In January, we observed that the Supreme Court of Canada’s decision in Hyrniak v. Mauldin on Ontario’s summary judgment rule would have effects in class action litigation, including effects outside of Ontario. The Alberta Court of Appeal’s March 19, 2014 decision in Windsor v. Canadian Pacific Railway is evidence that this is coming to fruition, as a defendant was granted summary judgment, dismissing large parts of the plaintiffs’ claims.
The decision praises summary judgment motions as means to end class proceedings, or parts thereof, efficiently. It also notes that the sentiment from Hyrniak is applicable in Alberta as well as Ontario. As more and more class proceedings are certified, and summary judgment becomes more and more accepted as an appropriate means to end civil actions, we expect to continue to see results similar to this one in the future.
The plaintiffs alleged losses due to contaminants released from the defendants’ locomotive repair facility. A class proceeding was certified in which the plaintiffs sought recovery of economic losses resulting from this alleged contamination. Their claim was based on negligence, nuisance, trespass and strict liability.
After certification, the plaintiffs conceded that the trespass claims should be dismissed. The defendant sought to strike out the nuisance and strict liability claims. The application judge only struck out part of the nuisance claims. The defendant appealed.
The Alberta Court of Appeal held that Hyrniak, with its emphasis on promoting timely and affordable access to the civil justice system, should be used to interpret Alberta’s summary judgment rule. In this regard, summary judgment motions should be used to resolve disputes where possible, increasing access to justice, and ensuring that parties are able to have their day in court in a cost-effective manner. The Court held that this is particularly the case when a dispute turns on questions of law.
The Court then reviewed the claim for strict liability, which required proof of four elements:
- The defendant made an “extraordinary”, “special” or “extra-hazardous” use of its land: This was not satisfied, as there was nothing unusual, special or extra-hazardous in the defendant’s using its land as a location to repair locomotives.
- The defendant must have brought something onto its lands that was “likely to do mischief if it escaped”: This was not satisfied because it required an element of foreseeability, and the uncontradicted evidence was that once the defendant was aware of the potential damage caused by the contaminant, it stopped using it.
- The substance must escape: This was not satisfied because the “escape” in this context must be an accident – here, the contaminant’s migration was expected. Nuisance and negligence are the proper causes of action to address damage allegedly caused in such circumstances.
- Damages must result: While there was some evidence that some properties suffered non-trivial damages (meaning that there was a genuine issue for trial with respect to part of the nuisance claims), given that all four criteria must be satisfied for a strict liability claim to succeed, the defendant was still entitled to summary judgment on the strict liability claim.
The claim for strict liability was thus summarily dismissed, illustrating defendants’ ability to end part of a certified class action without the expense and delay of a full-blown common issues trial.