4 total
Appeal dismissed; second action for continuing environmental contamination barred as abuse of process following earlier dismissal for delay.
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 resolved cross-motions for undertakings and refusals, ordering mutual disclosure of relevant documents while upholding litigation privilege over an investigative report.
The plaintiff, CLC Tree Services Ltd., brought a motion to compel answers to undertakings and refusals from examinations for discovery, alleging that the City of London granted preferential treatment in awarding arboricultural and vegetation management contracts to Davey Tree Expert Co. of Canada, Limited to the exclusion of CLC.
The defendant, the City of London, brought a cross-motion seeking answers to undertakings and refusals from CLC's examination, arguing that CLC's allegations were based on rumours and unnamed sources and that the scope of the claim needed to be defined.
The court addressed numerous undertakings and refusals, emphasizing the importance of parties working collaboratively to resolve discovery disputes and the broad scope of oral discovery under the Rules of Civil Procedure.
The court granted many of CLC's requests for disclosure while also ordering CLC to provide greater particularity regarding its damages claims and the factual basis for its allegations.
The court granted partial summary judgment dismissing historical coal tar contamination claims as an abuse of process but allowed newer benzene contamination claims to proceed.
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.
Motions to compel answers to discovery refusals and non-party production of an adjuster's file granted in part.
The defendant brought two motions in an action arising from a fire that damaged equipment at a mining project.
The first motion sought to compel the third party insurance broker to answer refusals from examinations for discovery.
The second motion sought to compel a non-party independent adjuster to produce its complete file and attend an examination.
The court ordered the insurance broker to answer most of the refusals, finding them relevant to the allegations regarding the review of insurance coverages.
Regarding the non-party production, the court found that the adjuster's file contained relevant documents but ordered a staged approach to production to balance the interests of the non-party.
The motion to examine the adjuster was adjourned pending the resolution of documentary production.
