Ontario Superior Court of Justice
Court File No.: CV-16-69664
Date: 2025/04/25
Parties
Between:
Gordon Egan, Kevin Kunka, Scott Petrie, and Paul Crozier, Plaintiffs
and
National Research Council of Canada and Carleton University, Defendants
Plaintiffs' Counsel: Michael S. Hebert and Nathan Adams
Defendant NRC's Counsel: Stephanie Dion, Genevieve Tremblay-Tardif, and Nathan Joyal
Heard: February 26, 2025 (Ottawa)
Motion to Amend the Certification Order to Add Punitive Damages as a Common Issue
Justice: Robert Smith
Overview
[1] The Plaintiffs have brought a motion to amend the Certification Order dated July 7, 2021 to permit them to proceed with a claim for punitive damages pursuant to paragraph 43 of the Reasons for Certification.
[2] The claim for punitive damages was not certified as a common issue because at the date of the certification motion, there was no “basis in fact” of any evidence that the Defendant, National Research Council of Canada (“NRC”) knew that PFAS chemicals had migrated onto the property of the class members.
[3] Paragraph [43] of the Reasons for Certification reads as follows:
“if evidence is discovered that NRC knew and failed to advise the proposed class members of possible contamination of their drinking water by toxic PFAS compounds for approximately 2 years, then it is not plain and obvious that they would not be successful on such a claim. The claim is premature at this time and if such evidence is discovered, the pleadings that could be amended.”
[4] The Plaintiffs’ statement of claim initially sought punitive damages on the basis that NRC knew that the contamination had migrated onto the class members' properties before receiving the engineering report in 2015.
[5] The Plaintiffs now seek to add a claim for punitive damages on the basis that NRC knew or ought to have known about the possible contamination of the class members’ drinking water, based on the totality of the expert reports received by NRC by 2013. The Plaintiffs have now discovered that NRC was made aware by the Ministry of the Environment and by further correspondence on November 20, 2018, that:
- Monitoring of residential drinking wells was inadequate to determine the extent of the off-site PFAS contamination under the class members’ land, and
- That the NRC needed to drill groundwater monitoring wells off-site on the Plaintiffs’ lands in order to properly assess the ground water migration and determine the extent of off-site PFAS contamination under the class members’ properties.
[6] NRC produced approximately 18,000 documents before examinations for discovery took place. The report from Aqua-Terra Environmental Ltd., an environmental consulting firm, dated February 20, 2004, reported that wastewater containing firefighting foam should be properly collected and disposed of by a licensed disposal contractor or treated and tested prior to discharge. This report further advised that the typography was such that the NRC lands sloped northeast towards the class members’ lands and towards the Mississippi River.
[7] In June 2009, another environmental consultant, namely Golder Associates (“Golder”), produced a separate environmental site assessment. It opined and reported to NRC that the groundwater on the site flowed towards the northeast and that the wastewater being discharged into the natural environment by the NRC was an area of potential environmental concern.
[8] In July 2009, Golder stated in an additional report that the stormwater and wastewater were discharged from NRC lands into the natural environment and that the inferred groundwater flow appeared to be towards the direction of the Mississippi River, which passes through the class members' lands. Because the risk rating by Golder was noted as highest risk and highest severity, Golder recommended that NRC examine mitigating options.
[9] In March 2013, Stantec found PFSA in the groundwater, surface water, and soil at the NRC site. Groundwater flow was inferred to be towards the small creek in the north portion of the NRC lands. This creek crosses the roadway and leads to the laneway of one of the class member’s property. The small creek eventually drains across the class members’ lands and into the Mississippi River.
[10] ISED’s report stated that NRC had not followed the precautionary principle in handling the PFAS contamination issue, and that if NRC had followed the precautionary principle, it would have informed the residents at the same time as when bottled water was introduced for NRC employees and visitors in February 2014, even though all the science on PFAS was not necessarily known and the groundwater flow may not yet have been firmly established. ISED determined that this would have allowed the class members to make decisions regarding their drinking water almost 2 years earlier than when they were advised of the PFAS contamination issue in December 2015.
[11] The ISED report also stated that the NRC staff was first made aware in March 2013 by Stantec that PFAS on the NRC site appeared to have migrated into the groundwater and surface water system. NRC only advised residents of potential PFAS contamination of their drinking water nearly three years later in December 2015.
Analysis
[12] The Defendant, NRC, submits that the Plaintiffs are seeking to amend their statement of claim to claim for punitive damages based on evidence that the NRC knew or ought to have known in 2013 that PFAS compounds may have migrated into the groundwater of the Plaintiffs’ lands and failed to give notice to the homeowners for approximately 2.5 years.
[13] The NRC submits that this proposed amendment should not be granted because the Plaintiffs have not brought a motion to amend their pleadings and it has not had an opportunity to respond to a motion to amend the pleadings. This motion is brought by the Plaintiffs based on paragraph [43] of the certification order.
[14] The Plaintiffs have not discovered evidence that NRC actually knew that PFAS compounds had migrated onto their lands but rather discovered evidence that NRC “ought to have known that PFAS compounds had migrated onto the Plaintiff’s lands and could have contaminated their drinking water”. NRC failed to conduct any testing of the groundwater of the Plaintiffs’ lands in 2013 to determine if such migration had in fact occurred or to have taken any precautionary steps to mitigate to any harm from drinking water contaminated by PFAS compounds.
[15] I agree with the NRC’s submission that the Plaintiffs should first bring a motion to amend their pleadings to clarify exactly the basis of their claim for punitive damages and to allow NRC an opportunity to respond and to argue that such an amendment should not be granted.
[16] If the motion to amend the pleadings is granted then I would likely permit an amendment to the Certification Order as requested as there would be some basis in fact that the NRC knew or ought to have known of possible contamination of the Plaintiff’s drinking water by 2013, as the pleadings are deemed to be proven for purposes of the certification motion.
Disposition
[17] The motion to add a claim for punitive damages as a common issue is adjourned to the same date as the Plaintiffs’ motion to amend the pleadings is heard.
[18] The issue of costs is deferred until after the motion is heard to amend the pleadings has been decided.
Date: April 25, 2025
Robert Smith
Released: April 25, 2025