Alberta Court of Appeal rules 2 to 1 against Imperial Oil appeal in pipeline contamination case

The Alberta Court of Appeal has dismissed the appeal by Imperial Oil of an award of damages to a rancher for injury to her cattle caused by leaking oil.  One of the three appellate judges, however, wrote a dissenting opinion that would have found Imperial Oil not liable for the damages alleged.  Agnes Ball, the rancher involved, leased grazing land from the Alberta government in the "School Section", and alleged that during Imperial's clean up of an oil leak from its pipeline, Imperial negligently allowed her cattle to ingest hydrocarbons.  The ingestion resulted in premature calving and loss of calves.  Ball had been away on vacation at the time of the leak and the trial judge found that, although Imperial attempted to communicate with Ball through her daughter, Imperial did not ask for permission to enter on the land (outside of its easement) or advise her of the type of work required or its urgency.

At trial, the Alberta Court of Queen's Bench judge found that Imperial Oil had a duty to give adequate prior notice of its intended repair work and to “adequately protect the Plaintiff’s livestock from exposure to Hydrocarbons and hydrocarbon contaminated soil and water”, (reasons at para. 116). He went on to find Imperial Oil had breached that duty by failing to give adequate notice of the repair work and by “pouring contaminated water on the ground and leaving contaminated soil unfenced”, (para. 116). He also found that Imperial Oil allowed the escape of a noxious substance and, thereby, created a nuisance. In light of these findings, he found it unnecessary to deal with the claim in trespass; nor did the parties make any submission on the appeal with respect to this alleged cause of action.

Two of the three Court of Appeal judges hearing the case rejected all of the grounds of appeal advanced by Imperial.  One judge, however, found that:

the trial judge committed an error of law in determining that the respondent was only required to prove some “exposure” to risk by the cattle. The respondent had to prove consumption of contaminated soil and water of sufficient quantities and toxicity to cause injuries on a balance of probabilities. The trial judge used the wrong legal test for causation. As a result, he failed to make the findings of fact needed to apply the correct “but for” test. The reasons at trial do not contain findings of fact on some of the key topics that are needed to resolve the causation issue. The only alternative available is to allow the appeal, and direct a new trial.

It remains to be seen whether Imperial will seek leave to appeal this decision to the Supreme Court of Canada.

Read the Court of Appeal decision at: Ball v. Imperial Oil Resources Limited.

Read the trial decision at: Ball v. Imperial - Court of Queen's Bench.