On June 29, 2011, the Ontario Superior Court certified a class action against Renfrew Power Generation Inc. (“RPG”) in relation to alleged damages for trespass. The plaintiffs’ claim that RPG has intentionally and continuously trespassed on their land located on Round Lake over the years since 1917 by operating the Tramore Dam in a manner that has caused water to erode, and now cover, part of the plaintiffs’ properties.

BACKGROUND

The Plaintiffs are all owners of property on Round Lake which is part of the Bonneshere Watershed, a series of lakes and rivers running eastward out of Algonquin Park and emptying into the Ottawa River. The lakes in the Bonneshere Watershed are subject to increased water flows in the spring caused by snowmelt runoff and rain.  This increased water flows and levels of the water body have the potential to result in exposure of properties surrounding the lakes in the Bonneshere Watershed, including Round Lake, to wind and wave action.

RPG is a for profit corporation whose primary business is the generation of hydro electricity. RPG owns five control structures in the Bonneshere Watershed, including the Tramore Dam located on the east end of Round Lake. The Tramore Dam is used by RPG to create a reservoir for the storage of water to be used in the generation of electricity.

In 1917 the Ministry of Natural Resources issued a License of Operation (the “License”) authorizing the construction of the Tramore Dam and permitting the operator to raise the water level of Round Lake and flood the lands to an elevation of 107.5 feet.  In 2004, the Ministry of Natural Resources imposed a Water Management Plan (“WMP”) for the Bonneshere Watershed. The WMP provided for a minimum water level of Round Lake in addition to the 107.5 feet maximum water level permitted under the License.

RPG’s records going back to 1945 indicate that there have been 17 instances where the water level in Round Lake has exceeded the 107.5 feet maximum level permitted by the License. Notably, the plaintiffs claim is not based on these 17 occasions or the requirement of RPG to comply with the WMP. Instead, the basis for the plaintiffs’ claim is that the License should be interpreted to have created a fixed property line between public and private lands, based on the theoretical shoreline created if the water level in Round Lake was raised to 107.5 feet in 1917. The plaintiffs submit that this property line is exceeded when the water level of Round Lake is raised to 107.5 feet (or even at lower levels) as a result of the operation of the Tramore Dam by RPG and constitutes a continuing trespass.

THE CERTIFICATION DECISION

RPG acknowledged that the plaintiffs’ affidavit material and statement of claim disclosed a cause of action for the purposes of the section 5(1)(a) of the Class Proceedings Act, but submitted that the correct cause of action is in nuisance, not trespass.  Implicit in RPG’s argument is the submission that the plaintiffs’ claim does not disclose a reasonable cause of action in trespass.

After canvassing the recent case law with respect to the causes of action of trespass and nuisance, R. Smith J. held that the main issue underlying the plaintiffs claim is a determination of whether the License, which permitted the predecessors of RPG to raise the level of Round Lake to 107.5 feet, created a property line between public and private lands in 1917, and, as a result of RPG’s operation of the Tramore Dam, water has encroached on the property line established by the License thereby constituting trespass.  The plaintiffs contend that even had the water level not been raised above the 107.5 feet mark, RPG’s operation of the Tramore Dam would still have caused the trespass. Although the plaintiffs may have a claim in nuisance, they chose not to advance it. Nonetheless, R. Smith J held that there was some basis in fact to support a cause of action in trespass.  In other words, it was not “plain and obvious” that the plaintiffs’ statement of claim disclosed no reasonable cause of action.

Class Definition

The plaintiffs submitted a class definition which included all persons who own or who have owned lands contiguous to Round Lake during the period of 1990 and the date the claim is certified.  This class definition was opposed by RPG on the grounds that the selection of 1990 as a cut of date was arbitrary and that the class period should be reduced to fall within the limitation period.

While it was conceded that a former property owner could conceivably have a claim for damages during the period they owned the property, it was held that the discoverability principle for former owners would only related to their lack of knowledge of where their property line was. When an individual purchases property they are deemed to be aware of their property lines and, therefore, the Court approved a modified class definition that was limited to current owners on the date the action was commenced and to any owners or former owners who obtained or retained an assignment of the cause of action as part of the purchase or sale of the property.

Common Issues

The plaintiffs submitted that the resolution of whether the License created a property line between public and private lands in 1917 is necessary to the resolution of each proposed class member’s claim.  Justice R. Smith agreed that this determination was a common issue. Indeed, success for one member on this issue would mean success for all members, but not necessarily to the same extent, as the damage caused and extent of trespass would require individual assessment.

Preferable Procedure

The question of whether a class proceeding is the preferable procedure was considered with reference to the three accepted goals of a class proceeding: (a) judicial economy, (b) access to justice, and (c) behavioural modification.

  1. Judicial Economy

RPG submitted that the goal of judicial economy would not be advanced because there was no common issue.  Alternatively, RPG submitted that the individual issues overwhelmed the common issue such that the resolution of the common issue would not end the liability enquiry but only be the beginning.  Justice R. Smith disagreed and held that the resolution of the whether the License created a property line in 1917 would avoid a multiplicity of lawsuits and potential inconsistent rulings thus furthering the goal of judicial economy.

  1. Behaviour Modification

RPG submitted that behaviour modification was not a factor: there was no evidence that RPG had not been complying with the License and WMP. Accordingly, behaviour modification was not a factor in the Court’s determination of the preferable procedure.

  1. Access to Justice

There are approximately 450 potential class members.   The Court concluded that the determination of whether the License established a property line in 1917 would move this action forward and be determinative for all class members. Accordingly, a class proceeding was found to promote access to justice and allow the costs involved for all parties to be kept to a minimum.  Overall, a class proceeding was found to be the preferable procedure.

Representative Plaintiff

The proposed representative plaintiffs are Mr. Plaunt and Mr. Bowland both of whom have owned property on Round Lake for many years and have each gone to considerable expense to prevent further erosion and ameliorate the damages caused by the alleged trespass. Despite the ability of Mr. Plaunt to fairly and adequately represent the interests of the class being questioned by RPG, Mr. Plaunt together with Mr. Bowland, a well respected lawyer practicing in commercial law and real estate, were found to be acceptable representative plaintiffs.

As the common issue in this case is a matter of interpreting the License, R. Smith J., felt that it was appropriate to proceed to a summary judgment motion on this issue.  Once that issue had been determined, both the plaintiffs and defendants would be permitted to make renewed submissions on the appropriateness of certifying a class proceeding for any remaining issues.