depressurization systems under approximately 70 of these properties, which had exhausted the TCE vapours and effectively reduced the TCE concentrations below the Health Canada thresholds. The second category consisted of properties with levels of TCE below the Health Canada thresholds without any remediation. The defendant applied for summary dismissal of the following parts of the action: (a) the strict liability claim by all class members, under the doctrine in Rylands v. Fletcher; (b) the claim in nuisance by class members with sub-slab depressurization systems in place; and (c) the claim in nuisance by class members without sub-slab depressurization systems. The plaintiffs conceded, before the application proceeded, that the trespass claims should be dismissed. The defendant did not attempt to summarily dismiss the negligence claims.

The Alberta Court of Queen's Bench: (a) declined to dismiss the claim based on strict liability, under the doctrine in Rylands v. Fletcher, by any class member, holding that there were genuine issues for trial respecting those claims; (b) declined to dismiss the claim for nuisance by the class members with sub-slab depressurization systems in place, holding that there were genuine issues for trial respecting those claims; and (c) granted the application and summarily dismissed the nuisance claim by the class members without sub-slab depressurization systems in place. The defendant appealed the first two parts of the ruling, alleging errors in the assessment of the evidence, the statement of the legal tests, and the application of the test for summary dismissal. The plaintiffs applied to introduce fresh evidence on appeal which suggested that there had been a diminution in property values as a result of the presence of TCE.

The Alberta Court of Appeal dismissed the application to introduce the fresh evidence because it was possible to resolve the appeal without reference to that aspect of the damage claim. The court allowed the appeal respecting the Rylands v. Fletcher claims and summarily dismissed those claims. The court held that the trial judge did not err in allowing the claim relating to the properties with sub-slab depressurization systems to proceed to trial. The costs of the summary dismissal application were remitted back to the case management judge for reconsideration in light of the changed outcome. The defendant was entitled to the assessed costs of the appeal and the fresh evidence application.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Alberta Court of Appeal discussed the test for summary judgment - The court stated that rule 7.3 of the Alberta Rules of Court provided a procedure for resolving disputes without a trial (as compared with Alberta's summary trial procedure which was a form of trial) - Viva voce evidence might exceptionally be allowed in chambers applications (rule 6.11(1)(g)) - New rule 7.3 called for a more holistic analysis of whether the claim had "merit", and was not confined to the "genuine issue for trial" test found in the previous rules - Since one of the objectives of class proceedings was to provide affordable access to justice, these principles also applied to the class procedure - When the resolution of the dispute turned primarily on issues of law, summary judgment was often appropriate - Trials were for determining facts - See paragraphs 11 to 16.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiffs in this class proceeding alleged that their property and the properties of the class had groundwater beneath them that was contaminated with trichloroethylene (TCE), a solvent used by the defendant in its railway yard - They alleged that the TCE had evaporated into the air and seeped into homes and commercial buildings on the properties causing, inter alia, loss of property and rental values - They alleged, inter alia, strict liability under the doctrine in Rylands v. Fletcher - The Alberta Court of Appeal summarily dismissed the strict liability claims on appeal, holding that the plaintiffs failed to raise a genuine issue respecting the first, second or third part of the Rylands v. Fletcher test - First, in context, the use of the lands was not unusual - Regarding the second test, "likely to do mischief if it escaped", the defendant's uncontradicted evidence was that it was not foreseeable that the migration of TCE would cause harm to neighbouring lands - Third, a harmful substance did not "escape" under the Rylands v. Fletcher rule unless the migration resulted from some sort of unintended mishap or accident - Migration that was a normal and intended consequence of the activity on the defendant's land was not sufficient - Here, the discharge of the substances into the settling pond, and the TCE's resultant migration into the surrounding groundwater was a result of deliberate conduct which was part of the repair process, and not any accident or misadventure - See paragraphs 17 to 24.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See both Practice - Topic 5702 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - The Alberta Court of Appeal stated that "A party faced with an application for summary judgment must put its best foot forward, and present evidence to show sufficient 'merit' to establish a genuine issue requiring a trial with respect to the outstanding issues ... Speculating that evidence might be available at a trial is not sufficient to create a genuine issue requiring a trial." - See paragraph 21.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - The plaintiffs in this class proceeding alleged that their property and those of the class had groundwater beneath them that was contaminated with trichloroethylene (TCE), a solvent used by the defendant in its railway yard - They alleged that the TCE had evaporated into the air and seeped into homes and commercial buildings on the properties causing, inter alia, loss of property and rental values - There were varying levels of TCE underneath the properties, which divided them roughly into two categories - The first category consisted of properties where the measurable amounts of TCE exceeded Health Canada thresholds - The defendant had installed sub-slab depressurization systems under approximately 70 of these properties, which had exhausted the TCE vapours and effectively reduced the TCE concentrations below the Health Canada thresholds - The second category consisted of properties with levels of TCE below the Health Canada thresholds without any remediation - On appeal, the Alberta Court of Appeal held that the case management judge did not err in dismissing the nuisance claim respecting those properties without sub-slab depressurization systems, because that class of claimant had only shown nominal or trivial damages - Further, there was no error in allowing the claim by the owners of properties with sub-slab depressurization systems to proceed to trial, because the plaintiffs had demonstrated a genuine issue requiring a trial respecting the damages pleaded - See paragraphs 25 to 31.

Practice - Topic 5708.1

Judgments and orders - Summary judgments - Bar to application - Merit to claim and facts to substantiate claim - [See second Practice - Topic 5708 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - [See Practice - Topic 8800.2 ].

Practice - Topic 8800.1

Appeals - Duty of appellate court regarding findings of mixed law and fact by a trial judge - [See Practice - Topic 8800.2 ].

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - A defendant appealed a case management judge's decision on the defendant's summary judgment motion - The Alberta Court of Appeal stated that "Questions of law are reviewed for correctness. That would include the definition of the legal components of the torts of nuisance and strict liability under Rylands v Fletcher. The legal test for summary dismissal is also subject to review for correctness. However, the case management judge's assessment of the facts, his application of the law to those facts, and the ultimate determination on whether summary dismissal is appropriate are entitled to deference ..." - See paragraphs 9 and 10.

Torts - Topic 1002

Nuisance - General principles and definitions - Elements of - [See third Practice - Topic 5708 ].

Torts - Topic 2004

Strict liability - General - Application of rule in Rylands v. Fletcher - [See second Practice - Topic 5702 ].

Torts - Topic 2096

Strict liability - Dangerous things or activities - What constitutes unnatural use - [See second Practice - Topic 5702 ].

Cases Noticed:

Rylands v. Fletcher (1868), L.R. 3 H.L. 330, appld. [para. 4].

Hryniak v. Mauldin (2013), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, appld. [para. 10].

Stobbe v. Paramount Investments Inc. et al. (2013), 566 A.R. 155; 597 W.A.C. 155; 2013 ABCA 384, refd to. [para. 10].

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. 12].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 12].

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. 16].

Smith v. Inco Ltd. (2011), 284 O.A.C. 13; 107 O.R.(3d) 321; 2011 ONCA 628, refd to. [para. 17].

Burnie Port Authority v. General Jones Pty. Ltd. (1994), 179 C.L.R. 520 (Aust. H.C.), refd to. [para. 17].

Transco plc v. Stockport Metropolitan Borough Council, [2004] 2 A.C. 1 (H.L.), refd to. [para. 17].

Canada (Attorney General) v. MacQueen - see MacQueen et al. v. Nova Scotia et al.

MacQueen et al. v. Nova Scotia et al. (2013), 338 N.S.R.(2d) 133; 1071 A.P.R. 133; 46 C.P.C.(7th) 280; 2013 NSCA 143, refd to. [para. 18].

Tock and Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181; 104 N.R. 241; 82 Nfld. & P.E.I.R. 181; 257 A.P.R. 181, refd to. [para. 18].

Cambridge Water Co. v. Eastern Counties Leather Plc., [1994] 2 A.C. 264 (H.L.), refd to. [para. 20].

Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation) (2013), 441 N.R. 342; 301 O.A.C. 281; 2013 SCC 13, refd to. [para. 25].

Statutes Noticed:

Rules of Court (Alta.) (2010), rule 7.3 [para. 14].

Counsel:

W.S. Klym, Q.C., for the respondents;

J.E. Virtue and J.D. Sadovnick, for the appellant.

This appeal was heard on March 6, 2014, by Paperny, Watson and Slatter, JJ.A., of the Alberta Court of Appeal. The court delivered the following memorandum of judgment on March 19, 2014.