A BC Supreme Court judge has decided that Canadian National Railway Co. documents must withhold more than two dozen documents from three landowners suing for property damage.
Sheldon Lee Reed, Susan Jeanne Tew and Christopher Raymond Reed bought an 84.6-acre, off-grid property near Smithers in November 2021. They allege floods in May 2023 and April 2024 were caused by an obstructed culvert between Witset and New Hazelton that the railway failed to maintain.
The Reeds and Tew claim repair costs of $255,150, excluding loss of personal property, and accused CN of trespass, nuisance, negligence and gross negligence. Defendants also include Skeena Rail Services Ltd. and White Spruce Enterprises (1981) Ltd.
“CN denies liability and attributes the flooding to natural causes beyond its control, including rapid snowmelt and beaver activity on upstream private land,” said Justice Sandra Sukstorf in a May 14 judgment. “CN maintains that it conducted regular inspections and responded appropriately.”
Sukstorf’s decision said there are ongoing negotiations about the plaintiffs’ application for an injunction, so the decision only addressed whether certain documents should be disclosed.
Sukstorf found CN met its burden, on a document-by-document basis, to establish documents were protected “by litigation privilege, solicitor-client privilege, legal advice privilege, or a combination thereof.”
“The application for a mandatory injunction remains in abeyance pending the parties’ negotiation of a preventative maintenance protocol,” Sukstorf said.
