Court File and Parties

Court File No.: CV-12-445312 Date: 2022-02-25 Superior Court of Justice - Ontario

Re: ERECTOWELD COMPANY LIMITED, Plaintiff And: PROCOR LIMITED, OVERHEAD DOOR COMPANY OF CANADA LIMITED, OVERHEAD DOOR CORPORATION, 1428772 ONTARIO LIMITED, 363993 ONTARIO LIMITED, 2120358 ONTARIO LIMITED, STORA STEELS CANADA LIMITED, STORA ENSO OYJ, 1592079 ONTARIO INC., SHARP MACHINE COMPANY, BELLE INTERIORS INC., SILICON TECHNOLOGY CANADA INC., PAUL SKEELS, 1084753 ONTARIO INC., DOREEN HYDE, SYLVIE BOURGEAULT, SHEDDEN INVESTMENTS INC., and PAUL NIGHTINGALE, Defendants

Before: FL Myers J

Counsel: Gemma Healy-Murphy, for Erectoweld Company Limited H. Michael Rosenberg and Patrick Healy, for the Procor Limited Tamara Farber, for the 1428772 Ontario Limited, 363993 Ontario Limited, and 1592079 Ontario Inc. Brendan Y.B. Wong, for Overheard Door Company of Canada Limited and Overhead Door Corporation Sylvie Bourgeault for herself and Doreen Hyde

Heard: February 16 and 17, 2022

Endorsement

The Question

[1] Who dumped 14 kg on perchloroethylene (“PCE”) on to the plaintiff’s land?

a. Was it the plaintiff itself?

b. Was it the plaintiff’s predecessor in title Overhead Door?

c. Was it former tenants of Overhead Door who are known to have brought drums with unknown contents onto the property?

d. Was it the neighbours to the north at 2076 Speers Road or 2080 Speers Road?

e. Was it Procor Limited whose property is across Speers Road to the north again of the neighbours at 2076 Speers Road and 2080 Speers Road?

The Plaintiff’s Theory

[2] The plaintiff’s long time environmental consultant hypothesizes that the PCE now on or under the plaintiff’s land was spilled by Procor on its land in the 1950s or 1960s. For a small volume of PCE, weighing just 14 kg, to travel from Procor’s property, through the intermediate neighbours, to the plaintiff’s property, the consultant postulates that Procor had to have had a massive spill of at least 57,000 litres of PCE on its own land. The spill would have to have travelled over Procor’s land, through a ditch westward along the southern edge of Procor’s property and then turned south into a culvert under Speers Road onto the intermediate neighbour’s land at 2076 Speers Road. The spill then would have to have remained at 2076 Speers Road as a big, smelly pond or swamp for long enough for a sufficient amount of PCE to be adsorbed into the soil and then migrate south to the plaintiff’s property.

[3] And then, remnants of the big, smelly pond or swamp and the pathway of the flood from Procor’s land to 2076 Speers Road would have to have been removed.

[4] The plaintiff’s consultant does not render an opinion that a spill on Procor’s land caused the pollution on the plaintiff’s land. He was not asked to give an opinion of the likely or probable cause of the contamination. Rather, he says that his goal was to provide a reasonable explanation to show that Procor could be the cause of the pollution.

[5] The plaintiff’s consultant is not an independent expert. He does not hide that his goal is to advocate for the outcome that Procor is liable. He altered his hypothesis each time Procor’s expert showed that the consultant’s prior assumptions did not or could not have occurred. Procor’s counsel asks me to assume that the consultant’s evidence is admissible expert opinion for the purposes of this motion.

The plaintiff postulates that at least two railcars loaded with PCE were brought onto Procor’s land and were dumped onto the land as part of Procor’s railcar cleaning business. There is next to no evidence before me to prove the assumption that any railcar loaded with PCE ever arrived at Procor’s business; that there ever was a massive spill; that a resulting overland flood travelled along Procor’s southern ditch; that the flooding PCE liquid travelled through a culvert under Speers Road; that the flood pooled to form a smelly pond or swamp on 2076 Speers Road where it remained for years undetected; or that the pond or swamp of PCE and all remnants of the PCE flood were removed later.

[6] Moreover, the owners of 2076 Speers Road have tendered expert evidence suggesting that groundwater flows northbound from the plaintiff’s land towards 2076 Speers Road. That is, they say that rather than a massive flood of PCE coming from Procor heading southbound towards the plaintiff’s property through 2076 Speers Road, a spill of a small amount of PCE on the plaintiff’s land may have migrated northbound onto 2076 Speers Road.

The Motion and Outcome

[7] Procor seeks summary judgment dismissing the plaintiff’s claim against it alone.

[8] For the reasons that follow the motion must be dismissed.

The Assessment of the Litigation as a Whole Precludes Partial Summary Judgment

[9] This is a motion for partial summary judgment. Although the full case against Procor would be resolved if it succeeded on the motion, the claims against the other neighbours would remain.

[10] Considerations of the litigation as a whole preclude partial summary judgment in all but rare circumstances. In Butera v. Chown, Cairns LLP, 2017 ONCA 783, the Court of Appeal found that countervailing factors preclude a finding that partial summary judgment is in the interests of justice. The court noted that motions for partial summary judgment can delay the main trial and cause extra appeals. They can be very expensive (as this one was). They add to the judicial workload without necessarily resolving anything with finality. And, with only a partial record, there is a risk that on the full evidence at trial, there could be inconsistent verdicts.

[11] Here, I do not know why the plaintiff has not set the action down for trial. While counsel submits that there may be further production issues, their inaction for the past two years does not suggest that this is a realistic priority for the plaintiff. This motion has not delayed the plaintiff’s efforts to get to trial.

[12] The motion is expensive and is an addition to the judicial workload no doubt. If it succeeded in avoiding a big portion of the trial however, the interests of justice in efficient, affordable, and proportionate justice could be met.

[13] But that is where the analysis proposed by Procor falters. The plaintiff claims that PCE contamination on or under its land came from 2080 Speers Road or 2076 Speers Road, or from its predecessor in title Overhead Door, or its tenants. If Procor is removed, there will still be a trial and the issue will still be “where did the PCE come from”.

[14] In Butera, the Court of Appeal held:

A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner.

[15] Procor submits that the issue of whether any PCE travelled from its land onto 2076 Speers Road is a discrete issue of fact that can be readily bifurcated from the facts in issue as between the other parties. The issues at trial among the plaintiff and the other defendants all deal with how PCE got onto the plaintiff’s property. Procor argues that the issue of how the PCE got onto the defendants’ land before it allegedly migrated to the plaintiff’s land will not matter at the trial.

[16] That submission ignores three things. First, there are numerous issues as between the owners of 2076 Speers Road and the plaintiff. The plaintiff will need to prove that the groundwater runs from 2076 Speers Road southbound towards its land. Unless precluded from doing so, it may continue to want to show that the pond or swamp that came from Procor’s flood led to migration of PCE to the plaintiff’s land. That is, while the cause of the PCE getting to 2076 Speers Road may no longer be in issue, the underlying facts of the plaintiff’s case still turn on the very same case that it relies on against Procor.

[17] There was no suggestion before me by any defendant that, if Procor succeeds, the plaintiff could fairly be subject to a form of issue preclusion (e.g. issue estoppel or abuse of process) as against them. Rather, in their submissions, they took steps to protect themselves in the event that the plaintiff did continue advancing its theory at trial.

[18] The proof of the pudding is in the position taken by the owners of 2076 Speers Road on this motion. While they ostensibly take no position on the motion, they were sufficiently concerned about the risk of findings of fact being made that could prejudice their position at trial that they delivered an expert report about the direction of the flow of groundwater as between the plaintiff’s land and 2076 Speers Road.

[19] Procor did not stop its evidence at the boundary line of its property with that of 2076 Speers Road. Procor took strenuous issue with the thought that it might have caused a pond or swamp of PCE to travel to and remain at 2076 Speers Road for sufficient time to cause the contamination of the plaintiff’s property.

[20] The fact that the owners of 2076 Speers Road wanted to remain neutral but found themselves compelled both to submit evidence to protect their position and to make submissions asking me to refrain from making findings that could affect their clients’ position at the trial shows that the issues are not discrete.

[21] Counsel for Overhead Door also took no position on th emotion but made submissions asking me to refrain from making certain findings that it fears could prejudice its position at the trial. While I could likely accommodate both parties’ requests, if, as discussed below, the issue is the possibility of overlap or duplication of evidence, these submissions establish that the possibility exists.

[22] The second problem arises from the defendants’ cross-claims against each other. Not surprisingly, each of the other defendants has a cross-claim against Procor. Each will argue at trial that if it is found liable, Procor ought to be found liable for contribution or indemnity for causing their land to be polluted in the way that was found to pollute the plaintiff’s land.

[23] If the cross-claims remain outstanding after summary judgment is granted in favour of Procor, then nothing at all is accomplished to expedite or decrease the cost of the trial. The exact same trial would remain on all the same issues as the other defendants seek to prove that Procor is liable. In fact, the cross-claims would invite a trial verdict that is directly inconsistent with the judgment that I am asked to grant on this motion.

[24] Recognizing that the cross-claims stand in the way of partial summary judgment, each of the other defendants has agreed to discontinue or dismiss its cross-claims without costs if Procor succeeds on this motion. But the cross-claims will continue if the motion is dismissed. That is, the other defendants are not joining together with Procor to say that the plaintiff has no claim against it. Rather, they have made tactical settlements with Procor to get out of its way if it can win. Otherwise they remain adverse in interest on the facts and law. It was suggested that the fear of contribution towards Procor’s costs at trial may have been a significant part of the negotiations. Be that as it may, the strategic concessions do not support a finding that Procor’s issue is sufficiently discrete to be readily bifurcated from the issues remaining for trial so as to make the motion for partial summary judgment one that can be heard in the interests of justice as assessed from the perspective of the litigation as a whole.

[25] The third problem is that from a practical perspective, I just cannot see how a trial that considers the source of the pollution coming onto the plaintiff’s land can or will likely be stopped at the boundary between 2076 Speers Road and Procor’s property. The plaintiff says a swamp of PCE on 2076 Speers Road caused the pollution for which it sues. If the swamp can only have come from a flood at Procor and I am to find that there was no flood that created a swamp, how can the issue of 2076 Speers Road’s liability not implicitly include a question of whether my judgment must have been incorrect?

[26] There are competing factors however. This action is too old and there is obviously something holding the plaintiff back from setting it down for trial, investing further resources in document review that has been available to it for two years, and retaining a credentialed, independent expert. It may well be that if the motion was brought in a more comprehensive fashion, issues of partial summary judgment would not arise. But, unless the claim is limited to plaintiff’s own land against the defendant Overhead Door and it agrees not to crossclaim against anyone alleging off-site origination of the contaminants, the same issues will arise.

[27] Moreover, if this entire claim was brought on for summary judgment, it may well represent a nasty “trial in a box” that could then trigger concerns about allocation of judicial resources. [1]

[28] One might well argue that the benefits of eliminating Procor from the case outweigh the risks of inconsistent verdicts and duplication. Is the plaintiff really likely to go to trial with just the evidence of a consultant providing hypotheses specifically designed to ensnare Procor? Is the plaintiff really likely to go to trial with little evidence to support the assumptions relied upon by the consultant to say that his hypotheses are “reasonable”? Practically speaking, how likely is the plaintiff to go to trial against Procor when the environmental regulators at the Ontario Ministry of the Environment have not accepted its theory of the case?

[29] The more likely outcome is that with Procor out, the action will settle or be greatly narrowed. The flood theory will likely be jettisoned and the issues that remain will likely settle or, at least, result in a much shorter, simpler, and less costly trial.

[30] However, it is not open to me to decide this issue by balancing the risks of prejudice against the possible benefits of a partial resolution by summary judgment. In Mason v. Perras Mongenais, 2018 ONCA 978, at paras. 40 and 41, the Court of Appeal held that I had been wrong to find that there is no bright line that requires “every case that might possibly have a risk of duplication or inconsistent verdicts” to go to trial. The Court of Appeal held that Butera imposes a bright line test that requires the dismissal of every motion for partial summary judgment that might possibly involve a risk of duplication of evidence or inconsistent verdicts at trial.

[31] The motion judge therefore has no discretion to weigh the likely risks or benefits to determine if partial summary judgment is in the interests of justice in this case.

[32] It does not matter whether I rule the consultant’s evidence inadmissible and decide the motion of the record, or if I assume the evidence is admissible expert evidence and decide using the expanded fact-finding powers. As long as the plaintiff can advance its flood theory against the remaining defendants the risk of duplication of evidence and inconsistent verdicts at trial remains. Considerations of the litigation as a whole then preclude a conclusion that it is in the interests of justice to resolve summarily the issue of Procor’s liability to the plaintiff in this action. For the same reasons trying to resolve Procor’s liability in a focused form of mini-trial is equally inapt.

[33] The motion is therefore dismissed.

Costs

[34] My preliminary inclination is to leave the costs of the motion for the trial judge or the judge who finally resolves the issue of Procor’s liability. The trial judge might well find that the motion should not have been opposed or that there are other good reasons why costs should not follow the event.

[35] If the parties cannot agree on costs, they may advise my Judicial Assistant that they request a case conference at which I will resolve the issue on oral submissions and the parties’ respective Costs Outlines.

FL Myers J Date: February 25, 2022

[1] See: RNC Corp. v. Johnstone, 2020 ONSC 7751, at paras. [3] to [19]