Reasons for Judgment

Court File No.: CV-14-512687
Date: 2025-01-06
Ontario Superior Court of Justice
Between:
Canadian National Railway Company
Plaintiff

and

The Corporation of the City of Kitchener, Public Utilities Commission of Kitchener, and Hogg Fuel & Supply Limited
Defendants

Heard: July 18, 2024
Before: Mark L. Koehnen

Overview

[1] The defendant, Hogg Fuel & Supply Limited (“Hogg”), moves for summary judgment to dismiss this action on the grounds of res judicata and abuse of process.

[2] The motion is based on the fact that the plaintiff, Canadian National Railway Company (“CN”), commenced an action in 1989 which was dismissed for delay in 2014 and which Hogg submits is identical to the present action.

[3] For the reasons set out below, I grant summary judgment and dismiss that part of the claim that relates to coal tar contamination. The claim for coal tar contamination amounts to an abuse of process because it was dismissed in 2014 by reason of CN’s 25-year delay in prosecuting the action and failure to preserve evidence. The combination of those two factors made it impossible to try those claims fairly. If those claims were impossible to try fairly in the 1989 action, they are equally impossible to try fairly in this action.

[4] I dismiss the motion for summary judgment insofar as it relates to claims for benzene contamination. The claim for benzene contamination did not crystallize until 2014. It did not form part of the argument or the reasons for dismissing the 1989 action. When the 1989 action was dismissed in 2014, the limitation on the benzene claims had not even expired. There was, at that time, no delay in prosecuting the claim for benzene contamination as a result of which it could not form part of the delay that caused the court to dismiss the 1989 action. In addition, the concerns about a fair trial that prompted the court to dismiss the 1989 action do not apply to the claim for benzene contamination.

I. Background Facts

[5] In 1989, CN commenced an action against the Public Utilities Commission of Kitchener, its successor, the Corporation of the City of Kitchener, and against Hogg.

[6] During the course of the 1989 action it was alleged that:

• (i) In 1986 the Ministry of the Environment advised CN that it had found coal tar on CN’s property immediately adjacent to the Hogg property which is municipally known as 5 Hill St. in Kitchener, Ontario.
• (ii) Between the 1920s and the 1950s the Public Utilities Commission and its successor, the City of Kitchener, had deposited coal tar on the CN property and on what is now known as the Hogg property.
• (iii) Hogg began conducting operations on its property in approximately 1952. Its operations have evolved over time. By 1989 and since then, Hogg has operated a gas station, bulk lubricant storage facility for lubricants, heating oil and fuels and a private commercial vehicle service garage on the property.
• (iv) Hogg had allowed and was continuing to allow coal tar and “and possibly other wastes” to migrate from its property onto the CN property.
• (v) CN claimed damages for loss it “had incurred or as may be incurred” and compensation for damage that the migration “has caused, is continuing to cause, and is likely to cause…”

[7] In the 1989 action, CN claimed damages for nuisance, negligence, strict liability, and statutory liability pursuant to the Environmental Protection Act. [1]

[8] The 1989 action expressly referred to both existing contamination and continuing migration of contaminants. [2]

[9] In 2014, 25 years after CN commenced the 1989 Action, Justice Myers dismissed that action for delay. In doing so he held that:

• (i) The 1989 Action could not be fairly adjudicated on its merits without risking substantial prejudice to the defendants. [3]
• (ii) CN took steps in the 1989 action only when it was absolutely required to do so and that CN’s failure to advance its claim over the preceding 25 years caused “inordinate and inexcusable delay” which was “among the longest in any reported case” at the time. [4]
• (iii) CN did nothing to preserve the evidence of any of the witnesses it relied on [5] even though the coal tar contamination likely occurred between the 1920s and 1950s and those witnesses would begin dying rapidly, if they had not died already.
• (iv) “Without the evidence of eyewitnesses being preserved, the trial cannot fairly assess the key factual issue in the litigation.” [6]
• (v) The “litigation includes questions of who dumped coal tar wastes on CN’s land, or did the coal tar migrate there and, if so, from whose lands and when?” [7]
• (vi) All that exists now is a very fragmented set of a few witness interviews quoted by consultants. [8]
• (vii) “Due to CN’s delays and its failure to preserve evidence to rebut the presumption or inference of prejudice, the parties have been denied the ability to put before the trial judge the evidence needed to paint a fair and complete picture. A trial in these circumstances would not be a fair and just resolution of the dispute.” [9]

[10] CN appealed the decision to the Court of Appeal for Ontario which upheld the dismissal. [10] CN sought leave to appeal to the Supreme Court of Canada which was refused. [11]

[11] In 2014, before the Ontario Court of Appeal had released its reasons upholding the dismissal, CN commenced the 2014 action.

[12] The 2014 action names the same defendants as were named in the 1989 action.

[13] Like the 1989 action, the 2014 action claims damages from Hogg and other defendants for nuisance, negligence, strict liability, and statutory liability pursuant to the Environmental Protection Act. [12]

[14] Like the 1989 action, the 2014 action claims damages for coal tar contamination and for the migration of coal tar from the Hogg property to the CN property.

[15] Like the 1989 action, the 2014 action pleads that CN has incurred and continues to incur damages as a result of past, present and continued migration of contaminants onto the CN property.

[16] The 2014 action adds a new claim specifically for the migration of petroleum hydrocarbon contaminants, more particularly, benzene, from the Hogg property to the CN property.

[17] In 2016, CN discontinued the 2014 Action as against the City of Kitchener and the Public Utilities Commission as a result of which Hogg is the only remaining defendant.

II. The Test for Summary Judgment

[18] The test for summary judgment is well-known and not in dispute. The rules for summary judgment should be interpreted broadly, in a way that favours proportionality and the affordable, timely and fair adjudication of claims. [13] An issue should be resolved by summary judgment if the motion affords a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious, and less expensive way to achieve a just result. [14]

[19] I am satisfied that the summary judgment motion as framed is a proportionate, more expeditious, and less expensive way of resolving the dispute than going to trial.

[20] The issues of res judicata and abuse of process are legal issues that do not require a determination on the merits of CN’s allegations concerning contamination. To explore those allegations at trial will require a great deal of time and significant financial resources. Devoting those resources to a trial would be wasteful if the issue can in fact be determined based on principles of res judicata or abuse of process.

III. Principles of Res Judicata

[21] The concept of res judicata prevents the re-litigation of issues that have already been decided. [15] It is based on two central policy concerns: finality and fairness. More specifically, that it is in the public interest that there be an end to litigation at some point and that it would be unfair to require defendants to fight the same action twice. [16] Res judicata has two branches: cause of action estoppel and issue estoppel. Cause of action estoppel prohibits a plaintiff from bringing an action against another party if the same cause of action has been determined or could have been determined in an earlier proceeding between the same parties. Issue estoppel is narrower and prohibits the re-litigation of an issue that was or could have been decided in an earlier proceeding, even where the cause of action is different in the two proceedings. [17]

[22] The principal dispute between the parties in this regard is whether res judicata requires a final determination on the merits in the earlier proceeding.

[23] Hogg relies on the decision of the British Columbia Supreme Court in Direct Horizontal Drilling Inc. v. North American Construction Management Ltd. [18] which held that res judicata prevents a second claim after an action has been dismissed for delay. On my reading of the law, Direct Horizontal is an outlier.

[24] To begin with, it does not appear that the contrary decision of the British Columbia Court of Appeal in Azeri v. Esmati-Seifabad Estate, [19] was drawn to the court’s attention in Direct Horizontal. In addition, a number of Ontario cases have held that a dismissal on the merits is required for principles of res judicata to apply. [20] In distilling those authorities, Holmstead and Watson write:

The second part of the requirement is that the decision has been on the merits. The effect of this requirement is to deny preclusive effect to adjudications which result in action #1 being dismissed for procedural reasons not going to the merits of the claim asserted, e.g., dismissal for want of prosecution, for lack of jurisdiction, etc. […] [21]

[25] In my view, the preferable approach is to limit cause of action estoppel and issue estoppel to cases where there has been a determination on the merits. The concept of res judicata literally refers to a matter that has been adjudicated. Justice Myers did not adjudicate upon any of the causes of action or issues that CN raised in the 1989 action. Rather, what Justice Myers decided was that the 1989 action could not be tried fairly given the lapse of time.

[26] I appreciate that if Justice Myers thought the 1989 action could not be tried fairly in 2014 because of delay, his finding in that regard would have even more force in 2024. In my view, the preferable approach to that issue is not to distort the principles of issue estoppel or cause of action estoppel beyond their intended use but to make use of other, more flexible tools like abuse of process.

IV. Abuse of Process

[27] The Supreme Court of Canada recognized the doctrine of abuse of process in Toronto (City) v. Canadian Union of Public Employees, Local 79. [22] Like cause of action estoppel and issue estoppel, its purpose is to ensure that no one should be “twice vexed by the same cause,” to “uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality in the administration of justice.” [23] Abuse of process is, however, a flexible doctrine which is not encumbered by the technical requirements of cause of action estoppel or issue estoppel. [24] It relies on judges’ “inherent and residual discretion to prevent an abuse of the court’s process.” [25]

[28] It has been said that abuse of process focuses less on the interests of the parties and more on the integrity of the administration of justice [26] and the court’s inherent power to prevent the misuse of its procedure in a way that would bring the administration of justice into disrepute. [27]

[29] Allowing the 2014 claim to proceed, at least with respect to the coal tar allegations, would, in my view, bring the administration of justice into disrepute. It would involve allowing a claim to proceed that Justice Myers has already found cannot be tried fairly because of CN’s conduct. The Court of Appeal upheld that finding and the Supreme Court of Canada dismissed a motion for leave to appeal. If, under those circumstances, a litigant could simply start a new action for the same claim, it would render Justice Myers’ decision meaningless. This would invite litigants to relitigate matters that courts have already determined, thereby imposing even greater burdens on an already overburdened justice system.

[30] CN submits that dismissing any part of the action as an abuse of process is inappropriate for the following reasons:

• (i) Commencing a second action after a dismissal for delay does not constitute an abuse of process.
• (ii) CN has a continuing cause of action which removes a second action from the concept of abuse of process.
• (iii) The 2014 action is based on new law and new facts.
• (iv) The 2014 action is subject to applicable limitation periods.
• (v) The benzene claim does not amount to an abuse of process.

For the reasons set out below, I do not accept the first four propositions set out above but do accept the submission that the benzene claim does not amount to an abuse of process.

i. Dismissal for Delay and Abuse of Process

[31] CN submits that the 2014 action should not be dismissed as an abuse of process because Rule 24.05(1) provides that the dismissal of an action for delay is not a defence to a subsequent action unless the order dismissing the action provides otherwise. Since Justice Myers’ decision and order did not provide that the dismissal constituted a defence to a subsequent action, it would be inappropriate to hold that a subsequent action is an abuse of process.

[32] I am unable to agree with that submission. Beginning with the decision of the Court of Appeal for Ontario in Mintz v. Wallwin, [28] a number of Ontario courts have held that a second action can constitute an abuse of process after a first action was dismissed for delay even where the court dismissing the first action did not indicate that the dismissal was a defence to a subsequent action. [29] For example, in 2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd., the Court found:

With respect to the issue of whether res judicata applies in the circumstances, I am mindful that Rule 24.05 provides that the dismissal of an action for delay is not a defence to a subsequent action unless the order dismissing the action provides otherwise. However, commencing a second action, identical to one that had already been dismissed for delay, is an abuse of process …This can be the case if a subsequent action is commenced after the dismissal of the first, as well as when an identical claim is made in a second action that was commenced prior to the dismissal of the first action. [30] [emphasis added]

[33] By way of further example, in Sauve v. Canada, [31] the Federal Court dismissed the plaintiff’s action for delay. The Federal Court of Appeal upheld the dismissal. The plaintiff then brought a new action which was virtually identical to the original action. The Federal Court dismissed the second action as an abuse of process stating:

… I agree with counsel for the respondent that, notwithstanding the plaintiff's claim has not been adjudicated on the merits, his refiling of his statement of claim after its dismissal under the case management rules constitutes an abuse of process. In my view, he had every reasonable opportunity to advance his case to an adjudication on its merits, was given an opportunity to do so by order of Justice Dubé of this Court, but violated that order and so the dismissal of his first action. [32]

[34] Although Justice Myers did not specifically address in his reasons or in his order that the dismissal would amount to a defence to a subsequent action, his reasons suggest that he intended to preclude a subsequent action. In paragraph 78 for example he stated:

Counsel for Hogg Fuel rightly concedes that if CN's action is dismissed, its claims over must likewise be dismissed. Hogg Fuels will now be denied its opportunity to seek contribution and indemnity from CN and the city if the Ministry of the Environment makes cleanup order(s) against it. But it too is the author of its misfortune. Especially if it ever intended to advance its cross-claim and counterclaim for more than contribution and indemnity, then it was plaintiff in those claims and did as little as or less than CN in respect of advancing those parts of the litigation.

[35] In other words, not only did Myers J intend that the plaintiff CN was prevented from bringing a subsequent claim, he intended that the defendant Hogg would be prevented from bringing a claim even if it were prompted by an event that had not yet occurred, like a government cleanup order.

[36] CN argues that dismissing CN’s claim as an abuse of process would allow Hogg to continue polluting the CN property without consequence. To the extent that is correct, CN is the author of its own misfortune by having failed to advance the 1989 claim after 25 years.

ii. Continuing Cause of Action

[37] CN submits as a broad proposition, that in any case of continuing injury, a continuing tort exists that gives rise to a new cause of action on each day that the tort continues. Thus argues CN, it has a new cause of action for at least the additional migration of coal tar that has occurred since Myers J dismissed the 1989 action. CN relies on two older authorities for this proposition. Both are distinguishable.

[38] The first is the Supreme Court of Canada’s decision in Roberts v. City of Portage La Prairie. [33] That case did not involve principles of cause of action estoppel, issue estoppel or abuse of process but involved limitation periods. In Roberts, the plaintiff sued a municipality for migration of contaminated water from a sewage lagoon onto his property. The relevant statute provided that the action had to be commenced within one year of the act being committed. The city took the position that the action was commenced more than one year after the migration began as a result of which it was statute barred. The court quoted Salmond on Torts, 15th ed., at p. 791, as follows:

When the act of the defendant is a continuing injury, its continuance after the date of the first action is a new cause of action for which a second action can be brought, and so from time to time until the injury is discontinued. An injury is said to be a continuing one so long as it is still in the course of being committed and is not wholly past. [34]

[39] The Court noted that this has been a principle of limitations law in Canada since the Supreme Court of Canada’s 1939 decision in Crushed Stone Ltd. v. Anger. [35]

[40] The second case is that of the Court of Appeal for Ontario in Toronto General Trusts Corporation v. Roman [36] in which the court stated:

To the general rule that damages resulting from one and the same cause of action must be recovered once and for all there are certain well-recognized exceptions, one instance of which is where damages arise from a continuing cause of action, viz., from the repetition or continuance of acts or omissions of the same kind as that for which the action has been brought. [37]

[41] Roman did involve principles of res judicata. As always, however, the statement must be read in the context in which it was made. In Roman, the plaintiff succeeded at trial and obtained an order requiring the defendant to deliver shares to the plaintiff. The defendant then appealed unsuccessfully to the Court of Appeal and the Supreme Court of Canada. The defendant continued to hold the shares throughout the appeals during which time the shares also dropped in value. The plaintiff then brought a second action to recover the damages he sustained by virtue of the decrease in value of the shares during the defendant’s wrongful detention. The trial judge dismissed the second action based on principles of res judicata. The Court of Appeal allowed the plaintiff’s appeal, holding that “it is well settled that where there is a continuing wrong from which damages continue to flow, the person whose right is infringed may bring a fresh action to recover new damages arising therefrom.” [38]

[42] In Roman, the second action was truly for a new, different cause of action that was not addressed in the first claim. The first claim merely addressed the plaintiff’s right to the shares. The second claim addressed damages from the defendant’s failure to abide by the court order arising out of the first claim.

[43] The British Columbia Court of Appeal dealt with a claim more akin to this action in Zhang v. Davies. [39] In Zhang, the plaintiff sued his neighbour for nuisance and succeeded. The plaintiff then commenced a second action for damages arising from the continuing nuisance. The British Columbia Court of Appeal held that even though a continuing nuisance could constitute a separate cause of action, the real question was to determine if the first action exhausted the continuing tort claim. [40] The answer to that question turns on whether the first judgment addressed continuing harm. [41] In Zhang, the first action awarded damages for the continuing nuisance as a result of which the second claim was barred.

[44] In the case at bar, the 1989 action clearly claimed damages for continuing migration. That claim was dismissed because it could not be tried fairly. If the claim for continuing migration could not be tried fairly in 2014 because of the lapse of time, a trial 10 years later would be even more unfair.

iii. The Claim of New Law and New Facts

[45] CN next argues that it is inappropriate to dismiss the claims about coal tar in the 2014 action because they are based on new law and newly discovered facts. I do not accept that submission.

[46] The allegedly new law on which CN relies is the decision of the Court of Appeal for Ontario in Sorbam Investments Ltd. v. Litwack, [42] which CN submits stands for the proposition that a property owner is liable for migration of contaminants from its own property onto the property of that of another. In oral argument, counsel for CN conceded that this was not a new proposition of law. Indeed, the trial decision in Sorbam relied on authorities as early as 1940 for the proposition that migration from one property to another amounted to a nuisance. [43]

[47] The allegedly new factual information is that there has been continuing migration of coal tar from the Hogg property to the CN property since 2014. That is not a new fact given that the 1989 claim alleged that contamination was continuing to migrate from the Hogg property to the CN property.

iv. Limit of the 2014 Action to Applicable Limitation Period

[48] CN suggests that the 2014 claims about coal tar contamination differ from those in the 1989 action because the 2014 action confines the historical coal tar claims to “the applicable limitation period.” This does not constitute valid grounds to permit the 2014 action about coal tar claims to continue.

[49] First, the professed restriction is not contained in the statement of claim itself but is found in the covering letter that accompanied the statement of claim in 2014. That letter does not say what the “applicable limitation period” actually is.

[50] Second, even if the 2014 action were limited to migration that arose after the 1989 action was dismissed, that claim would still constitute an abuse of process. One of the issues in litigating the coal tar contamination is the identity of the party that originally deposited the coal tar on either the Hogg or the CN property. The allegation in the 1989 action was that it was the Public Utilities Commission of Kitchener and its successor the City of Kitchener who did so. As a result, Hogg would have a cross-claim against the Commission and/or the City for dumping coal tar on its property which subsequently migrated onto the CN property. Those issues were ones that Justice Myers found could not be tried fairly because of the lapse of time and CN’s delays in advancing the 1989 action.

V. Benzene Claim

[51] CN submits that the benzene claim was not part of the 1989 action and should not fall within the concept of abuse of process. Hogg submits that the benzene claim was part of the 1989 action for two reasons.

[52] First, because the 1989 claim referred to contamination by coal tar “and other contaminants.”

[53] Second, Hogg submits that CN knew or ought to have known of benzene contamination before Justice Myers dismissed the 1989 action. In this regard, Hogg submits that cause of action and issue estoppel extend to any cause of action or issue which could have been argued in the prior action if the party in question had exercised reasonable diligence and if the cause of action/issue properly belonged to the subject of the prior action. [44]

[54] Although I accept this latter proposition as a correct statement of law, I am not prepared to dismiss the 2014 action with respect to the benzene claims for the reasons set out below.

[55] Hogg argues that the fuel tanks were constructed on its property in 1974 and that there was evidence of petroleum hydrocarbon contamination (benzene) on the Hogg property as far back as 1994. [45] In 1994 an environmental consultant advised Environment Canada about the potential risk of contamination emanating from the Hogg storage tanks, including one which held more than 1 million gallons. [46] The consultant recommended: (i) a “cursory subsurface program” to investigate the vicinity of the aboveground fuel storage tanks on the Hogg property; [47] and (ii) future, further investigations to properly characterize any other contaminants and contamination sources that might be present at the site. [48] Trace amounts of total petroleum hydrocarbons were found in the ground between the Hogg storage tanks and the CN property in 1994. [49] The levels of petroleum hydrocarbon contamination in groundwater in 1994 were, however, within the accepted guidelines of the day. Similar studies were conducted in 1997/1998 with similar results.

[56] That information does not constitute a basis for concluding that benzene contamination was or ought to have been pursued in the 1989 action. That information is restricted to the Hogg property. If anything, it demonstrates that Hogg knew or ought to have known that petroleum hydrocarbons were migrating from the fuel tanks toward the CN property and could migrate further onto the CN property.

[57] At around the same time, CN consultants conducted their own investigation and concluded that there was no reason to believe that anything other than coal tar was migrating from the Hogg property. [50] Hogg shared this view and had its lawyers write to the Ontario Ministry of the Environment in May 1994 stating that there was “no basis for believing that there [was] any other contamination originating from the Hogg” property other than coal tar. [51]

[58] Hogg’s tanks were also registered and licensed under the Ontario Technical Standards and Safety Authority (TSSA). That licensing regime required Hogg to report and mitigate any spills or discharges, and notify CN as an adjacent property owner of any potential environmental impacts to CN’s property caused by spills on the Hogg property. [52]

[59] Hogg’s fuel expert agreed that it would be reasonable for an adjacent property owner to expect a TSSA licensee to comply with its reporting and notification obligations. [53] CN never received any notification about a potential impact to the CN property because of a spill on the Hogg property. [54] Publicly available spill records indicate that the small number of spills that occurred on the Hogg property had been properly cleaned up. [55]

[60] In those circumstances there was no information in the 1990s that would have made benzene contamination part of the 1989 action.

[61] Hogg next argues that by January 2013 CN had received an expert report advising of benzene contamination on its property from a source separate from the coal tar. [56] In February 2014 CN received two further reports which reported on the presence of benzene on the CN property [57] and which concluded that the likely source was the Hogg storage tanks.

[62] Since then CN has received further expert reports which estimate that 112 grams of benzene migrate from the Hogg property onto the CN property each year. Five grams of benzene can contaminate approximately 1,000,000 litres of water to a level above those set out in the applicable drinking water guidelines. [58] The new migration level of 112 grams per year is also approximately 10 times higher than what was reported in 2013. This suggests that the benzene plume is expanding. [59]

[63] There are residential properties located to the southeast of the CN property. CN’s expert has expressed significant concern about the possibility of benzene vapour entering the homes. [60]

[64] Hogg submits that CN knew about the benzene contamination at the time of the argument before Justice Myers. The 2014 expert reports were in the record before Justice Myers. Hogg argues that it was open to CN to have argued that benzene contamination was different than coal tar contamination and that, even if the 1989 claim were struck with respect to coal tar, it should be allowed to continue with respect to benzene or other contaminants.

[65] Although this may be, strictly speaking, correct, it would in my view hold CN to too strict a standard and would give Hogg a license to pollute without affording CN a reasonable opportunity to pursue a remedy.

[66] It is clear that the focus of the 1989 action was coal tar. Although benzene may have crystallized as an issue by 2014, the focus of Justice Myers’ reasons is coal tar. His reasons do not refer to benzene contamination.

[67] The allegations with respect to benzene make it an issue that is entirely separate from coal tar. Benzene emanates from a different source. It arose at a different time. It arose from the activity of different actors. It is located on a portion of the CN property entirely separate from the location of coal tar. It requires different remediation methods than coal tar.

[68] The thrust of Justice Myers’ decision was that the 1989 action should be dismissed because of inordinate delay on the part of CN in prosecuting its claim. By the time Justice Myers dismissed the CN claim it had been extant for 25 years. The coal tar itself had been deposited on the property between the 1920s and the 1950s. Given CN’s delay, its failure to preserve evidence, and the historical nature of the coal tar contamination, Justice Myers concluded that it was impossible to try the issue of coal tar contamination fairly.

[69] Those issues do not arise with respect to the claim for benzene contamination. The benzene contamination appears to emanate from the fuel tanks on the Hogg property. The source of the contamination and the actor responsible for it are easily identifiable. There is no suggestion that benzene was dumped onto either the Hogg or CN property by a third party. The tanks were constructed on the Hogg property in 1974. The issues surrounding benzene contamination do not give rise to the same trial fairness concerns that the allegations about coal tar did.

[70] Moreover, given that the benzene contamination only crystallized as an issue in 2014, it could not have been subject to the same sort of delay that prompted Justice Myers to dismiss the 1989 action.

[71] Dismissing the benzene contamination in 2014 would mean that the court was dismissing that claim for delay even before the expiry of the two-year limitation period to commence the claim. That would be an untenable result.

Conclusion and Costs

[72] As a result of the foregoing, I grant summary judgment dismissing those claims in the 2014 action that relate to coal tar contamination but dismiss the motion for summary judgment in so far as it relates to claims for benzene contamination in the 2014 action.

[73] I appreciate that this constitutes an award of partial summary judgment. The Court of Appeal for Ontario set out the test for partial summary judgment in Malik v. Attia. [61] That test requires the party seeking partial summary judgment to:

• (i) Demonstrate that dividing the determination of the case into several parts will prove cheaper for the parties;
• (ii) Show how partial summary judgment will get the parties' case in and out of the court system more quickly; and
• (iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[74] I am satisfied that granting summary judgment as I propose is consistent with this test.

[75] Granting summary judgment on the coal tar claims is considerably cheaper than requiring the parties to try to find, reconstruct, and present evidence about coal tar contamination of the property since the 1920s. Disposing of the coal tar claims on summary judgment would certainly allow the parties to get to trial more quickly and would considerably shorten the trial. I am equally satisfied that granting summary judgment on the coal tar contamination cannot result in inconsistent findings because the two forms of contamination involve different causes, different actors, different times, different locations and different remediation methods. They are simply two completely separate issues.

[76] Both parties have filed cost outlines on Case Centre. Given the divided success on the motion I will allow both parties additional time to make submissions on costs. Hogg will have until January 20, 2025 to make submissions. CN will have until February 3, 2025 to respond. Hogg will then have until February 10, 2025 to reply.

[77] As a coincidental matter in closing, CN also moved to strike out four sentences in the affidavit of Charles Donaldson sworn September 28, 2023. I declined to address that motion at the hearing because of time limitations. That issue is most conveniently dealt with at the opening of trial or at a case conference.

Released: January 6, 2025
Mark L. Koehnen

References

[1] See the 1989 Statement of Claim at paras 1(a), 1(b), 1(f), 1(j)-(i), 20-22; 2014 Statement of Claim at paras 14, 16, 22, 24, and 27.
[2] 1989 Statement of Claim at paras 15, 17, 22-23.
[3] Canadian National Railway Company v. Kitchener (City), 2014 ONSC 4929 at paras. 71-72.
[4] Canadian National Railway Company v. Kitchener (City), 2014 ONSC 4929 at paras 50, 53, 74, 49.
[5] Canadian National Railway Company v. Kitchener (City), 2014 ONSC 4929 at para. 68.
[6] Canadian National Railway Company v. Kitchener (City), 2014 ONSC 4929 at para. 71.
[7] Canadian National Railway Company v. Kitchener (City), 2014 ONSC 4929 at para. 71.
[8] Canadian National Railway Company v. Kitchener (City), 2014 ONSC 4929 at para. 71.
[9] Canadian National Railway Company v. Kitchener (City), 2014 ONSC 4929 at paras 71-72.
[10] Canadian National Railway Company v. Kitchener (City), 2015 ONCA 131.
[11] Canadian National Railway Company v. Corporation of the City of Kitchener, et al..
[12] 2014 Statement of Claim at paras 14, 16, 22, 24, and 27.
[13] Hryniak v. Mauldin, 2014 SCC 7 at paras 5, 36.
[14] Hryniak v. Mauldin, 2014 SCC 7 at paras 4, 49.
[15] Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141 at paras 30, 33.
[16] See Donald J. Lange, The Doctrine of Res judicata in Canada, 5th Ed (Markham: Butterworths, 2000), ch 1 s 2, “A Cornerstone of the Justice System”.
[17] Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141 at paras 31-32.
[18] Direct Horizontal Drilling Inc. v. North American Construction Management Ltd., 2021 BCSC 483 at para 31.
[19] Azeri v. Esmati-Seifabad Estate, 2009 BCCA 133 at para 51.
[20] Caliciuri v. Matthias, 2017 ONSC 748 at para 24; Sharma v. Ouellette, 1991 CarswellOnt 338 (Gen Div.) at para 11; Hudon v. Colliers MacAulay Nicolls Inc., [2000] O.J. No. 3125 at para 7.
[21] Garry D. Watson and Derek McKay, Holmested and Watson: Ontario Civil Procedure, (Toronto: Carswell, 2024) at § 37:20.
[22] Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.
[23] Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para 38.
[24] Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para 37.
[25] Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para 35.
[26] Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para 43.
[27] Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para 37.
[28] Mintz v. Wallwin, 2009 ONCA 199.
[29] Mintz v. Wallwin, 2009 ONCA 199; see also Dalton v. Woszczyna et al., 2022 ONSC 826 at paras 27-30; 2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd., 2021 ONSC 5746 at para 44; Tataryn v. Diamond & Diamond, 2023 ONSC 6165 at para 24; 990114 Ontario Ltd. v. Champion Products Corp., 2016 ONSC 7102 at para 14; Papasotiriou-Lanteigne v. Tsitsos, 2023 MBCA 66.
[30] 2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd., 2021 ONSC 5746 at para 44.
[31] Sauve v. Canada, 2002 FCT 721.
[32] Sauve v. Canada, 2002 FCT 721 at para 20.
[33] Roberts v. City of Portage La Prairie, [1971] SCR 481.
[34] Quoted at Roberts v. City of Portage La Prairie at p. 491.
[35] Crushed Stone Ltd. v. Anger, [1940] S.C.R. 174.
[36] Toronto General Trusts Corporation v. Roman at para 16, aff’d.
[37] Toronto General Trusts Corporation v. Roman at para 16; aff’d. See also Lovas v. Lovas at paras 11-13.
[38] Toronto General Trusts Corporation v. Roman at para 20, aff’d.
[39] Zhang v. Davies, 2021 BCCA 196.
[40] Zhang v. Davies, 2021 BCCA 196 at paras 13-14.
[41] Zhang v. Davies, 2021 BCCA 196 at para 14.
[42] Sorbam Investments Ltd. v. Litwack, 2022 ONCA 551.
[43] Sorbam Investments Ltd. v. Litwack, 2021 ONSC 5226 at para 80 relying on Turner v. Delta Shelf Co. (1995), 24 C.C.L.T. (2d) 107 (B.C.S.C.) and Sedleigh-Denfield v. O'Callaghan, [1940] A.C. 880 (H.L.).
[44] The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354 at para 50.
[45] Livingstone Expert Report, p. 84; Transcript of the Cross-Examination of Stephen Livingstone dated May 14, 2024 QQ. 166-170, pp. 55-57; Transcript of the Cross-Examination of James Cullen dated May 16, 2024, QQ. 233-237, pp. 103-104.
[46] Donaldson Affidavit at para 41; Exhibit “Q” to the Donaldson Affidavit, Green Plan Environmental Corporation, “Environmental Site Assessment at Hogg Fuel & Supply Ltd., Kitchener, Ontario - Interim Report #1” (May 3, 1994) at sections 3.0 and 4.1.
[47] GPEC May 1994 Report, p. 434.
[48] GPEC May 1994 Report, p. 423.
[49] Livingstone Expert Report p. 84; Livingstone Cross-Examination, QQ. 166-168, pp. 55-56; Cullen Cross-Examination, QQ. 233-234, pp. 103-104.
[50] Livingstone Report, p. 40.
[51] Livingstone Report, p. 40 and 93.
[52] Donaldson Cross, Exhibit 2, TSSA Environmental Management Protocol for Fuel Handling Sites in Ontario August 2012; Livingstone Report, p. 41.
[53] Donaldson Cross, qq. 113-116, pp. 42-44.
[54] Donaldson Cross, qq. 122, p. 46.
[55] Cullen Cross, q. 191, pp. 84-87.
[56] Exhibit “M” to the Donaldson Affidavit, Affidavit of James Cullen sworn February 9, 2023; Cullen Cross-Examination, Q. 260, p. 114.
[57] Cullen 2023 Affidavit at para 12; WSP Golder 2014a Report, pp. 74, 106-107; WSP Golder 2014b Report, p. 277.
[58] Patrick Report, CN MR, Tab 2(B), p. 1124.
[59] Patrick Report, CN MR, Tab 2(B), p. 1108 and 1125.
[60] Patrick Report, p. 1124.
[61] Malik v. Attia, 2020 ONCA 787 at para 62.