O’Connor v Canadian Pacific: Lack of Factual Basis Derails Certification in British Columbia

August 22, 2024

Written By Ilan Ishai and Jackson Spencer

On June 30, 2021, the Village of Lytton in rural British Columbia was devastated by a wildfire that resulted in personal injury, the destruction of homes and livelihoods, and the tragic loss of life. Various court proceedings related to the wildfire were commenced, including a proposed class action brought by representative plaintiffs Jordan Spinks and the late Christopher (O’Connor O’Connor v Canadian Pacific Railway Limited [O'Connor]).

Mr. Spinks claimed against Canadian National Railway, Canadian Pacific Railway and Transport Canada, among others, in various torts (negligence, nuisance and the rule in Rylands v Fletcher), alleging that railway operations in the area caused or contributed to the start of the wildfire.

On August 9, 2023, the Honourable Chief Justice Hinkson of the British Columbia Supreme Court denied the plaintiff’s certification application. He found that the central allegation against the railway operations was unsupported by the evidence, and identified serious deficiencies in the pleadings such that none of the alleged causes of action satisfied the requirements under section 4(1)(a) of the British Columbia Class Proceedings Act. The Court ruled that, without any evidence that the defendants caused or contributed to the wildfire, the plaintiff had failed to establish some basis in fact that the proposed common issues could be proven in common across the class.

This certification decision is indicative of the British Columbia Supreme Court’s commitment to view the certification application as a meaningful screening device. In particular, plaintiffs must provide sufficient evidence that an issue can be determined in common for the class. Despite the low bar for this standard, it is a hurdle nonetheless.

The Court Engaged with the Evidence and Found It to Be Lacking

At certification, the plaintiff tendered six expert reports “generally related to the cause of the fire”. While the Court reviewed the expert evidence in detail, it identified that none of the plaintiff’s experts opined as to what actually caused the wildfire, let alone whether it was caused by an act or omission of any of the defendants. As a result, the expert reports were of “marginal probative value”, were not legally relevant and thus were deemed inadmissible.

The plaintiff was then left to rely on the supporting fact witness affidavits. In his own affidavit, Mr. Spinks asserted that upon his arrival in the area of the wildfire, he saw smoke rising near a pedestrian bridge that runs parallel to the train tracks over the Fraser River (south-east of Lytton). The plaintiff also tendered an affidavit from a Lytton resident who deposed that he saw a train pass the area east of the pedestrian bridge, after which he saw smoke and flames about 150 feet north of the tracks. The resident also affirmed that he “did not see anything else that could have sparked or otherwise caused the Wildfire.” Video evidence from the train that passed through Lytton before the start of the fire reveals that there were three pedestrians near the pedestrian bridge as the train passed the area.

The Court found that the only evidence possibly connecting the railway to the wildfire was the evidence regarding the sequence of the train passing and smoke arising in the area shortly thereafter, which it held was insufficient “even on the low standard” on which it must consider the evidence.

The Causation Analysis was Fatal to the Common Issues Analysis

For the Court to certify the plaintiff’s proposed class action, Justice Hinkson found that the plaintiff needed to show some basis in fact that the class members’ claims raise common issues, which necessarily required “some basis in fact that there is a common issue in the first place”—an implicit acceptance of the “two-step” common issues test. Here, beyond the assertions that several trains passed through Lytton on the day the wildfire started, and that some vegetation was present adjacent to the tracks, there were no facts alleged as to how any of the railway companies’ trains, tracks or employees caused the wildfire. The central allegation against the defendants was therefore “nothing more than wishful thinking, and certainly not enough to amount to a 'basis in fact' to support [the plaintiff’s] claim.”

Looking Forward

This decision is notable in that it provides a signal to class counsel and potential representative plaintiffs that they must provide more than mere assertions or “wishful thinking”—admissible evidence regarding causation is required. Where plaintiffs seek to rely on the fact that causation could be determined and that the defendants could have internal documents in their possession that could be material to the plaintiff's claims, this will not satisfy the Court.

Plaintiffs must put forth a “cohesive theory”, with evidence in support, for how the defendant’s actions or omissions give rise to issues in common between putative class members. Without that evidence, the Court has signaled that it will not connect the dots, nor draw inferences between previous cases in order to alleviate the plaintiff of its burden to provide evidence in support of certification. For example, although the Court accepted that Lytton was an area known for setting temperature records, and that railway activity can increase the possibility that a wildfire will spark in a given area, “simply because trains have sparked fires in the past, does not mean that a train was the cause of the Wildfire in this case.”

Defendants should be alive to this requirement and similarly question whether the evidence is admissible, what the evidence actually proves, and whether the evidence simply demonstrates possibilities and speculation as opposed to some basis in fact for the proposed common issues.

Bennett Jones represented Canadian Pacific Railway Company and Canadian Pacific Railway Limited—two of the named defendants in the proposed class action—in their successful opposition to certification. While Justice Hinkson dismissed the certification application, he granted leave to Mr. Spinks to amend his pleadings and bring a new application for certification. Since the dismissal of the certification application, a number of additional actions have been commenced against the railway companies and others in connection with the Lytton wildfire by those who were part of the putative class in O’Connor. Pursuant to an Order by Chief Justice Hinkson in April 2024, the vast majority of these overlapping actions are to be collectively case managed by the same judge. To date, no public or private investigation has concluded that train activities caused or contributed to the Lytton wildfire.

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