COURT FILE NO.: 12721/09
DATE: 2012/11/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHARON LADD
E. Gillespie and N. Smith, for the Responding Party, Plaintiff
Respondent (Plaintiff)
- and -
VALE CANADA LIMITED
D. Hamilton/C. A. Wayland/H. M. Rosenberg, for the Moving Party, Respondent
Moving Party (Defendant)
HEARD: September 17 and 18, 2012
The Hon. Mr. Justice Kent
Reasons for Ruling on a Motion
Overview:
[1] The defendant Vale Canada Limited (Vale) formerly Inco Limited, seeks summary judgment striking the claims of the plaintiff Sharon Ladd (Ladd) in strict liability (Rylands v. Fletcher), negligence and nuisance. Counsel for both parties agree that the claim in strict liability must be struck and a consent order is, therefore, made accordingly.
[2] The claims in negligence and nuisance need to be addressed first in terms of the extent to which they may statute barred.
Background:
[3] Ladd seeks to recover for injury and harm that she discovered in December, 2000. That date, for purposes of this motion, is not in dispute. In the ordinary course, the limitation period would have expired in 2006. The plaintiff’s claim for damages to her health, her crops and plants, her livestock and her devalued farm property was commenced in November 2009, which was well beyond the expiration of the limitation period.
[4] Counsel for Ladd contends that for a significant portion of the limitation period, March 2001 to June 2009, time was not running. He relies upon Sec. 28 of the Class Proceedings Act, 1992, S.O. 1992, c. 6.
[5] Section 28 of the CPA reads as follows:
“28.(1) Subject to subsection (2), any limitation period applicable to a cause of action asserted in a class proceeding is suspended in favour of a class member on the commencement of the class proceedings and resumes running against the class member when,
(a) the member opts out of the class proceeding;
(b) an amendment that has the effect of excluding the member from the class is made to the certification order;
(c) a decertification order is made under section 10;
(d) the class proceeding is dismissed without an adjudication on the merits;
(e) the class proceeding is abandoned or discontinued with the approval of the court; or
(f) the class proceeding is settled with the approval of the court, unless the settlement provides otherwise.
(2) Where there is a right of appeal in respect of an event described in clauses
(1)(a) to (f), the limitation period resumes running as soon as the time for appeal
has expired without an appeal being commenced or as soon as any appeal
has been finally disposed of.”
[6] In March, 2001 a class action was commenced on behalf of residents of Port Colborne, Ontario. The action alleged that emissions from Vale’s Port Colborne Refinery had caused harm to the health and property of the area residents. Ladd was a member of the class until her exclusion in June of 2009. She was excluded on the basis that her property was agricultural rather than residential. Ladd’s counsel maintains that the limitation period was suspended by the operation of the Class Proceedings Act from March, 2001 until June 2009 and that her action commenced in November of 2009 is, therefore, not statue barred.
[7] Counsel for Vale asks the court to look further and to determine the effect of the abandonment of many claims within the class action. That abandonment occurred in December 2002. It is apparent that the only claim remaining in the class action after December 2002 was the claim by the class that their properties had been devalued. That was the only claim that the class pursued at trial before Henderson, J. See: Pearson/Smith v. Inco Ltd. 2010 ONSC 3790, 2010 O.N.S.C. 3790.
[8] It must be determined whether the suspension of the limitation period for Ladd’s claims ceased as of abandonment by the class in 2002, or in June 2009 when she was excluded from the class.
Analysis:
[9] Counsel for Ladd argues that a claim for a head of damages is not the same thing as a cause of action and that an individual who abandons a claim for a specified head of damages has not abandoned his/her cause of action. Is there, however, any policy reason to treat the two abandonments differently?
[10] In Coulson v. Citigroup Global Markets Canada Inc. 2010 ONSC 1596, [2010] O.J. No. 1109, at para. 49,
Perell, J. observed:
“The purpose of s. 28 of the Class Proceedings Act, 1992 is to protect class members from the operation of limitation periods until it has been determined whether class members may obtain access to justice through membership in a class proceeding as an alternative to obtaining access to justice by pursuing individual actions. In the absence of s. 28, class members would have to commence a multitude of individual actions and then, if a class action was certified, the class members who have the choice of opting out or of abandoning or having their individual actions stayed. The operation of s. 28 makes it unnecessary for class members to commence multitudes of individual claims by protecting them from the operation of limitation periods until it is determined whether they actually have the option of membership in a class proceeding that mentions their claim.”
[11] This court agrees with and accepts his analysis.
[12] After the class abandoned all damage claims except for the devalued property claim, Ladd had no prospect of access to justice for any remedy beyond that head of damages. She was unable to obtain any access to justice for any other claims. If she wanted to pursue those claims, she needed to commence her own separate action.
[13] It is consistent with the rationale of the Class Proceedings Act, sec. 28 that the suspension of the limitation period on Ladd’s abandoned damages claims ceased as of the date of abandonment.
[14] While treating damage claims in the same manner as causes of action may seem to be a harsh interpretation and application of the law, it must be observed that for most class members it would be easier to understand. If the member wanted to pursue a claim for damages that was being abandoned by the class, the member could opt out of the class and pursue a claim for damages that was no longer being pursued by the class.
[15] The plaintiff’s claims, therefore, for damages other than the devaluation of her property are statute barred. The limitation period for those claims recommenced with the abandonment by the class in December 2002 and expired well before the plaintiffs’ action was commenced in November 2009.
[16] The plaintiff’s claim for devaluation of her property was continued by the class until she was excluded in June 2009. Her action, having been commenced in 2009, was commenced within the limitation period and she may continue, therefore, to pursue that claim for the devaluation of her property.
Is a trial required?
[17] An argument can be made that the findings ultimately made by the Ontario Court of Appeal in the Pearson/Smith, class action make it very difficult for Ladd to pursue her remaining claim. There is, however, no estoppel operating to prevent her from trying. Succeeding in her cause of action and establishing causation may be an uphill battle, but she does have some evidence.
[18] In particular, I refer to her affidavit sworn 13 February 2012. In para. 16 and 17 of that affidavit she deposes that she has been advised by a real estate agent and informed by an experience real estate broker that:
her property has suffered a major reduction in value as a result of the contamination discovered to be present in the soil and the water
that the farm values in the area where her property is located have been negatively impacted and that farms in the area take much longer to sell than farms not affected by the contamination from the refinery.
that disclosure of contamination must be disclosed to any potential purchaser
[19] Clearly, this is a complex case where there will need to be reliance upon expert testimony. The plaintiff alleges, in addition to all of the foregoing, that the defendant’s tortious conduct continues, although the pleading and particulars are somewhat scanty and the evidence is limited.
[20] In view of the foregoing, the plaintiff has met the test required by rule 20 as elaborated upon in Combined Air Mechanical Services Inc. v. Flesch, 2011, ONCA 764.
[21] In this case, which is complex from both a factual and legal prospective, this court is unable to find that the plaintiff does not have a genuine issue for trial. She is, therefore, permitted to pursue her causes of action in negligence and private nuisance resulting in damages for her devalued property together with such other damages to her health, her crops and plants and her livestock as alleged with the latter damages alleged being limited to those damages that occurred within the context of the alleged continuing tortious activity of the defendant.
Order accordingly.
Costs:
[22] If counsel are unable to agree as to costs, written submissions may be made with the plaintiff’s submissions due within 15 days of the release of this order and the defendants within 15 days thereafter. Submissions must be limited to a maximum of 4 pages.
KENT, J.
Released: November 16, 2012
COURT FILE NO.: 12721/09
DATE: 2012/11/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHARON LADD
Respondent (Plaintiff)
- and -
VALE CANADA LIMITED
Moving Party (Defendant)
REASONS FOR JUDGMENT
KENT, J.
Released: November 16, 2012