PRACTICE |
Markesteyn v. Canada
T-2346-87
2001 FCT 792, Hargrave P.
12/7/01
19 pp.
Separate determination of issues--Motion for separate determination of issue under Federal Court Rules, 1998, r. 107--Amended statement of claim alleging damage to plaintiff's property as result of bank erosion by Red River, allegedly caused by operation of St. Andrew's Dam, near Lake Winnipeg--Plaintiff submitting artificially raised water levels during summers, falls caused by operation of Dam allowing wave action to undercut river bank, and saturating river bank so that when Dam opened in late fall and water levels subside to natural level, river water no longer supporting heavy saturated bank, permitting it to collapse--Defence alleging loss of plaintiff's foreshore result of many factors including human activities other than Dam, floods, flood water saturation--Also suggesting inherent instability resulting from historic fault lines, soil types, natural turbulence, current, resulting in scouring, loss of support to bank--Thrust of this aspect of defence site specific--R. 107 permitting Court to order trial of issue at any time--Issue proposed by plaintiff for separate trial: whether operation of St. Andrew's Dam causing damage by erosion, slumping of banks of Red and Assiniboine Rivers upstream of Dam as pleaded in statement of claim, paragraphs 7, 8--Motion dismissed--(1) Issue set out far too broad--Illva Saronno S.p.A. v. Privilegiata Fabbrica Maraschino "Excelsior", [1999] 1 F.C. 146 (T.D.) setting out test to apply to obtain severance under r. 107: Court must be satisfied, on balance of probabilities, in light of evidence and all circumstances of case (including nature of claim, conduct of litigation, issues, remedies sought), severance more likely than not to result in just, expeditious, least expensive determination of proceeding on merits--Proposed issue very broad, involving land in many different circumstances, situations--No apparent reason to determine question of upstream damage attributable to Dam when real question actionable damage to plaintiff's property alone--To decide broad issue retrogressive step, leading to no quick, inexpensive or just overall solution--(2) R. 107 departure from normal procedure requiring whole of case to be tried at same time--Moving party must justify departure from general rule--(i) Severance of issue complicating, rather than simplifying matter--(ii) Issue posed ambiguous, far too broad--May be answered in several ways, not simply as positive or negative--Issue assuming effect of Dam homogeneous along entire length with erosion varying only in degree, and that erosion detrimental--Question might be answered by finding Dam caused no erosion, or that capable of causing erosion, but requiring site-specific analysis, or that erosion may be beneficial, or that Dam causing homogeneous continuing detrimental effect--Ambiguity of issue likely to prolong, complicate, make more expensive determination of real case between parties--(iii) Issue proposed interwoven with remaining issues relating to applicability of general findings to plaintiff's property, liability and damages--Involving repetition of evidence--Would not narrow issues for second trial beyond extent to which naturally narrowed by pleadings--(iv) Duplication of procedure compounding costs--(v) Traditional savings to be considered on r. 107 motion savings in discovery of documents, examination for discovery--No such savings to be realized herein as discovery, examination already taking place--(vi) Trial of proposed issue would prejudice defendant as tantamount to defending class action, without discovery of any sort--Also prejudicial in that engineering report focused on claim as related to plaintiff's property, not several hundred additional kilometres of river bank--Plaintiff not demonstrating severance more likely than not to result in just, expeditious, least expensive determination of claim on merits--Federal Court Rules, 1998, SOR/98-106, r. 107