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Court File No. CV-12-9949-00CL

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Court File No. CV-12-9949-00CL Court File No. CV-12-9949-00CL ONTARIO SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST) BETWEEN : IAN SANSOM, ROBERT LUKAS, JOHN MCNAB and ED DORR, the proposed representatives of all terminated employees and retirees of Shaw Canada L.P. under Rule 10 of the Rules of Civil Procedure Plaintiffs - and - SHAW CANADA L.P., THE SHAW GROUP INC., STONE AND WEBSTER CANADA HOLDING ONE (N.S.) ULC, STONE AND WEBSTER CANADA HOLDING TWO, INC., STONE AND WEBSTER HOLDING ONE, INC., STONE AND WEBSTER HOLDING TWO, INC., J.M. BERNHARD, JR., JAMES GLASS, HARVEY VIGNEAULT, THOS E. CAPPS, JAMES F. BARKER, DANIEL A. HOFFLER, ALBERT D. MCALISTER, DAVID W. HOYLE, STEVE ALLISON, CRAIG PIERCE, and MICHAEL J. MANCUSO Defendants BOOK OF AUTHORITIES OF THE PLAINTIFFS (Motion for Certification and Approval of Settlement returnable October 9, 2013) KOSKIE MINSKY LLP 20 Queen Street West, Suite 900 Toronto ON M5H 3R3 Andrew J. Hatnay LSUC#: 31885W Email: [email protected] Tel: 416-595-2083 Fax: 416-204-2827 Jonathan Bida LSUC#: 54211D Tel: 416-595-2072 Fax: 416-204-2907 James Harnum LSUC#: 31371C Email: [email protected] Tel: 416-542-6285 Fax: 416-204-2819 Counsel to the Plaintiffs TO: DUFF & PHELPS CANADA RESTRUCTURING INC. the trustee in bankruptcy of Shaw Canada L.P. Bay Adelaide Centre 333 bay Street, 14th floor Toronto, ON M5H 2R2 Bobby Kofman Telephone: 416-932-6228 Fax: 416-932-6200 Email: [email protected] David Sieradzki Telephone: 416-932-6030 Fax: 416-932-6200 Email: [email protected] AND TO: TORYS LLP TD Centre, P.O. Box 270 79 Wellington Street West, Suite 3000 Toronto, ON M5K 1N2 David Bish Telephone: 416-865-7353 Fax: 416-865-7380 Email: [email protected] Adam Slavens Telephone: 416-865-7333 Fax: 416-865-7380 Email: [email protected] Lawyers for Duff & Phelps Canada Restructuring Inc., the trustee in bankruptcy of Shaw Canada L.P., Stone and Webster Canada Holding One (N.S.) ULC, Stone and Webster Canada Holding Two, Inc. AND TO: OSLER, HOSKIN & HARCOURT LLP 1 First Canadian Place, P.O. Box 50 Toronto, ON M5X 1B8 Laura Fric Telephone: 416-862-5899 Fax: 416-862-6666 Email: [email protected] Marc Wasserman Telephone: 416-862-4908 Fax: 416-862-6666 Email: [email protected] Lawyers for The Shaw Group Inc., Shaw Energy and Chemicals Inc., Shaw Environmental Inc., Shaw Overseas (Far East) Ltd., Stone & Webster Inc., Stone and Webster Holding One, Inc., Stone and Webster Holding Two, Inc., Field Services Inc., and Chicago Bridge and Iron AND TO: PRICEWATERHOUSECOOPERS INC. 1 Robert Speck Parkway, Suite 1100 Mississauga, ON L4Z 3M3 Sharon Carew Telephone: 905-949-7375 Fax: 905-949-7447 Email: [email protected] Administrator of Shaw Canada Pension Plan TABLE OF CONTENTS TAB DESCRIPTION 1A. Bellefeuille v. Canadian Pacific Railway, 2010 ONSC 5499 1B. Bellefeuille v. Canadian Pacific Railway, 2011 ONSC 2648 2. Zaniewicz v. Zugnhui Haixi Corp., 2013 ONSC 2959 3. Gariepy v. Shell Oil Co., [2002] O.J. No. 4022 (S.C.J.) 4. Sa’d v. The Remington Group Inc., 2013 ONSC 1404 5. Isaacs v. Nortel Networks Corp., [2001] O.J. No. 4851 (S.C.J.) 6. Chapman v. Benefits Plan Administrators, 2013 ONSC 3318 7. National Trust Co. v. Smallhorn, [2007] O.J. No. 3825 (S.C.J.) 8. Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.) 9. McKenna v. Gammon Gold Inc., 2010 ONSC 1591 10. Hollick v. City of Toronto, [2001] 3 S.C.R. 158 11. Fulawka v. Bank of Nova Scotia, 2012 ONCA 443 12. McCarthy v. Canadian Red Cross Society [2001] O.J. No. 2474 (S.C.J.) 13. Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.J. No. 2811 (Gen. Div.) 14. Brimner v. Via Rail Canada Inc. et al. (2000), 50 O.R. (3d) 114 (S.C.J.) 15. Zaniewicz v. Zungui Haixi Corp., 2013 ONSC 5490 16. Serhan (Trustee of) v. Johnson & Johnson, 2011 ONSC 128 17. MacKinnon v. Ontario Municipal Employees Retirement Board, 2012 ONSC 4450 Page 1 2010 CarswellOnt 10758, 2010 ONSC 5499, 201 A.C.W.S. (3d) 936 2010 CarswellOnt 10758, 2010 ONSC 5499, 201 A.C.W.S. (3d) 936 Bellefeuille v. Canadian Pacific Railway James Bellefeuille and Liliane Bellefeuille, Plaintiffs and Canadian Pacific Railway Limited and Canadian pa- cific Railway Company, Defendants Ontario Superior Court of Justice Patricia Hennessy J. Heard: April 12, 2010 Judgment: November 5, 2010 Docket: C-8347/04 © Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights re- served. Proceedings: additional reasons at Bellefeuille v. Canadian Pacific Railway (2011), 2011 ONSC 188, 2011 CarswellOnt 986 (Ont. S.C.J.); andrefused leave to appeal Bellefeuille v. Canadian Pacific Railway (2011), 2011 ONSC 2648, 2011 CarswellOnt 2832 (Ont. Div. Ct.) Counsel: Kathleen Erin Cullin, for Plaintiffs Stephen F. Rosenhek, Rosalind H. Cooper, for Defendants Subject: Civil Practice and Procedure; Environmental; Public Civil practice and procedure --- Parties — Representative or class proceedings under class proceedings legisla- tion — Conduct of class proceeding — Application of rules of practice and procedure Civil practice and procedure --- Limitation of actions — Principles — Practice and procedure — Pleadings — Amending writ or pleadings Environmental law --- Liability for environmental harm — Practice and procedure — Class proceedings Civil practice and procedure --- Parties — Representative or class proceedings under class proceedings legisla- tion — Jurisdiction Jurisdiction to amend pleadings under R. 26.01 of Rules of Civil Procedure to convert individual action into class proceeding — Plaintiffs owned property near defendant railway's property and used water treatment and distribution system built by railway in 1943 — Diesel spills contaminated soil on railway land and surrounding property — In 2000, railway announced decision to decommission water treatment system, and advised that © 2013 Thomson Reuters. No Claim to Orig. Govt. Works Page 2 2010 CarswellOnt 10758, 2010 ONSC 5499, 201 A.C.W.S. (3d) 936 some property owners would be without source of potable water due to diesel spills affecting groundwater — Plaintiffs and 54 others brought individual actions in respect of separate pieces of land, claiming damages for environmental contamination against railway — Plaintiffs brought motion for leave to amend and convert action to class proceeding — Motion granted — Court had jurisdiction to grant amendment sought — Section 35 of Class Proceedings Act, 1992 (CPA) states that rules of court apply to class proceedings — Rule 26.01 states that court shall grant leave to amend pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or adjournment — Court may allow plaintiffs to amend pleadings to bring class proceeding where, on threshold analysis, purposes of class proceeding will be fulfilled by such amendment — On threshold analysis, present claim appeared to have essential elements of class action, being more than one person having claim for damages arising from environmental contamination and its sequelae — Proposed claim was made by geographically defined group of property owners and occupiers allegedly affected by defendants' acts — Plaintiffs claimed same causal link between damages and company's alleged conduct. Civil practice and procedure --- Pleadings — Amendment — Miscellaneous Plaintiffs owned property near defendant railway's property and used water treatment and distribution system built by railway in 1943 — Diesel fuel spills on railway property contaminated soil on railway land and sur- rounding property — In 2000, railway announced decision to decommission its water treatment and distribution system, and advised that some property owners would be without source of potable water due to diesel spills af- fecting groundwater — In 2004 and 2005, plaintiffs and 54 others brought individual actions in respect of separ- ate pieces of land, claiming damages for environmental contamination against railway — In 2008, plaintiffs brought motion to amend statement of claim to convert action to class proceeding, and sought substantive amendments to define defining classes, re-framing claim to include allegation that railway's announcement in 2000 and act of ceasing to deliver water to properties adversely affected public confidence in water supply and caused class members to suffer diminution of property values — Motion granted — Amendment granted to title action proceeding under Class Proceedings Act, 1992 (CPA) — Proceeding with fifty-five actions outside of CPA when it remained available to plaintiffs, against same defendants for same damages arising from same set of facts, did not make legal or common sense — Substantive amendments sought by plaintiffs would be dealt with in certification process, which would necessarily review pleadings within statutory context absent on mo- tion to amend in regular action — No amendment made at present stage was definitive, as definition of class was live issue on certification motion — For purposes of having statement of claim to begin certification process, proposed amendment to add paragraphs defining proposed classes and representative plaintiffs allowed — Amendment also allowed to incorporate paragraphs dealing with claim for diminished property values flowing from announcement and actions of defendants in 2000 — Court's final framing of common issues would be made on basis of complete record, which record was not before court on present motion to amend. Cases considered by Patricia Hennessy J.: Boulanger v. Johnson & Johnson Corp. (2003), 2003 CarswellOnt 1405, 32 C.P.C. (5th) 203, 226 D.L.R. (4th) 747, 170 O.A.C. 333, 64 O.R. (3d) 208 (Ont. Div. Ct.) — considered Cloud v. Canada (Attorney General) (2004), 2004 CarswellOnt 5026, 73 O.R. (3d) 401, 192 O.A.C. 239, 27 C.C.L.T. (3d) 50, [2005] 1 C.N.L.R. 8, 2 C.P.C. (6th) 199, 247 D.L.R. (4th) 667 (Ont. C.A.) — considered Dorus v. Teck Corp. (2005), 2005 BCSC 886, 2005 CarswellBC 1436 (B.C. S.C.
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