Summary Judgment – The Cultural Shift Has Started

Earlier this year we discussed on this blog the new "sufficient appreciation test" set out by the Supreme Court in Hryniak v. Mauldin, which really represents a cultural shift in the availability of summary judgment to the parties.

In Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108, the Alberta Court of Appeal applied the test to a certified class action about Rylands v. Fletcher liability.

Background

The appellant, Canadian Pacific Railway Ltd. ("CPR"), has operated a locomotive repair facility for over a century. Until the mid-1980s, a degreasing solvent consisting mainly of Trichloroethylene (TCE) was used in its facility. In 1999, it was discovered that TCE had leaked into the groundwater underneath the facility, and varying levels of TCE had migrated into the groundwater under the surrounding properties. The appellant installed sub-slab depressurization systems under some of these properties in order to reduce the TCE concentrations below