ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-02-0009-00

DATE: 2015/Oct./01

BETWEEN:

Attorney General for Ontario

Plaintiff
(Defendant by Counterclaim)

– and –

Blackbird Holding Ltd., Joan Crowe, Nathan Crowe, Goodyear Canada Inc., Burprom Construction Inc. and Estate of George Crowe

Defendants
(Plaintiffs by Counterclaim)

Mr. Ronald E. Carr and Mr. Polla Crown Law Office Civil , for the Plaintiff (Defendant by Counterclaim)

Sherry Thompson and Mr. Pretsell, for the Defendants

HEARD: April 1, 2015

The Honourable mr. justice j. m. johnston

RULING ON motion for summary judgment/motion for dismissal

[1] These are Reasons for Decision in relation to two motions argued on April 1, 2015. The Defendants seek an Order for Dismissal of the Plaintiff’s action due to delay and\or an Order for Dismissal of the action as statute barred. In response to this motion, the Plaintiff, The Attorney General for Ontario, seeks an Order for Summary Judgment against two of the Defendants: the Estate of George Crowe and Blackbird Holding Ltd. Specifically, the Plaintiff seeks an award of damages against the aforesaid Defendants in the amount of $684,092.03 together with pre and post judgment interest and costs. The motions are separate and distinct, but there is overlap.

[2] At the outset of the motions the Plaintiff and the defendant Goodyear announced resolution as to the claim between them. The pleadings were amended on consent, removing Goodyear Canada Inc. as a party to the action.

Background Facts:

[3] The Defendants, Blackbird Holding Ltd. (hereinafter referred to as Blackbird) and George Crowe were charged with breaches of Section 16(1) of the Ontario Water Resources Act and Section 13(1)(a) and Section 27(b) of the Environmental Protection Act. A trial was held in Provincial Offences Court, before Justice of the Peace T. S. Walker and his decision was rendered on May 17, 1990. Both Blackbird and George Crowe personally were convicted. Initially, a jail sentence of six months was imposed upon Mr. Crowe together with a $90,000.00 fine. Upon appeal to Ontario Court of Justice (Provincial Division), Justice Charles D. Anderson upheld the convictions to both defendants, but reduced the sentence to fifteen days in jail for Mr. Crowe and a $30,000.00 fine.

[4] The charges related to the disposal and burying of drums containing waste on the property of Blackbird. Blackbird and Burprom Construction Inc. were separate incorporated companies, the operating mind of both was George Crowe and the directors included the George Crowes wife Joan Crowe and his son, Nathan Crowe. In 1974 Burprom, entered into an Agreement with Goodyear Canada, wherein Burprom would dispose of barrels from Goodyear’s Bowmanville, Ontario facility.

[5] In reviewing the conviction by Justice of the Peace Walker, Justice Anderson recited the findings of fact by the trial judge. At page 11 of the decision, Justice Anderson stated:

“The prosecution in this case called evidence to establish that there was a difficulty with drinking water in the area of the accused property (Blackbird’s property). The prosecution further led evidence to establish that investigation by Manometer showed three significant anomalies in the ground, on the lands, under the control of the accused (Blackbird) and that subsequent investigation by digging revealed some buried drums and the presence of a black oily liquid in and around the drums and emanating from them.”

[6] The POA trial was adjourned on December 8, 1989, to January 23, 1990. The Crown had closed its case and the defence called evidence, including evidence of the accused, George Crowe, but had not yet closed its case. During the interval of the adjournment, the Crown had obtained and executed search warrants for the property of the accused and determined that there were, in fact, 185 buried barrels of waste on the accused’s property (Blackbird property). Following a voir dire before His Worship, Mr. Justice Walker, the Crown was allowed to open its case and lead the evidence in question. The Justice of the Peace found as a fact that all of the contaminants in the 185 barrels were placed on or in the lands of the accused with his knowledge (George Crowe). Justice Anderson, sitting on appeal, found that there was evidence in which the Justice of the Peace could so conclude. The Justice of the Peace rejected George Crowe’s testimony, stating at page 15 of his decision:

“I have considered all of the evidence in this case and I find no evidence supports the defendant’s contention that he had no idea how the drums that had been retrieved from the ground on the property found their way there.”

[7] Further he stated:

“In conclusion, I find the evidence of Mr. Crowe in some instances to be farfetched, and so much so that it is unbelievable. There is no corroborating evidence whatsoever to support Mr. Crowe’s evidence.” (Page 15 Walker decision)

[8] Justice Anderson concluded:

“The Justice also found as a fact that the drums leaked and discharged contaminants into the natural environment and into the ground water continuously from June 28, 1980, until all of the barrels and their contents were removed. He further found that this discharge impaired the water quality and the natural environment.” (Anderson decision page 14)

[9] Justice Anderson concluded both charges were the same and that a conviction on the one precluded conviction on the other, as set out in Keinapple v. The Queen. Justice Anderson, therefore, directed conviction under Section 16(1) of the Ontario Water Resources Act and stayed the charge under the Environmental Protection Act. Justice Anderson, when dealing with sentence, found that the accused, George Crowe, knew that the material was in the ground and Mr. Crowe, chose to place the material in the ground. It was further found that following the discovery of the material Mr. Crowe was “less than frank with the Ministry” as to the extent of his knowledge and, while ostensibly assisting them in their investigation, he must similarly have withheld information from them which he has been found to have been aware. (Anderson decision page 17)

Investigation:

[10] The investigation into this matter by the government commenced on or about May 6, 1988, when the Kingston District office of the Ministry of Environment (MOE) received a complaint from a resident in the Township of Ameliasburgh regarding potential impact to his residential water well. Samples of the complainant’s water well were collected for analysis and they indicated elevated levels of chlorinated organics in the water well. Further samples were collected from wells from neighbouring properties for analysis. On July 22, 1988, a report was provided to the Kingston District office that two additional wells in the vicinity of the residence of George Crowe on Rednersville Road in Ameliasburgh Township had been found to be contaminated with organic compounds.

[11] On August 16, 1988, the results from analysis for chlorinated organic compounds of samples taken at Mr. Crowe’s residence were forwarded to him. The analysis indicated the presence of trichloroethylene in the drinking water at the Crowe residence. As a result, the MOE recommended the use of bottled water for drinking. On August 19, 1988, a magnetometer survey was carried out on the Crowe property at Lot 70, Concession 1 in the Township of Ameliasburgh. The magnetometer survey indicated the possibility of buried drums on the property.

[12] On August 30, 1988, G. W. Barnes of Goodyear Canada Inc. provided a copy of a contract dated November 17, 1974, for the removal and purchase of empty barrels and waste material from the Goodyear Plant. The contract involved Burprom and Goodyear Canada, George Crowe, signing on behalf of the company.

[13] By letter addressed to George Crowe dated September 7, 1988, from J. W. Tooley, Supervisor Abatement Section, Belleville office of the MOE, Mr. Crowe was advised that the drums buried on his property were the source of contamination of private water wells in the vicinity of his residence. Mr. Crowe was further advised that another magnetometer survey would be conducted and that the drums and contents of the drums must be removed in an environmentally acceptable manner.

[14] The drums of waste were buried on the Blackbird owned land and also land where the Crowe family resided and from which both Blackbird and Burprom Construction operated.

[15] On September 7, 1988, an Information Report was forwarded to the Operations Division of the MOE. The Report stated that the buried drums on the Crowe property were the likely source of the water well contamination. The Report further indicated that the Control Order was being prepared under Section 17 of the Environment Protection Act to require Mr. Crowe to initiate a detailed hydrogeological investigation into the contaminant plume, supply drinking water to the affected residents and undertake removal and property disposal of the drums and their contents. A backhoe was used to excavate portions of the Crowe property. The excavation revealed the presence of buried drums containing various liquids. Water samples were taken at the location of the various excavations which revealed the presence of trichloroethylene, benzene, toluene and other substances.

[16] On or about January 13, 1989, a Notice was served upon Blackbird, George Crowe, Nathan Crowe and Joan Crowe as persons having management or control of an undertaking of property, of an intention to issue an Order regarding the removal of buried drums and liquid waste on the property owned by Blackbird.

[17] On March 27, 1989, an Order was issued pursuant to Section 17 of the Environmental Protection Act sent to Blackbird, George Crowe, Nathan Crowe and Joan Crowe to provide potable water supplies to residents on Rednersville Road whose private wells were in jeopardy of contamination by chlorinated organic compounds, to retain the services of a qualified consultant to identify and evaluate alternatives for a long term supply of potable drinking water to the residents and to carry out magnetometer surveys of all subject properties, to prepare a site remediation plan for work including excavation and removal of drums and contents and conduct a hydrogeological study of the ground water contamination and provide financial assurances in the amount of $100,000.00 for the performance of the actions required under the Order. The Environmental Appeal Board in a decision received August 3, 1990 set aside the Order to the extent that it included Nathan and Joan Crowe as parties.

[18] On November 6, 1989, an Order under Section 143 of the Environment Protection Act was served on Blackbird and George Crowe. The Order provided that, in default of carrying out the requirements of Section 17 of the Environment Protection Act, the MOE would fulfill such requirements at the expense of Blackbird and Crowe.

[19] On December 7, 1989, an Order was made under Section 29 of the Environment Protection Act to exempt the removal and disposal of waste materials from the vicinity of the property of Blackbird in order to carry out such work as quickly as possible and eliminate adverse public health and safety impacts associated with the contamination of private wells by chlorinated organics.

[20] By letter of December 22, 1989, from MOE, Crowe and Blackbird were given notice that MOE would be proceeding with the removal of buried drums on the Blackbird property. The MOE further advised that as Crowe and Blackbird were in default of the Director’s Order, an environmental contractor would be retained to remove the drums with the intent to commence work in early January, 1990.

[21] On January 1, 1990, both Nathan Crowe and Joan Crowe resign as Directors of Blackbird. Nathan Crowe also resigned as President of Blackbird.

[22] The within action was commenced by Notice of Action dated July 7, 1994. The Statement of Claim was issued on August 4, 1994. The Defendants, Blackbird, Crowe, Nathan Crowe and Joan Crowe and Burprom Construction Inc. delivered a Statement of Defence and Counterclaim on July 31, 2001. A Reply and Defence to the Counterclaim was delivered on April 2, 2001.

[23] The Plaintiff was represented in the action by Anita L. Lyon of Crown Law Office – Civil, Ministry of the Attorney General. Ms. Lyon brought a motion returnable November 7, 2001, seeking various interlocutory relief including striking out various paragraphs of the Statement of Defence of the Crowe Defendants and for particulars of various allegations in that pleading. A settlement meeting was proposed to take place on November 6, 2001. Ms. Lyon agreed to a meeting and agreed to adjourn the motion to permit the parties to discuss resolution.

[24] On consent of all parties, the venue of this action was transferred to Belleville by Order dated December 4, 2001, from Picton. A settlement meeting occurred but no progress was made. Counsel for the Defendant, Goodyear, demanded the Plaintiff provide a ‘damages’ brief. The Plaintiff states that, to the extent that “receipts have been located” the cleanup and remediation costs as a result of the leakage from the buried barrels totalled $684,092.03. Matters subsequently were delayed when counsel for Goodyear was appointed to the Bench and no longer represented Goodyear. Counsel for the AG Plaintiff then made efforts to determine who represented Goodyear. On about March 31, 2011, David Hamer of McCarthy, Tetrault confirmed he was now defending the matter on behalf of Goodyear. Some attempts apparently were made by Plaintiff’s counsel to schedule a settlement meeting with counsel for Goodyear. Ms. Lyon retired from the Ministry of the Attorney General during 2012 and as of October 16, 2012, current counsel Mr. Ronald Carr, was assigned carriage of the file.

[25] The action was set down for trial on January 13, 2013. Examinations for discovery have not been held and no affidavit of documents has been exchanged.

[26] The Defendant, George Crowe, died on August 17, 2014. The action was continued by this Court against the Estate of George Crowe on November 12, 2014. It is now agreed that Joan Crowe has Alzheimer’s and is not competent to instruct counsel.

[27] Crown counsel admits that from 2002 to 2010 there has been an inordinate delay and that the Crown has no excuse. The total delay is from initiation of the Statement of Claim on August 4, 1994, to argument of this motion April 1, 2015.

The Limitation Period:

[28] The Defendants in this motion: Blackbird, Burprom, the Estate of George Crowe, Nathan and Joan Crowe (known as the Crowe Defendants) argue that the Plaintiff’s claim is statute barred. It is common ground that in this case a six year limitation period applied. The Crowe Defendants argue that the Plaintiffs discovered their cause of action on May 8, 1988, when they received a complaint about the quality of water well in the area of the Defendants’ property. The Defendants argue that the Plaintiff knew the nature of the complaint and the landowner, meaning that they had knowledge of who the Defendant would be. Accordingly, the Defendants argue the Claim was initiated outside the six year limitation.

[29] I reject the Defendants’ argument that the claim was commenced outside the limitation period. I agree with the Plaintiff, MOE could not have known of the barrels buried on the Crowe property (owned by Blackbird Holding) until August 19, 1988, at the earliest. This is the date a magnetometer survey was carried out at the property. In fact, knowledge of the cause of action does not likely arise until September 7, 1988, when a report was delivered identifying the drums on Blackbird’s property as the likely source of the contamination. I agree with the Plaintiff that, in either event, the action was started July 7, 1994, within the six year limitation period.

The Plaintiff’s Motion for Summary Judgment:

[30] The Plaintiff seeks an Order for Summary Judgment against two of the Defendants, namely, Blackbird Holding Ltd. and the Estate of George Crowe. The leading case on Motion for Summary Judgment is the Supreme Court of Canada case of Hryniak v. Mauldin [2014] S.C.C. 7. In Hryniak the Court held as follows:

(a) Summary Judgment Motions must be granted whenever there is no genuine issue requiring a trial (Rule 20.04(2)(a); and

(b) there will be no genuine issue requiring a trial when the trial judge is able to reach a fair and just determination on the merits on a Motion for Summary Judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact (2) allows the judge to apply the law to the facts and (3) is a proportionate, more expeditious (my emphasis) and less expensive means to achieve a just result (Hryniak at para 47 and 49)

The Position of the Plaintiff:

[31] The Plaintiff argues that the evidence at the Provincial Offences trial involving the Defendant, George Crowe and Blackbird Holding and the subsequent conviction and findings of the appellate judge, Justice Anderson of the Ontario Court of Justice, are admissible in the civil proceeding and are sufficient to allow this court to grant Summary Judgment. The Plaintiff argues these findings are dispositive of the allegations as against George Crowe and Blackbird.

[32] The Plaintiff argues that the public interest strongly favours the avoidance of “duplicative litigation, potential inconsistent results, undue costs and inconclusive proceedings”. (B.C.A.G. v. Malik [2011] S.C.C. 18)

[33] It is urged by the Plaintiff that Blackbird and Crowe should be stopped from re-litigating the conviction under the Water Resources Act by the doctrine of ‘issue estoppel’. Issue estoppel precludes the re-litigation of issues previously decided in court in another proceeding if three pre-conditions are met:

(a) the parties to both proceedings must be the same, or their privies;

(b) the issue must be the same as the one decided in the prior decision; and

(c) the prior judicial decision must have been final. (Toronto v. Canadian Union of Public Employees Local 79 (CUPE) 2003 SCC 63, 2003 S.C.C. 63 at para 23)

[34] In the earlier POA matter the Crown charged George Crowe and Blackbird with offences under both the Ontario Water Resources Act and Environmental Protection Act. George Crowe defended the matter with counsel and testified on his own behalf and on behalf of the Corporate Defendant, Blackbird. The proceeding was quasi criminal in nature and resulted in a jail term for Mr. George Crowe and a fine. The Plaintiff in the case at bar argues that a) the parties are the same b) the issues before the Court in the prior proceeding were identical to the matters at issue in this case. c) the Defendants, Crowe and Blackbird, in the POA trial were afforded the opportunity of full answer in defence d) the POA matter was serious and the defendants would have put forward their best defence. The Plaintiff argues that it would be an abuse of process to now allow the Corporate Defendant, Blackbird or the George Crowe’s Estate to re-litigate the past convictions.

[35] The Plaintiff’s position is that there is no issue in the case at bar requiring a trial in regard to the Defendants George Crow and Blackbird Holding. The charges are essentially the same, there is no new evidence, the Defendants fully defended the matter in POA matter and, in fact, appealed the conviction and the conviction was upheld.

[36] The Plaintiff argues there is no genuine issue requiring a trial upon the issue of negligence by Blackbird and George Crowe and the damages are documented to the extent there is also no genuine issue. In the alternative the Plaintiff argues there should be a finding of liability in negligence against George Crowe and Blackbird and a ‘mini-trial’ upon the damages issue.

Position of the Defendants:

[37] The Defendants agree that pursuant to Section 22.1 of the Ontario Evidence Act, the prior criminal convictions are admissible evidence in subsequent civil proceedings. However, this provision does not specify the evidentiary effect of the conviction where the convicted party seeks to challenge the facts underlying the criminal offence in the subsequent civil proceeding. Second, the Crowe Defendants argue that very little evidence was provided at the original POA trial upon the issue of “clean up” of the barrels of waste and that the prior evidence was not a complete evidentiary record of the entire cleanup process. The Defendants allege that much of the documentary evidence of the cleanup is missing. To date, in the case at bar there has been no exchange of Affidavit of Documents. It appears that there is no cleanup report from Sevenson’s Environmental Ltd., the company that undertook extensive work to excavate and remove the drums of waste.

[38] The Defendants argue that, while some of the issues of liability between Crowe and Blackbird are the same between the POA trial and the civil trial, there are differences. For example, the conviction contrary to Section 16(1) of the Ontario Water Resources Act against the Corporate Defendant and George Crowe was a finding of “causing or permitting the discharge of any material into water that may impair the quality of the water”. In the trial, the Justice of the Peace was required only to find that the material “may” have impaired the quality of water. In the Statement of Claim, the Plaintiff alleges the Defendants “permitted, or aided, or caused the improper and improvident disposal of chlorinated organic compounds, pollutants and contaminants in a manner that put the natural environment and public safety at risk” and that such improper and improvident disposal resulted in damages. Accordingly, in the civil trial, it will be necessary for the trier of fact to determine exactly the material that was discharged and to determine if the discharge actually caused a safety risk to the natural environment and the public.

Analysis:

[39] The Motion for Summary Judgment, if granted, would not resolve the litigation between the Plaintiff and the remaining Defendants, namely, Joan Crowe, Nathan Crowe and Burprom Construction Inc. These three defendants are entitled to a trial on all issues. They were not parties to the earlier POA prosecution.

[40] In Hryniak the Supreme Court indicated that a judge hearing a Motion for Summary Judgment must inter alia determine if it is in the “interests of justice” to use its new powers to weigh evidence, draw inferences and evaluate credibility: at paragraph 60:

“The interests of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interests of the justice to use the new fact-finding powers to grant Summary Judgment against the single defendant. Such partial Summary Judgment may run the risk of duplicate proceedings or inconsistent findings of fact and therefore the use of the power may not be in the interests of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.”

[41] In all of the circumstances in the case at bar I do not find that the Motion for Summary Judgment against the Estate of George Crowe and Blackbird Holding is a proportionate process to determine either the issues of liability, apportionment or damages. I do not believe a just result can be achieved at this stage. As the court stated in Hryniak at paragraph 50, “a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” The Statement of Claim was initiated against the Defendants in 1994. No Motion for Summary Judgment was brought at that time or, in fact, until 2015. Use of the Motion for Summary Judgment after such a lengthy period of time can hardly be described as “proportionate, timely and cost effective”. The fact of the matter is that the Plaintiff had ample opportunity to proceed with the civil claim at the conclusion of the Provincial Offences Appeal. Aside from initiating the claim, the Plaintiff did little. The civil claim has advanced very little in over two decades. There have been no Examinations for Discovery, no exchange of Affidavit of Documents. The Plaintiff did prepare damages brief after the fact. The Plaintiff proffers absolutely no explanation for the two decade delay in proceeding with this matter. It is ironic for the Plaintiff to argue abuse of process, given their conduct.

[42] Some of the issues involving George Crowe and Blackbird in the civil trial are the same as the Provincial Offences trial, some are broader. More importantly, there are other significant issues that arise in the civil trial that were not issues in the Provincial Offences trial. For example, the Provincial Offences trial did not deal with the issue of “clean up” of the barrels of waste and the damages suffered by the Plaintiff. The Plaintiff did not seek a Restitution Order at that time. Further, the Provincial Offences trial did not deal with the issue of apportionment of liability between the Crowe Defendants and Goodyear Canada. It is clear that Goodyear entered into a written Agreement with Burprom. The details of conversations that may have taken place between George Crowe and Goodyear are not now available. Mr. Crowe is deceased and apparently the Crowe Defendants do not have access to any documentation from Goodyear, which may shed light on what conversations took place between those Defendants. Martin Trembly in a sworn affidavit on behalf of Goodyear stated he made no representations to George Crowe that Goodyear planned to take responsibility for the cleanup. He further swore an affidavit that he did not initiate contact with Mr. Crowe. Thereafter, Mr. Trembly filed a affidavit admitting that he did in fact have a conversation with Mr. Crowe, explaining “I simply forgot about it through the passage of over 26 years”. Trembly maintains he never discussed taking responsibility for the cleanup. The passage of time and the death of George Crowe make it impossible for the Crowe Defendants to adequately address the issues of apportionment of liability and the reasonableness of the damage claim and work done on cleanup. Joan Crowe is now incapacitated and unable to assist in her legal defence. Nathan Crowe is admitted by all parties to have had a limited role in the two Corporate Defendants, at the material time.

[43] I note the claim for damages in the Plaintiff’s Motion for Summary Judgment is in the amount of $684,092.03, reduced from claim in the initial pleadings. Justice Anderson at the appeal stage noted that the cleanup costs “now exceed two hundred and fifty thousand dollars” (Anderson decision page 19). Suffice it to say there is likely an issue as to the damages sustained in the event of liability.

[44] Long ago it has been recognized that George Crowe was the operative mind of the two Corporate Defendants and that Joan and Nathan Crowe were nominal Directors. This is exemplified in the aforementioned decision of the Environment Appeal Board. The Environment Appeal Board set aside the Order made by the Director dated March 27, 1989, as it related to Nathan Crowe and Joan Crowe. At page 10 of the decision, the Board stated:

“In the present circumstances, the two corporate directors (Joan and Nathan Crowe) do not have de facto control over the source of contaminant and never has exercised such control. Therefore, it is the opinion of this Board that Joan and Nathan Crowe should not be parties to the Order.”

[45] Criminal charges were at one time commenced against Nathan Crowe and subsequently withdrawn.

[46] Given the passage of time, the death of George Crowe, the death of several key employees of the Corporate Defendant, the Crowe defendants are limited in the defence they can present not only at trial, but on this motion for Summary Judgement. The Plaintiff’s alternative argument is that there should be a ‘mini-trial’ on the damages issue. Again the long delay in this matter is such that a judge cannot come to a fair determination on the issue. The Crowe defendants at this motion or a trial depend in part on George Crowe, as he was the individual who dealt with not only Goodyear, but with the Ministry officials related to the cleanup.

[47] For the above reasons, I find that there are genuine issues requiring a trial upon all issues and in particular as to apportionment of liability and quantum of damages. Given that there would be a trial involving the remaining three defendants in any event, it is not appropriate to grant judgement against two. The significant delay in this matter is such that potentially evidence has been lost, proper documentation has not been kept, memories fade. This is not a case where the interests of justice favour granting the Motion.

[48] The Plaintiff’s Motion for Summary Judgment against Blackbird Holding and the Estate of George Crowe is therefore dismissed.

Motion for Delay:

[49] I now turn to the Crowe defendants Motion for dismissal of the Plaintiff’s claim for delay. All parties agree that the Court may dismiss actions for delay as part of its inherent jurisdiction to control its own process, which includes discretionary power to dismiss an action for delay.

Test for Delay:

[50] The test for determining whether an action should be dismissed for delay is set out by the Divisional Court in Woodheath Developments Ltd. v. Goldman 2003 46735 (ON SCDC), [2003] 66 O.R. 3d 731. The Woodheath test has frequently been adopted by the Court of Appeal. The Woodheath test provides that if the plaintiff or his or her lawyers are responsible for an “inexcusable delay” that gives rise to a substantial risk that a fair trial might not now be possible, then the matter ought to be stayed.

[51] In the case at bar, the time between the Notice of Action and the hearing of the Motion is twenty-one years, over two decades. The Crown at the commencement of this Motion agreed that there has been inordinate delay, although the Crown only conceded the delay from 2002.

[52] The issue is “how long is too long”? In Woodheath the delay was twelve years in bringing the action to trial and the Divisional Court held it was an inordinate length and inexcusable. The Crown has made no effort here to explain the delay. It must be noted that the Plaintiff in this case is a division of the Provincial Government, namely, the Ministry of the Environment. The matter is prosecuted by the Attorney General for the Province of Ontario, Civil Division. This Court takes judicial notice of the fact that the Crown has significant resources, including significant legal resources. The Crown has not attempted to explain the delay because it is self-evident that the delay is not only lengthy but indefensible. The Crown in its Motion for Summary Judgement argues that the interests of justice require that there not be duplicate proceedings and that the matter now, after two decades, be dealt with in a summary fashion. However, the Crown by its inactivity may well have induced the Defendants to believe that the Crown was not pursuing its claim for damages as a result of the matter for which George Crowe and Blackbird Holdings were convicted in Provincial Offences Court.

[53] While the Crown concedes inordinate delay and the fact that it is inexcusable from 2002 to 2010, I find that the entire period must be considered, namely, back to 1994. The Plaintiff has an obligation to move matters forward. No doubt the Crowe defendants were slow to file a defence.

Presumption of Prejudice:

[54] There is a presumption of prejudice due to the delay. The longer the delay, the more the prejudice. The Plaintiff may rebut the presumption. Where there is a presumption of prejudice, the Defendant need not lead actual evidence of prejudice and the action will be dismissed for delay, unless the Plaintiff rebuts the presumption.

[55] The onus is upon a Plaintiff to rebut the presumption by showing that documents have been preserved and that the issues in dispute do not require the recollection of witnesses or those necessary witnesses are available with detailed recollection of events. (Woodheath)

[56] There is no evidence that documents in this case have been preserved as it relates to the cleanup costs. As previously stated, no Affidavit of Documents has been exchanged. The Defendant, Nathan Crowe, queried in his Affidavit sworn February 25, 2015, whether the Plaintiff had in its possession a detailed report of the findings of the company that conducted the cleanup on behalf of the Ministry of Environment. The Plaintiff has not provided an answer.

[57] There has been no preservation of witness testimony, as there had been no Examinations for Discovery. The evidence of George Crowe was preserved in the Provincial Offences trial. However, the Provincial Offences trial did not deal with the issue of damages, nor the issue of apportionment with Goodyear. George Crowe is now deceased. Joan Crowe is institutionalized and unable to assist in the defence. It appears the barrels in question were buried sometime in the mid 1970’s.

[58] There has been no evidence provided by the Plaintiff that witnesses are available and have a detailed recollection of events. In his Affidavit sworn February 25, 2015, the Defendant Nathan Crowe named four individual formerly in the employment of MOE whose evidence according to the Defendant would be important to the proceeding. The Plaintiff has provided no evidence as to the whereabouts of other individuals or witnesses or the recollection of events, with the exception of Penny Stewart.

Analysis of Prejudice to the Defendant:

[59] I conclude that two decades delay in this matter is almost overwhelming prejudice and overwhelmingly the presumption is that prejudice exists. For reasons stated above, I find that the presumed prejudice has not been rebutted by the Plaintiff. The Motion for Summary Judgment has been dismissed and, in any event, only applies to two of the Defendants. The Plaintiffs argue that Nathan and Joan Crowe do not have a defence to the merits of the liability claim because they were Directors of the Corporate Defendants at the material time and they had a duty pursuant to Section 194 of the Environment Protection Act. The Plaintiffs argue that the onus is on those individual Directors to show that they exercised their duty to prevent the Corporation from causing the discharge. The Plaintiff argues that all of the elements to find a breach of Section 194 of the Environment Protection Act are admitted. I reject this argument. Upon the evidence provided in this motion it is arguable that Nathan and Joan Crowe were intentionally kept in the dark about the activities of the company. It is therefore at least arguable at trial that these two individuals have no liability, notwithstanding they were directors of the companies at the material time. The passage of time renders the right to raise a defence meaningless. This court first hand experienced how memories fade and affect the ability of witnesses to accurately recall events. Mr. Trembly initially swore an affidavit that he had no contact with George Crowe, then when confronted with an audio of conversation admitted that he must have had the conversation, but now has forgotten.

Actual Prejudice:

[60] In the event that I am wrong and it is found that the Plaintiff rebutted the presumption, I go onto consider whether the current Defendants have suffered actual prejudice due to the delay.

[61] It is admitted by all parties that George Crowe was the operating mind of both Burprom Construction Inc. and Blackbird Holding Ltd. If any of the Defendants would have knowledge of the damages sustained by MOE and the work done to remediate, it would be George Crowe. His evidence is no longer available. His evidence on this point has not been recorded under oath or otherwise. All Defendants suffer prejudice as a result of the death of George Crowe as it relates to the issue of damages and apportionment of liability between the Corporate Defendants and Goodyear Canada. It seems that Goodyear Canada retained the services of Burprom to dispose of their waste. It is unclear what discussions may have taken place between George Crowe and Goodyear as to the extent of the liability or indemnity. It is further unclear what explanation Goodyear gave to George Crowe as to the nature of the substance. Did Crowe know what was in the barrels? It is unclear on the evidence what, if any, knowledge Nathan and Joan Crowe had of the barrels, their content and the fact that they were buried on the property owned by Blackbird. No doubt at trial there would be an issue as to what they did or did not know and whether their conduct was reasonable.

[62] There is further actual prejudice by the fact that Joan Crowe is now incapacitated due to her health.

[63] For the foregoing reasons, I find that there has been inordinate delay by the Plaintiff and there is no excuse for the same. As a result of the delay there is a strong presumption of prejudice faced by the Crowe Defendants. The Plaintiff has not satisfied its obligation to overcome the presumption. Finally, I conclude that, in addition to the presumption of prejudice, the Crowe Defendants have suffered actual prejudice by delay in the death of George Crowe and the incapacity of Joan Crowe.

[64] Courts must encourage resolution of claims on their merit. The Court should carefully consider whether claims be struck or be dismissed for delay. I am reluctant to dismiss a claim. However, in these extraordinary circumstances, given the very long delay, the total lack of explanation, the prejudice and given the fact that the Plaintiff had sufficient resources at all times to pursue the claim; this is an appropriate case for a dismissal. Enough is enough; in the interests of justice this matter must end now. For the foregoing reasons, the Crowe defendants’ Motion for Dismissal for Delay is granted.

[65] If the parties cannot agree upon the issue of costs, they shall exchange written submissions limited to five pages, together with a Bill of Costs and file with the Court office in Belleville. The defendants shall serve and file their material within thirty days and the Plaintiff shall have right of reply within twenty-one days.

The Honourable Mr. Justice J. M. Johnston

Released: October 1, 2015

COURT FILE NO.: CV-02-0009-00
DATE: 2015/OCT/1

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Attorney General for Ontario
Plaintiff (Defendant by Counterclaim)

– and –

Blackbird Holding Ltd., Joan Crowe, Nathan Crowe, Goodyear Canada Inc., Burprom Construction Inc. and Estate of George Crowe
Defendants (Plaintiffs by Counterclaim)

RULING ON MOTION FOR SUMMARY JUDGMENT/MOTION FOR DISMISSAL

The Honourable Mr. Justice J. M. Johnston

Released: October 1, 2015