FURLONGER v LAFARGE CANADA INC

The Court certified a proposed Class Action that alleged emissions from a cement plant caused damage to nearby properties. In addressing whether the pleadings disclosed a cause of action, the Court emphasized that under Rule 13.6, a plaintiff need only plead the type of damages claimed, confirming that deficiencies alleged by the Defendant (including punitive damages particulars) did not defeat the pleading. The Court also rejected arguments that the Plaintiff failed to respond properly to a limitations defence, holding that the Rules impose no obligation on a Plaintiff to plead discoverability in Reply, and under Rule 13.12, a failure to file a Reply is deemed to be a denial of the defence.

The Court further noted that limitations issues are generally inappropriate for determination at the certification stage, and that compliance with pleading rules is assessed based on whether the claim is “plain and obvious” to fail. In considering the identifiable class and common issues requirements, the Court found that issues relating to the Defendant’s conduct, including whether emissions reached the class area, could be determined on a class-wide basis, notwithstanding that individual issues such as causation, damages, and defences would remain.

Justice Simard confirmed that, pursuant to Rule 5.37, pre-trial questioning of experts is “exceptional” rather than routine, and that the typical process involves the exchange of primary and rebuttal expert reports, with cross-examination to occur at trial. As such, the Plaintiff’s decision not to cross-examine the Defendant’s expert prior to serving rebuttal evidence did not violate procedural fairness or render the rebuttal report inadmissible.

Finally, in rejecting the Defendant’s request to limit documentary production, the Court confirmed that Rule 5.2 requires production of all relevant and material records, including those predating the proposed limitation period, where they may significantly assist in determining the issues. The presence of individual issues did not outweigh the common issues, and a Class Proceeding was the preferable procedure.