A BC Supreme Court judge has delivered a blow to a trio of Smithers-area landowners' attempt to sue CN for allegedly failing to prevent flooding that damaged their property.
The plaintiffs, Sheldon Lee Reed, Susan Jeanne Tew, and Christopher Raymond Reed, are seeking an injunction requiring CN to keep a culvert clear to prevent flooding of their property and sought access to certain internal CN documents they say are critical to their case.
In a recent ruling, Madam Justice Sandra Sukstorf deferred the injunction request and denied the landowners' demand for documents.
The plaintiffs own an 84.6-acre off-grid property near Smithers, which they purchased in November 2021.
They commenced action against Canadian National Railway Company (CN) following a flood of their property on May 8, 2023, which they allege was caused by CN鈥檚 failure to maintain a culvert of its railway line between Witset and New Hazelton.
A stream known as the Beament Stream flows through the property and into the Bulkley River. Upstream of the property, the Beament Stream flows through a culvert under the railway line located at or near Mile 29.87 and operated by CN. CN maintains approximately 150 culverts along this segment of track and is responsible for thousands across the province.
CN states it is required to inspect each culvert along this line annually, in accordance with its internal regulations. It asserts that all inspection and maintenance obligations relating to the culvert were met at all material times.
The plaintiffs allege that the culvert had been obstructed resulting in a substantial buildup of water upstream. They assert that CN retained a contractor to address the blockage in the culvert who was allegedly at the culvert clearing the obstruction on the day of the flood. They allege that On May 8, 2023, the accumulated water at the culvert was released abruptly and without warning. The sudden surge overwhelmed the Beament Stream, causing it to breach its banks, flood the plaintiffs鈥� property, and permanently alter the course and size of the stream channel.
The plaintiffs assert that the culvert had been obstructed for approximately six months prior to May 8, 2023, and they contend that the flooding was caused by CN鈥檚 failure to control or manage the release of water, and to provide any advance warning of the planned effort to clear the obstruction. They allege that the force and volume of the water significantly widened the stream and caused lasting changes to the natural watercourse on their land.
In April 2024, a second obstruction was identified at the same culvert. The plaintiffs allege that signs of water buildup were visible as early as October 2023, and that CN failed to act or inform them of a potential risk. CN disputes this account asserting it was aware of the issue and as of March 31, 2024, had scheduled remediation and resolved the obstruction by April 10, 2024, before any damage occurred.
The landowners allege extensive property damage, with repair costs estimated at $255,150, excluding loss of personal property, and also claim psychological harm resulting from the event.
CN denies liability and attributes the flooding to natural causes beyond its control, including rapid snowmelt and beaver activity on upstream private land. CN maintains it conducted regular inspections and responded appropriately.
The plaintiffs argued for CN to disclose certain documents and requested an injunction requiring CN to keep the culvert clear of debris and to implement regular inspection and maintenance protocols. The Court reserved its decision on that second issue pending the outcome of the parties鈥� efforts to reach a negotiated resolution.
The plaintiffs contend CN has improperly withheld documents critical to assessing liability for the May 2023 flood and the April 2024 obstruction. They argue CN has applied litigation privilege too broadly and that meaningful adjudication of their claims requires access to these records.
However, Justice Sukstorf said in summary that she found CN has met its burden, on a document-by-document basis, to establish that each of the contested documents is protected by litigation privilege, solicitor-client privilege, legal advice privilege, or a combination thereof.
She also said that if negotiations fail, she will remain the judge of record to preside over the injunction application.
She also noted that, in light of the parties鈥� ongoing collaborative efforts to resolve the plaintiffs鈥� request for a mandatory injunction, the issue of costs is deferred until the final disposition of the plaintiffs鈥� claims. The parties may seek directions on costs, if necessary, following the resolution of all outstanding matters.
