Court File and Parties

COURT FILE NO.: 11-1099 DATE: 2016 May 05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

VALCO INSTRUMENTS CANADA CORPORATION Plaintiff/Respondent on Motion – and – IMPERIAL OIL LTD. Defendant/Applicant on Motion

COUNSEL: K. Muzynski, for the Plaintiff/Respondent on Motion L. Finney, for the Defendant/Applicant on Motion

HEARD: April 27, 2016 at Brockville

BEFORE: Tranmer J.

DECISION ON MOTION FOR SUMMARY JUDGMENT

BACKGROUND

[1] By Statement of Claim issued November 4, 2011, the plaintiff sued the defendant for damages in negligence and nuisance caused by the migration of petroleum hydrocarbons (PHCs) from the defendant's property onto the plaintiff's property.

[2] The Statement of Claim was amended in January of 2016. The Amended Statement of Claim is not contained within the record before me, however, counsel advise that the amendment simply and briefly pleaded the doctrine of continuing nuisance.

THE ISSUES

[3] The defendant submits that the action should be dismissed because it was commenced outside of the two year limitation period prescribed by the Limitations Act.

[4] The defendant also submits that the evidence provided by its expert witness should be found by this court on this motion to prevail over the evidence provided by the plaintiff's expert witness and that therefore, this court can find on this motion that the groundwater does not flow from the defendant's property to the plaintiff’s property and that the defendant’s property is not the source of the PHC found on the plaintiff's property. The defendant submits therefore, that on this motion, this court can and should find that the plaintiff's claim of continuing nuisance is without merit and that such a claim is not preserved for the two year period prior to the commencement of the action, namely from November 4, 2009.

THE EXPERTS

[5] Each party filed a report and affidavits from an expert witness qualified to give opinion evidence in regard to site assessment and remediation, contaminant hydrogeology and assessing potential adverse effects at and beyond the boundaries of properties. The parties agreed that their experts, David McClellan, for the defendant, and Kevin Shipley, for the plaintiff, and the other side’s expert, were so qualified.

BACKGROUND FACTS

[6] The following facts are not in dispute.

[7] The respective properties do not share a common boundary. However, the defendant’s property is upgrade from the plaintiff's property. The plaintiff’s property shares a common boundary to its northwest with the Malglaz property.

[8] A gasoline service station was previously located on the defendant's property. It was decommissioned in 1991. The underground storage tanks were removed. In 1997, some building foundation was removed. The evidence is that this work complied with Ministry of the Environment standards.

[9] The plaintiff purchased its property in May of 2001. Previously, it had been the site of vehicle maintenance facilities for a coal business. There are newspaper reports that a fire and explosion occurred on the property in January of 1978, during which a fuel truck and propane truck were reportedly consumed by fire. The Brockville newspaper described operations at the property as a fuel yard site. Photographs show a burnt out fuel truck sitting in front of a fire damaged building at the northwest corner of the property.

[10] Historical records suggest that the Malglaz property was used for auto repair operations, including the storage and dispensing of gasoline from at least 1931 to 1951/52.

[11] This historical land use information is reported by Mr. McClellan in his report dated August 18, 2015 to the defendant.

[12] Stanley Stearns was the representative of the plaintiff, who was involved in acquiring this property. He had significant experience acquiring commercial properties and prior to the acquisition of the plaintiff's property, he had purchased a gas station containing petroleum hydrocarbon contamination that required remediation. He was aware that PHCs can migrate outward from gas station underground storage tanks to down gradient locations.

[13] Prior to purchasing the property, the plaintiff had possession of a Phase 1 Environmental Site Assessment prepared by Golder on November 1, 1999. That document read in part, “Potential issues of concern which relate to subsurface impacts on soil and/or groundwater… are as follows: The historical land use both on-site as well as off-site indicates the potential for soil and/or groundwater impacts on the site. There are inherent environmental risks to properties located in a commercial/industrial area of this nature. However, no evidence was observed to indicate that the site has been adversely affected by activities on site or off-site in the surrounding area. In order to address this issue, an intrusive Phase 2 environmental site assessment would be required.”

[14] The assessment identified, “the general area around the site has been noted to have various structures, including residential and industrial type warehouse buildings. The latter would potentially have environmental related issues of concern that would be associated with historical land-use. Other land uses that could potentially have environmental related issues of concern are the fuel retail outlets directly north of the site as observed in the 1974 and 1987 photos.” The assessment also identified that the property had been previously owned by a coal company and that that would be “the only obvious issues of potential environmental concern”, so far as historical ownership of the property was concerned. The assessment specifically identified a gasoline service station with “A total of five underground storage tanks are shown on the plan associated with the garage is fronting on King Street, and a total of two underground storage tanks are shown on the plan associated with the garage is to the west… The plans indicate that the site as well as the overall area around the site was industrial in nature and as such, the potential for on-site as well as off-site potential issues of environmental concern exist.”

[15] The plaintiff did not do a Phase 2 environmental site assessment. Furthermore, it did not obtain or have a copy of the Phase 2 assessment which had been done by Golder in November 2000, which found PHCs contamination on the plaintiff’s property. This assessment was only obtained by the parties in the course of this litigation.

[16] Gord McFarlane was the plaintiff's Canadian general manager, and was responsible for conducting the due diligence on the property and making a recommendation to Mr. Stearns with respect to its acquisition. In a memo dated February 27, 2001 to Mr. Stearns, Mr. McFarlane reported on the “Environmental Issue”. He wrote, “This issue, I believe, has been exaggerated by “local hysteria”. There was a coal company operating in and across our location in the 1930s. The local lore has it as being “contaminated”. There is no evidence to reveal any problems due to this. The property to the west and to the north is an old vacant gasoline service station. I believe the issue is underground storage tanks that were on that property. There have never been tanks on this property. There is no evidence as to this being an issue but by nature of the business it could be suspect. The property is owned by Exxon and has been for sale for some time. Even if there is contamination, there is nothing to prevent us from pursuing our plans. In future years, if we were to sell the property and a prospective buyer needed financing, it may be required to do a Phase 2 study then. From the checking that I have done, I do not believe that we have an issue here. I would suggest that we worry about more important problems. I will proceed with satisfying the conditions in completing the sale”.

[17] There is no further evidence of inquiry or investigation of environmental issues by the plaintiff before it purchased the property.

[18] When the plaintiff bought the property in 2001, it planted a tree. The tree did not grow and when it was removed in 2006, Ms. Comerford, the Canadian office manager for the plaintiff noticed the fuel smell that was “quite overpowering actually. It was quite distinct. There was nothing faint about it.” Mr. McFarlane said that the smell was so powerful that whatever was in the hole could have been lit on fire. As a result, the plaintiff hired a lawyer, David Hain.

[19] By e-mail dated October 5, 2006, Mr. Hain wrote to an environmental consultant concerning “discovery of possible contaminated property”. He reported that when the tree was dug out of the ground, the client found a very obvious smell of a petroleum product in the hole. The smell was so powerful that what ever was in the hole could have sustained a fire. There was no such smell 5 years ago. He further reported that, “A nearby property uphill and, within 60 m is a vacant former automobile service station owned by Imperial Oil. My client is drawn to the obvious conclusion that the source of the pollution is this former gas station. Admittedly, my client’s property was, much longer ago, a coal yard. I told client that appropriate soil tests could determine the source of the pollution. What should my client do? Do you have experience to suggest which lawyer would be the right one to quarterback this cleanup and claim.”

[20] By letter dated October 16, 2006, Mr. Hain reported to Mr. McFarlane confirming that he had put him in touch with the environmental consultant. He had heard nothing further from either. He enclosed his account.

[21] There is no evidence as to what, if anything, else was done with respect to this concern at that time by the plaintiff.

[22] In 2009, the plaintiff entered into an agreement of purchase and sale to sell the property. The purchaser had a Phase 2 environmental site assessment done in advance of completing his purchase. That assessment found contamination. The purchaser agreed to follow through with the purchase but at a price reduced by $200,000. The Phase 2 assessment is dated November 30, 2009, and before me, the parties agree that it is likely that the transaction was not completed at some time after that date.

THE LAW

[23] Rule 20.04(2) of the *Rules of Civil Procedure* provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[24] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7 held that the judge should first determine if there is a genuine issue requiring trial based only on the evidence before him or her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.

[25] If there appears to be a genuine issue requiring trial, the judge should then determine if the need for trial can be avoided by using the new powers provided under the rule. These powers are presumptively available. These powers are the weighing of evidence, evaluating the credibility of the deponent and drawing any reasonable inference from the evidence. Such powers may be used at the discretion of the court, provided that their use is not against the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation of the whole.

ISSUE #1: THE LIMITATIONS ACT AND DISCOVERABILITY

Position of the Applicant/Defendant

[26] The applicant submits that a reasonable person with the knowledge that the plaintiff had in 2001 from the Golder Phase 1 assessment and as disclosed in the McFarlane memo would have done a Phase 2 environmental site assessment or obtained a copy of the Golder Phase 2 assessment. Mr. Stearns advised that he was aware that PHCs can migrate outward from gas station underground storage tanks to down gradient locations. The applicant further submits that the reasonableness of this course of action was recognized at the time by Mr. McFarlane as set out in his memo to Mr. Stearns, “In future years, if we were to sell the property in a prospective buyer needed financing, it may be required to do a Phase 2 study then”. That is precisely what the prospective buyer did in 2009.

[27] It submits therefore that the plaintiff's claim was discovered in 2001, as set out in the Limitations Act, s. 5(1)(b).

[28] While the applicant relies on the opinion of Mr. McClellan that most buyers and their real estate advisors and his clients aware of the reports, such as the Golder Phase 1 would proceed to do a Phase 2 ESA or not proceed with the purchase of the property, I find that such opinion is outside the area of Mr. McClellan's expertise, although it may be a matter of his experience, and that such is a conclusion to be left to the court and upon which expert evidence is not required.

[29] The applicant submits that the limitation clock began to tick at that point in time and had expired by the time the Statement of Claim was issued some ten years later.

[30] On this point, the applicant also submits that a reasonable person in the position of the plaintiff would have sought to acquire information about the Imperial Oil property prior to purchasing and in particular from the Ministry of the Environment.

[31] In the alternative, or in addition to the foregoing, the applicant submits that the evidence of the odour, retaining a lawyer to consult with an environmental consultant and the words used by Mr. Hain in his e-mail to the environmental consultant in 2006 demonstrate that the plaintiff had discovered its claim at that time in accordance with s. 5(1)(a) of the Limitations Act.

[32] The experts disagree as to whether the odour is an indication of the existence of PHCs on the Valco property. Mr. McClellan says it is a clear indication. Mr. Shipley says that there was no clear indication of PHC contamination on the Valco property until the Phase 2 report of November 30, 2009. Mr. McClellan says that in 2006 an environmental consultant given that information would have advised his or her client to sample the soil to determine if there was indeed contamination above the guidelines.

Position of the Respondent/Plaintiff

[33] The respondent submits that it was not until the Phase 2 report obtained by its purchaser in November of 2009 that it became aware of PHC contamination on its property that likely originated from the Imperial Oil site.

[34] Its manager, Ms. Comerford, swore that the purchase in 2001 was completed on the basis that there was no specific indication of any pollution outside the norm for a commercial site and a former industrial location. It was unaware of the Golder Phase 2 report until sometime in 2009.

[35] It points out that while Mr. McClellan swore in his affidavit that the odour in 2006 is a clear indication of the existence of PHCs on the Valco property, he agreed in cross examination that a layperson cannot necessarily tell a gasoline odour from a diesel odour or a fuel oil, heating oil odour.

[36] It points out that in 2006 the plaintiff did not know whether the petroleum smell was definitively linked to the Imperial Oil property, or whether the petroleum smell meant that the plaintiff's land was contaminated, or the scope of any contamination. Furthermore, the plaintiff did not experience any monetary loss as a result of the odour in 2006.

[37] The Phase 2 report of November 30, 2009 estimated the cost of cleanup at over $200,000 possibly reaching $300,000. The respondent submits that it was the discovery of this information and its purchaser’s price reduction of $200,000 and eventually walking away from the transaction that crystallized its claim and that it was at that point that the limitation period began to run. There had been no prior visual signs of contamination on the plaintiff property.

ANALYSIS

[38] In Peixeiro v. Haberman, 1997 SCC 325, [1997] 3 S.C.R. 549, the Supreme Court of Canada stated that ignorance of or mistake as to the extent of damages does not delay time under limitation. “The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor… the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.” (para. 18).

[39] In Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567, [2011] O.J. No. 4953, this Court held that the limitation period began to run at the point in time that the plaintiff, before purchasing the property, knew that it and the adjacent property had petroleum contamination, that its prior use had been as a veterinary hospital, that its historical use had been as a gas station and that the adjacent property may have suffered petroleum contamination as a result of the use of the adjacent Bolton Oak property as a gas station. This information came from a Phase 2 assessment on both properties. The plaintiff sued the most recent previous owner but not the prior lessees of the property who were the owners of two gasoline pumps and two 1000 gallon underground storage tanks located on the property. The learned justice emphasized that the identity of these tortfeasors would have been readily available, with very little effort, by searching publicly accessible records at the Land Registry office, requiring minimal expense. The court held that any reasonable person faced with the knowledge that the plaintiff had in that case, upon discovering that his or her property was contaminated by petroleum would've made reasonably available inquiries to determine, before commencing legal action, the identity of the gas station and/or those involved in the historical use of and handling of gasoline at the gas station. He held that there was no genuine issue requiring trial on whether a reasonable person exercising due diligence would have known that it had a potential claim against the prior gas station operators at a point far sooner than examinations for discovery in the initial action.

[40] Because of the decision that I have reached on this issue, it is not necessary for me to decide whether the limitation period began to run in 2001 in accordance with s.5(1)(b) of the Limitations Act.

[41] I find that the plaintiff's claim was discovered in 2006. Mr. Hain’s e-mail of October 5, 2006 to the environmental consultant provides the evidence that satisfies the requirement set out in s. 5(1)(a). Loss or damage has occurred: it is recognized that pollution has occurred and that a lawyer is required to quarterback the cleanup and claim. The loss or damage was caused by or contributed by an act or omission of Imperial Oil: the plaintiff has reached the obvious conclusion that the source of the pollution is the former gas station which is uphill and, within 60 m of the plaintiff's property. Having regard to the nature of the loss or damage, a proceeding would be an appropriate means to seek to remedy it: the lawyer is requesting a referral to a lawyer who would be the right one to quarterback the cleanup and claim.

[42] This evidence is in addition to the evidence of what the plaintiff knew in 2001, that Mr. Stearns knew that PHC could migrate from one property to another, the information contained in the Phase 1 report and the information contained in Mr. McFarlane's memo to Mr. Stearns. With the same minimal cost and effort identified by the learned Justice in Bolton Oak, the information about historical land-use could have been obtained by the plaintiff, prior to purchasing, if in fact it was not.

[43] The difference of opinion between the experts as to whether the odour noted in 2006 was a clear indication of the presence of PHC is of little significance because in fact, as set out in Mr. Hain's e-mail, the plaintiff was “drawn to the obvious conclusion” that it indicated pollution on its property by a petroleum product from the former gas station.

[44] The plaintiff relied on the decision of this court in Hawley v. Pennington, 2012 ONSC 1666 for the proposition that the limitation did not begin to run until the failed real estate transaction in 2009. That case is distinguishable in that the court found that the loss did not occur until the shares were sold, although a potential adverse tax consequence on sale was recognized earlier. Mr. Hain’s e-mail makes it clear that in about October 2006, the plaintiff knew that its property was polluted, that the source was the defendant’s former gas station property and that it required a lawyer to quarterback the cleanup and claim. Clearly, the plaintiff recognized that it had suffered damages at that point in time. “A cause of action accrues once damage has been incurred, even if the nature or the extent of the damage is not known”. Pickering v. Trillium, 2016 ONCA 179, para. 33.

[45] For these reasons, I do not think there is any genuine issue requiring a trial on whether this action is statute barred. I find that the limitation period expired in October of 2008, 2 years after Mr. Hain's letter.

ISSUE #2: CONTINUING NUISANCE

[46] The plaintiff’s claim from November 4, 2009 can be preserved if there is a genuine issue for trial that cannot be resolved on this motion, on the question of whether there has been a migration of contaminants from the defendant’s property to the plaintiff’s property since that date, causing damage to the plaintiff.

[47] An original cause of action arises each day that the nuisance remains unabated.

Position of the Applicant/Defendant

[48] The applicant submits that this is a proper case for summary judgment dismissing the action. The applicant submits that this court can resolve the disagreement between the experts based on the written record.

[49] The applicant submits that on this motion, this court should accept the evidence of its expert over that of the plaintiff’s expert and conclude that the flow of groundwater has not caused the migration of contaminants to flow from the Imperial Oil property to the Valco property. Mr. McClellan is of the opinion, based on the historical records which he has reviewed, that the flow of the groundwater is not in the direction from the Imperial Oil property to the Valco property. Mr. Shipley is of the opinion that such is the direction of the flow of groundwater. He bases his opinion on the same historical records plus in addition, on-site testing on the Valco property in 2013, 2015 and 2016.

[50] The applicant submits that the evidence of Mr. McClellan is more thorough and of higher quality. The applicant submits that Mr. Shipley’s evidence is superficial and conclusory without substantive factual foundation.

[51] The applicant stresses that Mr. McClellan’s analysis provides a sound foundation for the 8 reasons that he states support his opinion. These include findings in 2004, 2005 and 2006 of negligible concentrations in the groundwater at the southerly boundary of the defendant’s property and negligible concentrations in 2013, 2015 and 2016 at the test hole in the northwest corner of the plaintiff’s property.

[52] The applicant submits that this is a clean band similar to that found in Bolton Oak.

Position of the Respondent/Plaintiff

[53] The respondent submits that this court cannot resolve the substantive differences in the opinions of the experts and that therefore, summary judgment should not be granted dismissing the claim.

[54] Mr. McClellan conceded in cross examination that an area of the Imperial Oil property has not been remediated.

[55] The respondent stresses that not only did Mr. Shipley have the same historical records used by Mr. McClellan, but that he in fact attended at the Valco property to do testing to support his opinion. Testing done by Mr. Shipley in December of 2015 and then again in January of 2016 demonstrated increased contamination associated with gasoline contamination over that timeframe. Mr. Shipley therefore concluded that this was evidence of a continuing flow of gasoline contaminated groundwater from the defendant’s property to the plaintiff’s property.

[56] Mr. McClellan conceded in cross examination that it is better to confirm by on-site testing than to infer the direction of the flow of groundwater. Therefore, in this testimony, he confirms that Mr. Shipley’s on-site testing is the preferred method for investigation.

[57] Furthermore, in cross examination, Mr. McClellan testified that, although he reached an opinion as to the direction of the flow of groundwater based on the historical records, “I’m not convinced that that’s an equilibrium groundwater flow direction. I’m not convinced that they (results he put on his diagram) are representative of equilibrium groundwater flow directions. … Q. So you’re not convinced that you have placed a reliable direction on this chart. Figure? A. Correct.”

[58] In addition, on cross examination, Mr. McClellan was unable to explain the increased contamination found by Mr. Shipley in his tests of January 2016.

[59] The respondent points out that Mr. Shipley was not cross-examined on his report or affidavits.

[60] The respondent submits that, unlike the present case, Bolton Oak was a case where the expert evidence was to the effect that the groundwater flowed away from the plaintiff’s property and further, that the Imperial Oil property was not the source of contamination.

[61] The respondent submits that it has presented strong evidence from Mr. Shipley on the migration of contamination from the defendant’s property to the plaintiff’s property during the period of time since November 4, 2009, two years prior to the issuing of the Statement of Claim.

[62] The respondent also points out that there is no evidence of test results from the Imperial Oil property since 2006.

ANALYSIS

[63] In Bolton Oak, this court held that “... The mere presence of contaminants in the soil or groundwater is not sufficient to found (find????) a claim for damages for continuing nuisance. Rather, there must be evidence of damage sustained within the limitation period.” (para. 52).

[64] In that case, the court found that the evidence before it was to the effect that damage occurred decades ago. The court found that there was no evidence of additional or continuing damage within the limitation. In fact, the defence expert found that there was a wide band between the properties that was contaminant free. The defence expert also was of the opinion that the groundwater flowed away from the contaminated property. The court found that this latter opinion strongly suggested that there could not be ongoing or continuous contamination on the subject property originating with the contaminated property. The court also found that the plaintiff's expert effectively agreed with the defence opinion concerning the apparent direction of groundwater flow. At its highest, the plaintiff expert evidence was that there was insufficient data to accurately establish the direction of groundwater flow, but that expert provided no evidence of any additional investigation or that new data contradicted the defence opinion. The plaintiff's expert was alive to the limitation issue, but provided no evidence to support any allegation of ongoing contamination of either property occurring during the limitation.

[65] On this issue, Crombie v. McColl-Frontenac, 2015 ONSC 6560 presents a fact situation similar to that in Bolton Oak. The court found “there is a paucity of evidence from the plaintiff regarding ongoing damage or nuisance… None of the environmental reports that have been generated speak to the issue of ongoing damage.” Paras. 42 and 44.

[66] Those cases have a different evidentiary background as compared to the case before me. In the present case, Mr. Shipley points out that the Phase 2 environmental assessment dated November 30, 2009 determined the existence of contaminants on the plaintiff’s property. He determined that “groundwater contaminated with hydrocarbons continued to flow from the Imperial Oil property – where it likely originated - onto the Valco property as recently as 2013 when XCG completed its testing.” (Affidavit sworn January 12, 2016, para. 19). From further on-site testing which he conducted in December of 2015 and in January of 2016, he concluded that “the January 2016 results provide evidence of a continuing flow of gasoline contaminated groundwater from the Imperial Oil property onto the Valco property.” (Affidavit sworn January 26, 2016, para. 8).

[67] The answers given by Mr. McClellan on his cross examination to which I have referred above leave his opinions which are contrary to those of Mr. Shipley open to challenge at trial.

[68] Mr. Shipley was not cross-examined on this motion for summary judgment. Failure to do so impacts against the defendant's submission that I should prefer Mr. McClellan’s evidence over that of Mr. Shipley. Mazza v. Ornge, 2015 ONSC 7785.

[69] This court's decision in Deavitt v. Greenly, 2014 ONSC 5069 supports the decision that I have reached in the present case. There is an analogous factual situation in that case to the present case.

[70] I conclude that there is a genuine issue for trial in regard to whether, and if so to what extent, there has been continuing and ongoing migration of contaminating petroleum hydrocarbons from the defendant’s property to the plaintiff’s property since November 4, 2009, and the extent of the damages, if any, suffered by the plaintiff as a result.

[71] It is my opinion that the need for trial cannot be avoided by using the new powers provided under rule 20.04(2.1) of the *Rules of Civil Procedure*. Expert evidence assists the court to understand complex, technical issues. Determining complex issues by way of a summary judgment deprives the court of the opportunity to ask questions of experts who have fielded contradictory reports. Agro’s Foods v. Economical, 2016 ONSC 1169. In this case, both Mr. McClellan and Mr. Shipley agree that the flow of groundwater is in a southeast direction. They disagree as to whether that means the groundwater flows from the defendant's property to the plaintiff’s property. The interests of justice require that such powers as weighing the evidence, evaluating the credibility of the witness and drawing reasonable inferences from the evidence must be exercised at trial. Doing so at this stage, on the record before me, cannot assure a fair and just result.

[72] Therefore, I direct that this action proceed to trial expeditiously on the issues that I have identified in para. 70 above.

[73] With respect to the matters listed under rule 20.05(2) of the *Rules of Civil Procedure*, the parties advised that they are able to cooperate in the preparation of an agreed statement of facts and a joint documents brief for trial. On the motion before me, the defendant filed a compendium of evidence which was of assistance to the court. The parties also advised that they expect that they will be able to cooperate within a timeframe to bring the trial on for hearing expeditiously.

[74] If difficulties are encountered with respect to such matters, I may be spoken to in that regard.

[75] With respect to the suggestion by the Supreme Court of Canada in Hryniak that I should now seize myself as the trial judge, I am prepared to do so if it is convenient to the parties that the trial be heard in Kingston. It would appear that doing so would save on travel expense for the lawyers and expert witnesses. The parties may make submissions on this issue before me if they are of a contrary opinion.

COSTS

[76] If the parties are unable to agree on the costs of this motion which resulted in some success for each party, then the Defendant/Applicant on motion may make written submissions limited to 3 pages plus a Costs Outline within 10 days and the Plaintiff/Respondent on motion may respond similarly within 10 days thereafter.

Honourable Mr. Justice Gary W. Tranmer Released: May 05, 2016

COURT FILE NO.: 11-1099 DATE: 2016 May 05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: VALCO INSTRUMENTS CANADA CORPORATION Plaintiff/Respondent on Motion – and – IMPERIAL OIL LTD. Defendant/Applicant on Motion DECISION ON MOTION FOR SUMMARY JUDGMENT Tranmer, J. Released: May 05, 2016