Dina I. Awad

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 defendants Jing Liu and Yu De Xing (the "Xing defendants") brought a motion to enforce a Third Party Offer to Settle dated July 4, 2017, which they accepted on February 15, 2020.

The plaintiffs and Third Party argued that a subsequent global offer to settle from January 2020 impliedly withdrew the earlier offer, or that the court should exercise discretion due to inadvertent error.

The court found the two offers to be fundamentally distinct and that the later offer did not impliedly withdraw the earlier one.

The motion to enforce the July 2017 Offer to Settle was granted, and partial indemnity costs were awarded to the moving parties.