4.31: Application to deal with delay
4.33: Dismissal for long delay
7.3: Summary Judgment (Application and decision)
8.14: Unavailable or unwilling witness
8.17: Proving facts

Case Summary

In this Action arising from the historical contamination of the lands in question, United Inc. (“United”) applied pursuant section 218 of the Environmental Protection and Enhancement Act, RSA 2000 c E-12 (the “EPEA”) to extend the limitation period under the Limitations Act, RSA 2000, c L-12 (the “Limitations Act”). In response, Canadian National Railway Company (“CNR”) cross-applied for Summary Judgment of the Action pursuant to Rule 7.3 on the basis that the Action was time barred by sections 3(1)(a) or (b) of the Limitations Act.

The Application to extend limitations under section 218 of the EPEA involved an assessment of prejudice that CNR may suffer as a result of an extension being granted, due to the historical nature of the litigation, with nearly 15 years having passed since the filing of the Statement of Claim. Nonetheless, Justice Feth noted that Rules 4.31 and 4.33 provide mechanisms to deal with the prejudice arising from excessive delay, which CNR could take advantage of should they wish.

Moreover, His Lordship found that the Court has access to a variety of remedies in the Rules to alleviate CNR’s prejudice resulting from a deceased witness who had not been cross-examined on his Affidavit prior to his passing. Specifically, Justice Feth noted that the Trial Judge could admit the deceased’s discovery evidence pursuant to Rule 8.14, or could admit the Affidavit evidence under Rule 8.17. As such, the alleged prejudice could be mitigated, and was therefore insufficient to bar the extension. Thus, the Court favoured United’s position and declined to grant Summary Judgment due to the failure of CNR’s prejudice argument.

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