Case information

Civil procedure — Class actions — Certification — Claim alleging sounding of train whistles amounting to private nuisance — Court of Appeal finding statement of claim does not plead a reasonable cause of action and setting aside certification order — Whether guidance is required respecting interpretation of federal statutory scheme regulating interprovincial rail transport, and use and cessation of train whistles — Whether guidance is required respecting interplay between federal statutory scheme regulating interprovincial rail transport and the common law — Whether authority arising from statutory scheme, without any supporting evidence, affords CN a complete defence to a cause of action in nuisance — Whether guidance is required respecting whether statutory authority defence ought to be considered under cause of action branch of certification test — Whether consideration of statutory authority defence impermissibly injects a merits analysis into certification stage — Class Proceedings Act, S.A. 2003, c. C-16.5 — Railway Safety Act, R.S.C. 1985, c. 32.<br>

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The applicant, Mr. Klassen, brought an application for certification of a class action, on behalf of a class of persons, based in nuisance, alleging that the respondent, Canadian National Railway Company (“CN”) continued the use of train whistles at specific crossings in Parkland County notwithstanding steps taken by the County to require CN to cease the ongoing operation of whistles at the crossings.

The case management judge heard and granted an application to certify the action as a class proceeding.

The Court of Appeal allowed the appeal and set aside the certification order.