Between 1911 and 1917, predecessor to power company built dam at outlet of lake and acquired licences of occupation to raise level of lake for parts of shoreline. New shoreline was referred to as contour line. Cottage owners who owned property surrounding lake commenced class proceeding against power company alleging shoreline was eroded because company or predecessors raised level of water in lake. Owners alleged company was trespassing on land by storing water on owners’ property. Common issue was certified on whether encroachment of water past contour line constituted trespass. After certification decision, parties retained surveyors to obtain evidence of legal descriptions and boundaries of owners’ lands surrounding lake, and to prepare expert reports. Company claimed new evidence showed properties around lake were acquired by hydro company and there was unopened road allowance around lake which was not included in owners’ boundary line. Company brought motion to decertify class action. Motion granted. Issue raised by owners was whether company was responsible in trespass for raising water level of lake, causing erosion to occur such that water was now stored on some owners’ lands. To decide that issue required evidence from each individual owner to determine legal boundaries of property purchased, and to determine whether water covered part of owner’s property. Common issue as certified and presently defined did not meet criteria of s. 5(1) of Class Proceedings Act.
Plaunt v. Renfrew Power Generation Inc. (2017), 2017 CarswellOnt 4237, 2017 ONSC 1868, Robert Smith J. (Ont. S.C.J.).