Supreme Court of Canada will not hear CN Rail appeal over coal tar pollution lawsuit

Canada’s highest court recently announced it will not hear an appeal from Canadian National Railway Company, which in 2014 had a 25-year-old lawsuit – arising from a requirement to clean up land polluted more than 55 years ago by coal tar – dismissed due to delay.

In 1989, CN sued the City of Kitchener, its now-defunct Public Utilities Commission and Hogg Fuel & Supply Limited, alleging coal tar waste had migrated on to CN land.

In 2014, Mr. Justice Frederick L. Myers of the Ontario Superior Court of Justice dismissed the lawsuit due to delay. That ruling was upheld, in a decision released last February, by the Court of Appeal for Ontario. In April, CN filed for leave to appeal with the Supreme Court of Canada. The highest court announced July 23 it dismissed CN’s leave application.

“CN claims that from 1924 to 1958, the Public Utilities Commission of Kitchener owned and operated a coal gasification plant on Gaukel Street in Kitchener, Ontario,” Justice Myers wrote in his decision in 2014. “CN alleges that coal tar, a black to black-brown liquid or semi-solid which solidifies in contact with air, was produced as a by-product of the manufacturing of gas at the plant.”

CN also alleged that the city dumped the coal tar waste on land now owned by Hogg Fuel and supply, and that that waste “has migrated onto CN’s adjoining land.” Those allegations were not proven in court.

CN was essentially suing for the cost of cleaning its land, Justice Myers added.

That lawsuit “was prompted by reports prepared for the Ontario Ministry of the Environment in 1986 and 1987 concerning coal gasification plant waste located on the property of CN and some it its neighbours.”

MOE “advised CN that it was preparing to order the owners of polluted sites and the former gas plant operators to clean-up the contaminated lands,” Justice Myers added.

“There does not appear to be any real dispute that some pollutants have and continue to leach from the Hogg Fuel land downhill onto CN’s land,” Justice Myers noted. “However this may represent a fairly small proportion of the waste located on or under CN’s property. There is a substantial issue in the litigation as to how the vast bulk of the pollution found on or under CN’s property got there.”

Court records indicate that CN initially “preferred taking a cooperative approach with the defendants to try to satisfy the Ministry of the Environment in the mutual interests of all of the parties.”

In 1994, CN demanded statements of defence and two years later, the parties retained consultants to prepare reports.

Three years later, the City of Kitchener “proposed that examinations be conducted of five witnesses who, by that time, were becoming quite elderly or whose health was failing,” so that a transcript of testimony could be available for trial.

In 2003, a judge directed that the case be managed by a case management master, who the following year “required the parties to agree to earlier, fixed dates for discoveries and mediation.”

But in 2004, “the parties’ jointly retained experts advised that the data upon which they had been working for nearly a decade had become outdated and had to be refreshed,” Justice Myers wrote. “The site specific risk assessment required for the Ministry of the Environment could not be filed without updated data.”

A trial scheduling court scheduled in December, 2004 was adjourned.

“Very little happened after the adjournment of the trial scheduling court date,” the Court of Appeal for Ontario noted earlier this year. “CNR and Hogg Fuel both changed lawyers. Hogg Fuel’s counsel advised CNR on February 12, 2010 to either ‘get on’ with the action or abandon it.”

In December, 2011 CN delivered a trial record and the following year, CN filed a certification form to ask for pre-trial conference and dates, but noted it would need to amend its statement of claim.

“While I see the first 14 years of delay as excusable (although the first five of those weakly so) I can see no ‘reasonable and cogent’ or ‘sensible and persuasive’ reasons for the ongoing delays after 2003,” Justice Myers wrote.