Executive Summary: Key Legal and Evidentiary Issues

• Justice Hollins found that no legal presumption favors hearing certification before other motions.
   
• Four discrete issues were selected for hearing prior to certification: collateral attack, recoverability of economic losses, limitation periods, and exclusionary clauses.
   
• Delay by the plaintiffs in advancing certification was treated as a minor factor.
   
• Negligence, causation, and duty-of-care questions were considered too fact-intensive for pre-certification resolution.
   
• ATCO's broader duty-of-care arguments were characterized as alternative framings of the collateral-attack issue.
   
• The court applied the sequencing factors from Jean Coutu to balance fairness against efficiency.
   

Facts of the case

The plaintiffs are residents and businesses of the Town of Jasper seeking damages from ATCO Ltd., ATCO Energy Ltd., and ATCO Electric Ltd. arising from an interruption of electrical power following a 2022 wildfire. Patricia Urie is the representative plaintiff in the proposed class action, which has not yet been certified. The plaintiffs' claims are primarily in negligence, alleging that ATCO breached its duty of care by failing to properly design, construct, and operate the Interconnection Project — a single-circuit line built to deliver power to Jasper — and by failing to properly assess and mitigate the risk of forest fires. ATCO applied for summary dismissal of the claims and sought to have that application heard before certification, arguing it could narrow or dispose of the entire action. The plaintiffs opposed hearing any part of the summary dismissal application before certification, though they agreed several of the issues raised could properly be heard alongside the certification motion. ATCO then brought this sequencing application to determine the order in which the matters should proceed.

Policy and legislative provisions at issue

The certification test under section 5(1)(a) of the Class Proceedings Act, SA 2003, c C-16.5, concerning whether a cause of action exists, was central to assessing overlap between certification and the proposed pre-certification motions. ATCO also relied on the Electric Utilities Act, SA 2003, c E-5.1, and its regulations, along with contractual exclusions, to argue that certain claims were excluded. The Limitations Act, RSA 2000, c L-12, was raised as a defence to bar portions of the plaintiffs' claims. In addressing sequencing generally, the court drew on the considerations set out in British Columbia v The Jean Coutu Group (PJC) Inc, 2021 BCCA 219, and on the approach to sequencing described in Stewart v Enterprise Universal Inc, 2010 ABQB 259.

Reasoning and analysis

Justice Hollins rejected the plaintiffs' position that a rebuttable presumption exists favoring certification first, agreeing with ATCO that no such presumption remains following Jean Coutu. Drawing on the Jean Coutu factors, the court considered past delay, the risk of unfair delay to certification, the potential for pre-certification motions to narrow the issues, and the risk of unnecessary costs. Delay to date was found to be only a nominal factor, given that the plaintiffs' certification application and supporting affidavit had been filed and ATCO's summary dismissal motion was ready to proceed. The court then examined overlap between the certification test and the six grounds raised in ATCO's summary dismissal application. It agreed with the plaintiffs that negligence, causation, and duty of care generally were unsuited to preliminary determination, since they would require extensive and potentially conflicting evidence. However, the court agreed with ATCO that the issues of collateral attack, recoverability of pure economic loss, limitation periods, and interpretation of exclusionary clauses were primarily legal in nature and could be resolved without extensive contested evidence, while meaningfully narrowing the scope of the litigation. ATCO's separate arguments on the existence and scope of its duty of care were treated as alternative iterations of the collateral attack argument, better addressed by defining ATCO's duty in the design and construction of the Interconnection Project rather than as a standalone issue.

Ruling and overall outcome

Justice Hollins ordered that four issues be scheduled for hearing before the certification motion: the defence of collateral attack, limited to defining what duty, if any, ATCO Electric had in the design and construction of the Interconnection Project (without yet addressing whether that duty was breached); the recoverability of pure economic losses; the applicable limitation periods; and the interpretation of the exclusionary clauses. All other issues, including breach, causation, and the propriety of naming ATCO Ltd. and ATCO Energy Ltd. as defendants, were left to be addressed at or after certification. ATCO, as the applicant on the sequencing motion, succeeded in having these four issues heard in advance of certification. The decision did not address costs or damages, and no monetary amount was ordered or awarded.