Court File and Parties

COURT FILE NO.: C-6537/17CP DATE: 2022-04-26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michel St. Louis et al, Plaintiffs AND: Canadian National Railway Company et al, Defendants

BEFORE: Justice R. D. Gordon

COUNSEL: Geoffrey Adair, Counsel for the Plaintiffs (Responding Party) Marina E. Sampson and Raphael T. Eghan, Counsel for the Defendant Canadian National Railway Company (Moving Party)

HEARD: April 12, 2022, via Zoom

Endorsement

Overview

[1] This class action arises out of a train derailment that took place in 2015. Notwithstanding that the action was started in 2017 there is no certification motion pending nor any current order setting out a timetable for the advancement of the action. Canadian National Railway Company (“CN”) seeks the dismissal of this proceeding for delay pursuant to s. 29.1(1) of the Class Proceeding Act, 1992 (the “Act”).

Background Facts

[2] On March 7, 2015, a CN freight train derailed near Gogama, Ontario. Several tanker cars transporting petroleum crude ruptured, spilling their contents onto the banks of the Makami River allegedly causing contamination of the shoreline, river and other water bodies used by the plaintiffs.

[3] The plaintiffs issued their statement of claim on March 5, 2017 and served it shortly thereafter. CN delivered a notice of intent to defend, and the parties agreed on a waiver of defence.

[4] Counsel for the plaintiffs advised counsel for CN in or about mid 2017 that the plaintiffs wished to have independent environmental testing completed to ascertain the success of CN’s ongoing remediation efforts. It was understood that if remediation efforts had been successful the plaintiffs were unlikely to proceed further with the action.

[5] I was appointed to case manage the action and convened the first case conference on October 13, 2017. The pertinent terms of the endorsement arising from that conference are as follows: “The Plaintiffs will be commissioning an independent assessment of the remaining contamination of the affected lands. Given the time of year, it is unlikely this will get started until the spring of 2018. Counsel agree that the case management conference should be adjourned at this time to a date not later than the end of June, 2018, to allow the Plaintiffs an opportunity to begin their assessment and to report on its status… Accordingly, this case management conference is adjourned to a date in the spring of 2018 (but not later than June 30), to be set by my trial coordinator in consultation with counsel.”

[6] The second case management conference was convened on June 19, 2018. The endorsement arising from that conference indicates that the plaintiffs’ independent assessment of the remaining contamination would not be complete until the end of September and on agreement of all parties the conference would be continued once the assessment is complete and counsel for the plaintiffs is able to obtain instructions. The trial coordinator was instructed to contact counsel with a view to scheduling a further case management conference, preferably between September 11 and 30, 2018.

[7] The third case management conference was held on October 9, 2018. The endorsement from that conference indicates that the plaintiffs’ environmental testing had been completed but the assessment report not yet provided. The conference was adjourned to a date to be set by the trial coordinator in January of 2019 to allow for the environment assessment report to be prepared and for counsel to discuss possible resolution options with the defendants.

[8] The fourth case management conference was first scheduled for January 31, 2019, and then rescheduled by the court for February 12.

[9] By letter dated February 8, 2019, counsel for the plaintiffs wrote counsel for CN to advise that the testing done did not include the riverbank or riverbed in the area down-river from the spill, and that until that work was completed, he would not be able to obtain instructions from his clients to proceed with the resolution that had been discussed. He proposed adjourning the case management conference to allow for that further testing and to allow counsel to work out an agreement they could both recommend to their clients. He suggested an adjournment to late June. Counsel for CN agreed. By letter to the court dated February 11 counsel for the plaintiff indicated there was agreement to adjourn subject to my views and suggested an adjournment to late June or early July 2019. I agreed to the request and had my judicial assistant email counsel advising that the conference would be rescheduled for June or July of 2019 and that they would be contacted to set a new date.

[10] For reasons that are not entirely clear, no one went about the task of scheduling a further case management conference. Court personnel did not contact the parties as had been anticipated; and none of the parties contacted the court to inquire about dates.

[11] In the meantime, the government of Ontario passed the Smarter and Stronger Justice Act, 2020 which contained amendments to the Act. In particular, it introduced section 29.1, entitled “Mandatory Dismissal for Delay”, which reads as follows:

29.1 (1) The court shall, on motion, dismiss for delay a proceeding commenced under section 1 unless, by the first anniversary of the day on which the proceeding was commenced,

(a) the representative plaintiff has filed a final and complete motion record in the motion for certification;

(b) the parties have agreed in writing to a timetable for service of the representative plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding, and have filed the timetable with the court;

(c) the court has established a timetable for service of the representative plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding; or

(d) any other steps, occurrences or circumstances specified by the regulations have taken place.

[12] By virtue of the transition provisions introduced into the Act, the dismissal provision in section 29.1 would apply to proceedings that had already be commenced unless there was compliance with subsection (a), (b), (c) or (d) by October 1, 2021.

[13] When October 1, 2021 arrived, CN had not heard from the plaintiffs in almost 30 months. It had not been served with a certification motion and was of the view there was no agreement to a timetable, nor any court ordered timetable for the certification motion or for the completion of any step required to advance the proceeding. It served its motion to dismiss 5 days later.

[14] Although the plaintiffs may not have been in contact with CN, they were not sitting entirely still. They were making regular efforts to have further environmental studies conducted as had been recommended in their first report. Their efforts were hampered by a number of factors. The firm initially engaged to do the further testing subsequently declined, citing liability issues. Other firms contacted held similar liability issues, were in a position of conflict, or had a reluctance to travel because of the pandemic. It was not until March of 2020 that a firm was located that was willing to do the work. Unfortunately, due to provincial health guidelines advising against travel and the resurgence of COVID-19 in certain areas, that firm was unable to complete the work and in September of 2021 advised that it was no longer able to perform the required testing. Another firm was subsequently engaged to review the material and conduct the testing but upon review of the material declined to proceed.

[15] The narrow issue before me is whether by October 1, 2021, the court had established a timetable for completion of one or more steps required to advance the proceeding.

[16] Rule 1.03(1) of the Rules of Civil Procedure, which expressly applies to class proceedings, defines “timetable” as a schedule for the completion of one or more steps required to advance the proceeding (including delivery of affidavits of documents, examinations under oath, where available, or motions), established by order of the court or by written agreement of the parties that is not contrary to an order.

Analysis

[17] These new provisions of the Act have received judicial consideration on only one previous occasion. In Bourque v. Insight Productions et al., 2022 ONSC 174, Justice Belobaba wrote that “If s. 29.1 of the amended CPA is to achieve its intended purpose – to help advance class action proceedings that otherwise tend to move at a glacial speed – then it is to everyone’s advantage (both putative class members and defendants) that the mandatory dismissal provision be interpreted and applied as written.” I do not disagree. If none of the requirements set out in s. 29.1 were satisfied by the one-year anniversary of the amendment, the court retains no residual discretion to order anything but dismissal. Indeed, the plaintiffs did not argue otherwise.

[18] The real issue in this case, as outlined above, is whether any of the requirements of s. 29.1 were met or, more specifically, whether the court had, by October 1, 2021, established a timetable for one or more steps required to advance the proceeding.

[19] At the initial case conference, it was ordered that a second case management conference be convened before June 30, 2018, to allow the plaintiffs to begin their environmental assessment and report to the court on its status. Does this constitute a timetable? A timetable requires: (1) a schedule; (2) that the schedule provide for the completion of one or more steps; and (3) that such steps be required to advance the proceeding.

[20] The case management conference endorsement of October 17, 2017, called for another case management conference by June 30, 2018, by which time the plaintiffs were to report on the status of their environmental assessment. It provided for a further event by a specified date. That is a schedule by almost any definition.

[21] That schedule provided for two steps in the litigation: First, it provided for the plaintiffs’ commencement of their environmental assessment. Second, it provided for a second case management conference. Clearly, the schedule provided for “one or more steps”.

[22] Were those steps required to advance the proceeding? On a very practical basis, the plaintiffs’ environmental assessment was and is required for them to advance the proceeding. Without it there can be no practical prospect of success on the certification motion.

[23] In my view, in the circumstance of this case, the next case management conference was also a step required to advance the proceeding. The parties were of a common understanding that the results of the independent environmental testing could well result in the end of the litigation, and all thought it appropriate to have those results before proceeding further. As a result, no further timetable was set or even considered for the advancement of the plaintiffs’ certification motion. The next case management conference was necessary to determine whether or how the action would be proceeding.

[24] It is to be noted that s. 29.1 (1)(c) does not require the actual advancement of the action or that the parties proceed with scheduled steps. It only requires the court to have established a timetable for a single step required to advance the proceeding. If such a timetable is made but not met, there are other potential remedies such as case management orders, orders for non-compliance under r. 3.04 and dismissal for delay that may be pursued.

Conclusion

[25] On the particular facts of this case, the court did establish a timetable for completion of one or more steps required to advance the proceeding. It did so long before October 1, 2021. Although CN may have some other remedies available to it, dismissal of the action pursuant to s. 29.1 of the Act is not one of them.

[26] CN’s motion to dismiss is refused. The plaintiffs are to have their costs in the amount of $9,662.00 all inclusive.

The Honourable Mr. Justice R.D. Gordon Date: April 26, 2022