Lana J. Finney

The appellant railway company appealed a partial summary judgment dismissing its claims for ongoing coal tar contamination as an abuse of process.

The appellant had previously commenced an action in 1989 for historical and continuing coal tar migration, which was dismissed for inordinate delay and failure to preserve evidence.

The appellant commenced a new action in 2014 claiming damages for continuing migration since 2012.

The Court of Appeal dismissed the appeal, holding that the continuing tort claims were exhausted by the dismissal of the 1989 action, and allowing the 2014 action to proceed would undermine finality and bring the administration of justice into disrepute.

The court granted summary judgment dismissing Canadian National Railway Company's claims relating to coal tar contamination as an abuse of process, since those claims had already been dismissed in 2014 due to inordinate delay and failure to preserve evidence.

The court found that the same fairness concerns that prevented a fair trial in 2014 persisted.

However, the court allowed CN's claims regarding benzene contamination to proceed, finding that these claims did not crystallize until 2014 and were not part of the earlier action.

The decision clarifies the application of res judicata and abuse of process in the context of environmental contamination and continuing torts.

The plaintiffs brought a motion for an order to permit them to obtain soil and groundwater samples from a neighbouring property owned by a non-party, after the action had been set down for trial.

The plaintiffs sought the samples to allow their expert to perform forensic environmental testing to respond to the defendants' expert reports regarding PCB contamination.

The court granted leave to bring the motion, finding the expert's need for additional sampling constituted an unexpected change in circumstances.

The court also granted the inspection order, concluding that the testing would be useful and probative in determining whether the contaminants on the plaintiffs' property originated from the neighbouring property.

The appellant purchased a commercial property that was contaminated by hydrocarbons that had migrated from an adjacent former gas station property.

The respondents moved for summary judgment to dismiss the action as statute-barred under the Limitations Act, 2002, arguing that the appellant knew or ought to have known of the contamination more than two years before commencing the action.

The motion judge granted the motion, finding that the appellant had knowledge of the claim by March 9, 2012, or alternatively by March 30, 2012.

The Court of Appeal allowed the appeal, finding that the motion judge made palpable and overriding errors by equating the appellant's suspicion of contamination with actual knowledge of contamination, and by failing to consider the relevant circumstances of the multi-property transaction and the waiver of conditions.

The defendant, Imperial Oil Ltd., moved for summary judgment to dismiss the plaintiff's (Valco Instruments Canada Corporation) action for damages in negligence and nuisance due to petroleum hydrocarbon (PHC) migration.

Imperial Oil argued the claim was statute-barred by the Limitations Act, having been discovered in 2001 or 2006, and that there was no genuine issue for trial regarding continuing nuisance.

The court found the claim for initial damages was discovered in 2006, making it statute-barred by October 2008.

However, the court found a genuine issue for trial regarding continuing nuisance, specifically whether there has been ongoing migration of PHCs from the defendant's property to the plaintiff's property since November 4, 2009, and the extent of resulting damages.

The motion for summary judgment was granted in part, dismissing the initial claim but allowing the continuing nuisance claim to proceed to trial.

The defendants brought a motion for summary judgment dismissing an action alleging environmental contamination of the plaintiff’s property by petroleum hydrocarbons migrating from a neighbouring former gas station site.

The defendants argued the claim was statute‑barred under the Limitations Act because it was commenced more than two years after the claim was discoverable.

The court held that the plaintiff knew or ought reasonably to have known of the material facts supporting a claim by March 2012 through environmental investigations conducted during its due diligence period.

The later Phase II environmental report merely confirmed suspicions already known.

The court also rejected the argument that ongoing contamination constituted continuing damage that created a new limitation period due to lack of evidence of fresh damages.

Summary judgment was granted dismissing the action as out of time.