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Deer Lake Canal Seepage

Dewey v. Kruger Inc. et al

Newfoundland & Labrador Supreme Court File: 2015 04G 0120 CP

Wagners and Bob Buckingham Law of St. John’s, NL commenced a proposed class action on behalf of individuals who own or reside in property damaged by excessive water seepage from the Humber Canal. The action was filed on May 22, 2015 in the Supreme Court of Newfoundland and Labrador.

The canal runs from Grand Lake to the Kruger Hydroelectric Power Generating Station in Deer Lake, NL. The lawsuit alleges defects in the design, development, oversight and operation of the canal that have caused excessive water seepage and resulting water damage, flooding and mould to properties downstream.

The two firms are working collaboratively on behalf of the Plaintiffs and potential class members.

The Certification Hearing was held on May 26 and 27, 2021 and Justice Peter Browne released his decision and reasons for judgment on September 20, 2021, declining to certify the class action.

The Plaintiff has filed an appeal of the certification decision and is preparing for a hearing before the Court of Appeal of Newfoundland and Labrador. Dates have not yet been set for the appeal hearing.

Updates & Latest Developments

The first major step in a class action is to be certified as a class action. Only when a class action is certified may it then proceed to a trial of the certified common issues. The certification hearing was held on May 26-27, 2021 in the Supreme Court of Newfoundland and Labrador in Corner Brook. Justice Peter Browne released his certification decision on September 20, 2021, in which he declined to certify the class action.

On January 16, 2024, we (Wagners and co-counsel Buckingham Law) appeared before the Court of Appeal for a hearing of our appeal of the lower court’s certification decision. We argued that the proposed class action against the Town of Deer Lake and Corner Brook Pulp and Paper Limited should be certified and proceed to a trial. We did not appeal the lower court’s decision to leave the Province of Newfoundland and Labrador out of the action.

At this time, the Court of Appeal’s decision is under reserve. We will provide a further update when the decision is available.

Meanwhile, please do not hesitate to contact us if you have any questions by phoning us or emailing us at [email protected].

The first major step in a class action is to be certified as a class action. Only when a class action is certified may it then proceed to a trial of the certified common issues. The certification hearing was held on May 26-27, 2021 in the Supreme Court of Newfoundland and Labrador in Corner Brook. Justice Peter Browne released his certification decision on September 20, 2021, in which he declined to certify the class action.

We have filed an appeal of the certification decision. The Plaintiff must first be granted leave to appeal (i.e., permission to appeal the decision). The appeal will be heard on January 16, 2024.

Please see the Documents section to view the Amended Notice of Application for Leave to Appeal and the Amended Notice of Appeal for more details.

We are continuing to prepare for the Appeal and will provide further updates as they become available. Meanwhile, please do not hesitate to contact us if you have any questions by phoning us or emailing us at [email protected].

The first major step in a class action is to be certified as a class action by a judge. Only once a class action is certified may it then proceed to a trial of the certified common issues. The certification hearing was held on May 26-27, 2021 in the Supreme Court of Newfoundland and Labrador in Corner Brook.

Justice Peter Browne released his certification decision on September 20, 2021, in which he declined to certify the class action on the basis of two grounds.

First, Justice Browne determined that there was no reasonable prospect of success at trial against the Town of Deer Lake or the Province of Newfoundland and Labrador, citing case law that limits the liability in negligence of government authorities for decisions that may be characterized as policy decisions.

Second, Justice Browne determined that a class action would not be the preferable procedure against the remaining defendant, Corner Brook Pulp and Paper Limited, as he concluded that a significant number of individual issues would remain to be decided after a common issues trial and as a result, a Class Action would not be the preferable procedure to represent the interests of the class.

Wagners, together with co-counsel Bob Buckingham, have filed an appeal of the certification decision and will be arguing to overturn the certification decision before the Court of Appeal of Newfoundland and Labrador. The Plaintiff must first be granted leave to appeal (i.e. permission to appeal the decision). The Plaintiff’s proposed grounds for the Appeal are, in sum:

  1. That the Application Judge erred in law by ordering the claim does not disclose a reasonable cause of action against the Town of Deer Lake;
  2. That the Application Judge erred in law and fact by concluding that a class action was not the preferable procedure as against Corner Brook Pulp and Paper Limited.

Please see the Documents section to view the Amended Notice for Leave to Appeal and the Amended Notice of Appeal for more details.

We are continuing to prepare for the Appeal and will provide further updates as they become available. Meanwhile, please do not hesitate to contact us if you have any questions by phoning us or emailing us at [email protected].

The first major step in a class action is to be certified as a class action by a judge. This involves a court hearing. Only if a class action is certified may it proceed to a trial of the action. This hearing was held on May 26-27, 2021 in the Supreme Court of Newfoundland and Labrador in Corner Brook.  

The judge reserved his decision. We’ll inform you of the outcome once we are notified.   

We have recently sent a questionnaire to those who are in our database. We ask that you please complete it and return it to us. If you’re aware of anyone who may be within the class boundary and interested in the class action but has not previously contacted us, they are welcome to contact us and complete the questionnaire as well.  

Meanwhile, please do not hesitate to contact us if you have any questions by phoning us or emailing us at [email protected]. 

As we have explained before, the first major step in a class action is to be certified as a class action by a judge. This involves a court hearing. Only if a class action is certified may it proceed to a trial of the action.

All parties have now exchanged their preliminary materials related to the application to obtain certification of the lawsuit as a class action. Cross-examinations on the affidavits and the exchanging of legal briefs are still required and we are in discussions with counsel for the defendants to develop a schedule for these events.

Unfortunately, as a result of the impact of the COVID-19 measures, we were advised by the Supreme Court of Newfoundland and Labrador that the hearing of the certification application that had been scheduled for November 2-4, 2020 would need to be rescheduled.

All parties participated in a Case Management Conference on July 15, 2020 before the Honourable Laura Mennie, Case Management Judge. The hearing of the application for certification will now proceed on May 26 to 28, 2021 in the Supreme Court of Newfoundland and Labrador in Corner Brook.

We will provide further updates on the status of the action as the case progresses.

We also thank those of you who have completed your intake form. If you have yet to do so, please take a moment to complete it and return it to us, as it assists in maintaining an up to date list of class members.

Meanwhile, please do not hesitate to contact us if you have any questions by phoning us or emailing us at [email protected].

The Plaintiffs have had to respond to two preliminary motions brought by the Defendants. The more recent motion was successfully appealed by the Plaintiffs.

On March 19, 2019, the Court of Appeal of Newfoundland and Labrador released its decision in the Deer Lake Canal class action.

The decision confirmed that the plaintiffs have the right to pursue a class action against the Corner Brook Pulp and Paper Company.

The appeal court’s decision, Dewey v. Corner Brook Pulp and Paper Limited, 2019 NLCA 14, is available for viewing in PDF format.

The Plaintiffs can now move ahead with their application to certify the action. The Plaintiffs’ motion for certification will be heard on November 2 to 4, 2020 in the Supreme Court of Newfoundland and Labrador in Corner Brook, NL.