Date: 20010712
Docket: T-2346-87
Citation: 2001 FCT 792
BETWEEN:
VALERIE JOAN MARKESTEYN
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
HARGRAVE, P.
[1] These reasons, which arise out of an unsuccessful motion to have a separate determination of an issue, deal with the selection of and the balancing of circumstances, factors and evidence in order to determine whether the separate trial of an issue "...is more likely than not to result in the just, expeditious and least expensive determination of the proceeding on its merits.", as required by Illva Saronno S.p.A. v. Privilegiata Fabbrica Maraschino "Excelsior" [1999] 1 F.C. 146 at 154, a decision of Mr. Justice Evans, as he then was. I will begin with some relevant background.
BACKGROUND
[2] This action began as a class action on behalf of all riparian landowners on some 116 kilometres of the Red River and 6.5 kilometres of the Assiniboine River. The class action aspect was abandoned in April of 1999. The action is now about damage to one person's property, adjacent to the Red River, as set out in the amended Statement of Claim.
[3] The amended Statement of Claim of April 1999 delineates a claim for bank erosion by the Red River, said to be caused by the operation of the St. Andrew's Dam, near Lake Winnipeg. As a result of alleged interference with the natural flow of the Red River by the Dam, the Plaintiff claims for lost property and a home. In addition, the Plaintiff claims the cost of building a new home farther inland. More specifically, the Plaintiff says, among other things, that the artificially raised water levels, during summers and falls, caused by the operation of the St. Andrew's Dam, a dam designed to make the St. Andrew's rapids navigable, not only allows wave action to undercut the river bank, but also saturates the Plaintiff's river bank. Pertinent here is when the Dam is opened in late October or early November, to lower the river system to its natural level, so as to avoid subsequent ice damage to the Dam, the river water no longer supports the heavy saturated river bank, allowing it to collapse. This collapse is also referred to, elsewhere in the material, as sliding and as slumping. All of this is said to be an ongoing problem.
[4] The Plaintiff, represented by Dr. Markesteyn, as executor, claims for diminished utility of the land, abandonment of a home, interference with use and enjoyment both of the land at 758 Crescent Drive in Winnipeg and of riparian rights, and injury to the land by reason of negligent operation of the Dam.
[5] The defence is somewhat complex, however it may be summarized as setting out that the St. Andrew's Dam plays no part in any river bank erosion or slumping along the Plaintiff's river frontage. Loss of the Markesteyn foreshore is said to be the result of many factors including human activities other than the Dam, floods, flood water saturation and the loss of support as flood waters recede and ice movement against the bank. The crown also suggests, as causes for the Plaintiff's problems, an inherent instability resulting from a number of factors including historic fault lines or slip planes, soil types and natural turbulence and current in the water which has resulted in scouring and thus a loss of support to the toe of the bank fronting the Markesteyn property. The thrust of this aspect of the defence is that it is site specific. This is not to say that similar erosion and slippage does not occur elsewhere, but rather that the Defendant's research, geophysical and soil work and inspections have been, for at least the most part, specific to the Markesteyn property and to the Red River adjacent to the Markesteyn property.
[6] The Defendant also pleads a number of more technical, but if proven completely proper defences, including failure to mitigate, various limitation acts, many heads of contributory negligence, the B.N.A. Act, various public works acts, various St. Andrew's lock regulations, want of riparian rights, reservations in the original grant of the Markesteyn property concerning navigation and the British Prescription Act of 1832.
[7] All told the cases of the Plaintiff and of the Defendant will take some five weeks of trial, assuming that a portion of the expert evidence is taken de bene esse by reason of the age of some of the experts.
[8] In what I believe is a bona fide attempt to shorten the trial and perhaps even to avoid a trial, the Plaintiff has proposed a separate determination of an issue under Rule 107 which provides that:
Separate determination of issues - The Court may, at any time, order the trial of an issue or that issues in a proceeding be determined separately.
[9] The issue, as set out by the Plaintiff, is:
Whether the operation by the Defendant of the St. Andrew's Dam causes damage by erosion and slumping of the banks of the Red and Assiniboine Rivers upstream of the Dam as pleaded in a Statement of Claim, and in particular paragraph 7 and 8 thereof, be tried separately and expeditiously at a date and time to be fixed by the Court.
Paragraph 7 of the amended Statement of Claim, referred to above, considers the construction of the St. Andrew's Dam between 1903 and 1910 and the use, control and operation of the Dam by the Defendant and particularly the operation of the Dam to raise water levels in summer and in fall. Paragraph 8 deals with the effect of the raised water levels, being the holding of water at a higher level and against the river bank allowing undercutting, erosion and slumping, all exacerbated by rapid drawdown of water in the fall:
8. As a result of the operation of the dam by the defendant and the consequent raising of water levels above the state of nature, the river water has been held against the steeper gradient upper banks of the channels of the Rivers. These banks have thereby been eroded and undercut by wave action, and have been deeply and persistently penetrated by water, causing the land at the river banks to fall into or slump downwards towards the Rivers. This erosion and slumping has been accelerated and exacerbated by the drawdown of the water levels in the fall when the river banks are rendered unstable by undercutting and water loading.
[10] The Plaintiff submits that the issue, which I have set out above, is fundamental to the action and that if it were determined separately would likely result in a just, expeditious and least expensive determination of the action.
[11] The Defendant, in opposing the motion, takes two principal approaches, which have been helpful in analyzing this matter. Fundamental is whether the separate issue, proposed by the Plaintiff, is one that either must be or needs to be determined before the Court may dispose of the case: the submission here is that the issue is irrelevant and need not be determined, for the Statement of Claim sets out a much narrower question. Second, the Defendant submits that if this is an incorrect analysis and assuming that the issue is relevant, the Plaintiff has not met the onus of demonstrating that separation will more likely than not result in a procedure that is fair and just, a procedure that does not prejudice the Defendant, with the converse, unjustness, unfairness and prejudice in fact being the situation. Moreover, the Defendant submits that not only will there be no saving of time by splitting the trial, but indeed, were the Plaintiff to obtain a favourable ruling on the separate determination of the issue, that would assist not at all, for the judge at the eventual trial would then have to hear the same evidence all over again. I now turn to my analysis.
ANALYSIS
Severance under Rule 107
[12] I have, in examining the issue proposed by the Plaintiff, kept in mind that fundamental to Rule 107 is a clearly defined issue that must or should be determined before the Court can dispose of the case. However, I must also consider the current test to apply in order to obtain severance under Rule 107.
[13] As Mr. Justice Evans pointed out in Illva Serrano (supra), at page 153, Rule 107, new in 1998, is somewhat broader than former Rule 480. It allows severance where the issues are both of fact and of law. Rule 107 must be read subject to Rule 3 and thus, accordingly, "...be interpreted and applied so as secure the just, the most expeditious and least expensive determination of every proceeding on its merits.".
[14] Mr. Justice Evans went on to formulate what is presently accepted as the test to be applied to obtain an order under Rule 107:
Accordingly, on the basis of previous authority and in light of the changes introduced by the 1998 Rules, I would formulate the test to be applied under rule 107 as follows. On a motion under rule 107, the Court may order the postponement of discovery and the determination of remedial issues until after discovery and trial of the question of liability, if the Court is satisfied on the balance of probabilities that in light of the evidence and all the circumstances of the case (including the nature of the claim, the conduct of the litigation, the issues and the remedies sought), severance is more likely than not to result in the just, expeditious and least expensive determination of the proceeding on its merits. (Page 154 of Illva Saronno)
Relevance of the Issue Proposed for Summary Determination
[15] The test in Illva Saronno leads first, in this instance, to a consideration of whether the issue, as proposed by the Plaintiff for a separate determination, offers any assistance toward a just, expeditious and least expensive determination. On the one hand, the proposed issue for separate determination, that of erosion and slumping of the Red River and of the Assiniboine River, extending to all the bank areas of both rivers immediately from the Dam to a position many kilometres beyond the city of Winnipeg on the Red River, is a very broad issue, involving land in many different circumstances and situations. On the other hand, the amended Statement of Claim seeks relief for damage to one relatively small parcel of land owned by the Plaintiff. There would seem to be no reason to determine the broader question, that of any upstream damage attributable to the Dam, when the real question, is set out in the amended Statement of Claim, is actionable damage to the Markesteyn property alone.
[16] Here I do not fault the Plaintiff for any attempt to return to the class action abandoned several years ago. Rather I would attribute to the Plaintiff an attempt to both save costs by trying to avoid some of the questions which would arise on a trial and to utilize some of the Plaintiff's general studies of the two river systems which suggests that at some locations on the river bank some damage is related to the St. Andrew's Dam. Yet to decide a broad issue, which has bearing on the Plaintiff's case only if a similar or clearly analogous situation can be found elsewhere along some 245 kilometres of shoreline and then to subsequently demonstrate that the Markesteyn property is in that same situation and that there is actionable damage, is a retrogressive step which will lead to no quick, inexpensive or just overall solution. Far better and more effective to tackle the narrow issue of erosion and slumping as experienced along the Markesteyn shoreline. Thus I would deny the splitting of the trial in order to separately determine an issue which is far too broad. Yet there is another reason, at least as equally valid, for denying the separate determination of the issue as set out by the Plaintiff.
Rule 107 as a Departure from Determining All Issues Together
[17] Rule 107 is a departure from the normal procedure which, in the interest of efficiency, requires the whole of a case to be tried at the same time:
... one starts with the premise that normally it is more efficient if all issues are determined together, rather than separately. Bifurcating normally leads to a duplication of procedural steps and costs because there are two separate discovery procedures, two trials or trial type proceedings, and possibly two separate appeals. It is the moving party that has the burden proof and persuasion that the departure from the general rule is justified. (Value Village Market (1990) Ltd. v. Value Village Stores Co., paragraph 6 of an unreported 29 October 1999 decision of Madam Justice Reed in T-2707-92)
Important in this passage is the concept that bifurcation of the trial can result in duplication and a compounding of costs.
[18] In Value Village Madam Justice Reed also notes in the above passage that it is for the moving party to justify a departure from the general rule of determining all issues together. I have already pointed out, referring to Illva Saronno (supra), that this burden on the moving party is satisfied by showing that, on the balance of probabilities and keeping all the circumstances in mind, severance is more likely than not to result in the just, expeditious and least expensive determination on the merits. The circumstances or factors to consider are open ended. Mr. Justice Himel, of the Ontario Superior Court of Justice, suggests various factors for consideration in General Refractories Co. of Canada v. Venturedyne Ltd., an unreported 2 March 2001 decision in court file 3409/85:
16. Extrapolating the principles from the case law in this area, the following issues are among those the court should consider in deciding whether severance of a trial is just and expeditious:
1) Whether issues for the first trial are relatively straightforward;
2) The extent to which the issues proposed for the first trial are interwoven with those remaining for the second;
3) Whether a decision at the first trial is likely to put an end to the action altogether, significantly narrow the issues for the second trial or significantly increase the likelihood of settlement;
4) The extent to which the parties have already devoted resources to all of the issues;
5) The timing of the motion and the possibility of delay;
6) Any advantage or prejudice the parties are likely to experience; and
7) Whether the motion is brought on consent or over the objection of one or more of the parties.
17. This is not a checklist, but rather a number of factors likely to have a bearing on the justice and expediency of the process. That there are a greater number of factors pertaining to expediency does not suggest this issue is more important. As Wilkins J. stated in Royal Bank v. Kilmer, supra, fairness and justice are the dominant consideration.
Mr. Justice Himel does not put these factors forward as a checklist. I have adopted some of them where they apply in the present instance. However I will begin with the point that I have already touched upon, that the issue proposed complicates rather than simplifies the matter before the Court.
The Nature of the Issue Before the Court
[19] The executor of the Plaintiff's estate submits, in affidavit material, that if successful on the trial of the separate issue the remaining issues would be narrowed to the circumstances of the Markesteyn property. Yet in fact the issue set out in the amended Statement of Claim is already narrowed to that extent, there being only one plaintiff and one property to deal with, the relief being specifically limited to that one property.
[20] To sever the issue, as proposed by the Plaintiff, complicates, rather than simplifies, the whole matter, potentially leading to at least as long a hearing process and perhaps a longer hearing process than if the whole matter were dealt with at once.
Ambiguity Inherent in the Issue
[21] The separate issue as set out by the Plaintiff may be answered in a number of ways, not simply as a positive or a negative, as a result of an inherent ambiguity. The issue assumes that the effect of the Dam is homogeneous along the entire length of the two river banks where the Dam causes water levels to fluctuate. It is inherent in the issue, as framed, that the erosion and slumping varies only in degree, from site to site and from time to time. Moreover, the issue assumes that erosion is detrimental to river banks and synonymous with river bank failure. By way of example, the question might be answered by a finding that the Dam caused no erosion or slumping anywhere; that the Dam is capable of causing erosion or slumping, depending upon the specific site, but that would require a site specific analysis; that the Dam is capable of causing erosion, but such may be beneficial to bank stability; or that the Dam causes a homogeneous and continuing detrimental effect, varying only in degree from site to site.
[22] I need not determine the effect of the Dam, however, from the affidavit evidence, it seems quite likely that, rather than either a lack of causation or homogeneous and continuing detrimental erosion or slumping, the Dam may be capable of causing erosion, depending upon local site conditions and that erosion can in some instances be beneficial to bank stability, but that both of these possibilities require a site specific analysis. This site specific analysis, in the case of the Markesteyn property, on the part of the Crown, appears to have been thorough. The analyses include those of soil type, bank geometry, bank loading, wind generated waves and fetch distance, vessel generated waves, soil saturation levels and existence of natural slide planes, all discovered by detailed examination of river bank, river bottom and adjoining benches, drilling, sampling, historic surveys and diagrams related to river bank slides at or near the Markesteyn property. While one must keep in mind the experts retained by a party are going to put the best light on that party's position, the issue, as set out by the Plaintiff, is far too broad, with the real question of the damage caused by the Dam revolving about the Markesteyn property and the effect of the Dam on that particular property, together with issues of contributory negligence on the part of the Plaintiff. All of this points to the need for certainty and narrowness in the question posed, rather than an ambiguous question. Bartmanovich v. Manitoba Crop Insurance Corporation [1998] 8 W.W.R. 311, a decision on Manitoba Queen's Bench, referring to the trial of an issue, is pertinent in that it warns against general and ambiguous issues:
45. In my view, the issue or issues to be tried by way of expedited trial under the rule should be separate and distinct from the remaining or consequent issues.
46. The issue(s) for trial should be capable of being formulated in a precise manner rather than a manner that is either general or ambiguous. Preferably, the issue(s) should be capable of being framed in a manner that can be responded to with a "yes" or "no" answer.
47. To the extent possible, the issue(s) for trial ought not to involve an issue or issues of credibility.
48. The issue(s) to be tried by way of an expedited trial should be framed in a manner that is neutral; not in a manner that is slanted to favour one or more of the parties to the litigation. (Page 320)
Bartmanovich thus calls for separate and distinct issues, formulated in a precise manner, framed in a neutral way, preferably issues capable of a yes or a no answer.
[23] There are at least three possible outcomes if the issue as drafted by the Plaintiff was severed for a separate hearing. Here I discount the possibility of a finding that the Dam does not cause any erosion or slumping anywhere on the river system, a position which is even at odds with the Defendant's expert evidence. That being the case, the matter would in all likelihood have to be set for a full hearing in order to explore site specific possibilities, with all the panoply of trial, including some of the same evidence. All of this is not to say that I have weighed the respective merits of the positions of the parties: rather I have set out the positions of the parties. However, to conclude, the ambiguity of the issue as framed by the Plaintiff will in all likelihood prolong, complicate and make more expensive the determination of the real case between the parties.
An Interweaving of the Separate Issue with the Balance of the Trial
[24] The issue as framed by the Plaintiff can not be decided in the abstract, but must be with reference to a number of river bank properties where there has been erosion. Here I would note, as an aside, that the fact that erosion caused by various factors has occurred, in some locations, perhaps with and perhaps without damage, is not open to debate.
[25] From the affidavit evidence of Dr. Markesteyn and from the report of Mr. Morgan, the Plaintiff's expert, it is clear that the Plaintiff intends to refer both to the Markesteyn property and to property generally on the Red and the Assiniboine rivers. The Defendant says it will refer to site specific evidence of erosion and bank failure arising out of its studies of the Markesteyn property. This latter evidence will, if accepted, tend to refute the contention of universal bank erosion and slippage due to the actions of the Dam. Clearly the site specific evidence related to the Markesteyn property would be before the Court at the trial of the issue and then have to be revisited at the second trial before there might be any determination of either liability or damages. Among those site specific issues might also be limitation periods, unreasonable use, the defence of reasonable user, independent causes of erosion to and slumping of the Markesteyn property making failure inevitable at some time, contributory negligence, the defence of statutory authority, Crown immunity arising out of policy, reservation of rights in the original Crown grant relating to the Plaintiff's land and prescriptive easement. All of these relate to the Plaintiff's land itself. This cannot help but involve repetition of at least a good part of the evidence adduced at the trial of the Plaintiff's issue.
[26] One wonders whether the judge at the first trial might feel constrained by his or her mandate when, having all of the evidence as to damage and causation of damage to the Plaintiff's property, he or she is barred, by the framing of the issue, from answering an obvious and narrow question of causation of damage to the property of the Plaintiff alone. Once a judge had decided the issue, the parties would then likely find themselves back at the beginning, to prove and defend erosion and bank slippage claims to the Markesteyn property itself, again with the possibility of appeals. All of this points to an interweaving of the issue proposed to be split off, with the remaining issues relating to applicability of any general findings to the Markesteyn property, liability and damages. The issue framed by the Plaintiff will not be conducive to narrowing the issues for the second trial, beyond the extent to which they are naturally narrowed by the pleadings. Moreover, the matter not having been settled at this point, it is difficult to see how a general finding might lead to assistance in settling issues of liability and damages specific to the Markesteyn property.
Compounding Costs
[27] The Plaintiff's position, as I understand it, is that if the Defendant is right and that damage upstream of the Dam is not caused by the operation of the Dam, that will save the time and expense of a full trial. This overlooks the concept that the Defendant need not either be right or be able to defend against the general accusation of Dam operation resulting in erosion and slumping, but that the Defendant need only defend on the issue of the operation of the Dam as a cause of erosion, slumping and damage to the Plaintiff's property itself, that being the issue set out in the amended Statement of Claim. This is an example of the compounding of costs by the duplication of procedure referred to in Value Village, supra.
Devotion of Resources to the Issues Pleaded
[28] It is overly optimistic to state, at this point, as does Dr. Markesteyn in his affidavit, that a determination of the general issue proposed for separate trial might result in a saving, for the Defendant's experts have clearly been guided by the amended Statement of Claim and have to date expended much time and incurred substantial expenses in dealing with the specific circumstances relating to the Plaintiff's property. Thus there are no direct savings to the Defendant and only additional and unnecessary expenses in the offing by way of the development of further expert evidence relating to the whole of the systems of the two rivers which are subjected to water level fluctuations by the Dam.
[29] The Defendant also submits and here I agree, that the traditional savings to be considered on a motion under Rule 107 are savings in discovery of documents and examination for discovery. This was a situation in Illva Saronno, (supra) at page 156 and in General Refractories (supra) at paragraph 33. In the present instance there would seem to be no such real savings to be realized, for discovery of documents and examination for discovery have already taken place, save for answers to some undertakings.
Prejudice to the Defendant
[30] To try the proposed issue would prejudice the Defendant, prejudice that cannot be rectified either by allowing further time for the Defendant to make investigation, or by an award of money for cost which may have been thrown away through bringing expert assistance and opinion to bear on the claim as delineated in the amended Statement of Claim. Here I have in mind that while the Plaintiff has had the opportunity of full discovery of the Defendant, the Defendant has had only discovery of the Plaintiff and not of the myriad of riparian land owners who hold property which is subject to and included within the scope of the separate broad issue proposed by the Plaintiff. The Defendant's situation would be tantamount to defending a class action, having to demonstrate that obvious erosion and bank slippage was not, in each instance, the result of the operation of the Dam and to accomplish this without discovery of any sort. This would be prejudicial. Here the Defendant submits that the Plaintiff's issue, which might be looked upon as a revival of the original class action, which the Plaintiff abandoned during argument but before the Court could rule on the Defendant's motion to strike out the class action, is an abuse. However, as I have said, it may well be that the Plaintiff is trying to get as much mileage as possible out of her expert reports which go far beyond the Markesteyn property, to cover much general area.
[31] The Defendant says it is also prejudicial that the focus of the efforts of the Defendant's engineering experts and of the resulting report is limited to the claims in the amended Statement of Claim, that is to the Markesteyn property and that the experts have not been asked to do research and to provide an opinion as to the detrimental effect of the Dam on bank stability along several hundred additional kilometres of river bank. Again, this is not something which should be required, given the pleadings. To force the Defendant to meet such a case, by way of the expanded issue at a summary hearing, would be prejudicial.
Timing of the Motion and Delay
[32] The Defendant submits that this motion might well have been brought a number of years ago, before the Defendant had expended time and money investigating and producing studies on the claim as pleaded. That in itself, if so, could be prejudicial. However, I note that the pleadings were not finalized until the end of 2000. Thus delay is not a factor.
[33] There is, however, the general issue of delay in the future if the separate issue were to proceed. To allow the Defendant the months or possibly even the years which would be required to assemble new expert evidence covering several hundred kilometres of river bank and several thousand pieces of riparian property raises not only an issue of expense and delay, but also that which is inherent in expense and delay, being unfairness.
CONCLUSION
[34] As I noted at the outset, it is for the Plaintiff, who wishes to sever an issue for a summary hearing, to meet the burden of demonstrating that severance is more likely than not to result in a just, expeditious and least expensive determination of the claim on its merits. This the Plaintiff attempted, but was unable to accomplish. In contrast, the Defendant has been able to demonstrate real prejudice, injustice and additional expense which outweigh any theoretical expediency in having an issue determined separately.
[35] In the present instance the issue, as set out for the separate trial by the Plaintiff, is not only, by comparison with the issue as set out in the amended Statement of Claim, far too broad, but also an issue which need not be determined in order to dispose of the action as pleaded.
[36] In addition, to proceed with the separate trial of the issue could well take about the same amount of time and effort as it would to hear all of the pleaded issues together. This leads back to the observation in Value Village (supra) that bifurcation of a proceeding normally leads to a duplication of procedural steps and costs. All the more so here in that the total time to try the summary issue and then to proceed with the remaining issues at a second hearing could well amount to nearly twice the time projected to try all the issues at the same time, for the summary proceeding would not narrow the issues beyond what is now pleaded in the amended Statement of Claim.
[37] Finally, to require a separate trial of the issue would discount the effort made by the Defendant's experts, who confined their investigations to meet the pleadings. To require the Defendant to do a completely new and broader investigation, to meet the trial of the proposed issue, in essence to deal with a class proceeding, at this late date, would be prejudicial to the Defendant and could well be an advantage to the Plaintiff.
[38] In this instance, severance of the proposed issue would not result in a just, expeditious or less expensive determination of the proceeding on its merits. The motion is therefore dismissed, with cost payable to the Defendant.
Vancouver, British Columbia (Sgd.) "John A. Hargrave"
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2346-87
STYLE OF CAUSE:Valerie Joan Markesteyn v. HMQ
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 4, 2001
REASONS FOR ORDER OF HARGRAVE P.
DATED: July 12, 2001
APPEARANCES:
Ken Maclean FOR PLAINTIFF
Louise Lam FOR DEFENDANT
SOLICITORS OF RECORD:
Thompson Dorfman Sweatman FOR PLAINTIFF
Winnipeg, MB
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General
of Canada