Environmental
An environmental claim will be certified if it can be kept manageable and is sufficiently precise. It is clear environmental cases are appropriate class proceedings, especially in the case of sudden or precisely identifiable spills or contamination.
The courts, however, have not looked favourably upon more complicated environmental claims. In Hollick v. The City of Toronto, the Supreme Court of Canada agreed with the Court of Appeal for Ontario and the Divisional Court that an environmental claim should not be certified. The Supreme Court of Canada decision is reported at (2001), 205 D.L.R. (4th) 19, and the Court of Appeal for Ontario decision at (1999), 46 O.R. (3d) 257. In Hollick some 30,000 persons claimed damages with respect to the emission of noxious odours from a landfill site in Maple, Ontario.
The Supreme Court confirmed that there was no common issue that could be manageably tried or which would advance the litigation. The problem was that all 30,000 individuals would have to establish the manner and degree to which each had been affected by the alleged nuisance. What appeared superficially to be a common issue of liability was insufficient to warrant a class proceeding because each individual would have to be considered separately, having regard to their particular evidence. Chief Justice McLachlan stated:
“Some class members are close to the site some are further away. Some class members are close to other possible sources of pollution. Once the common issue is seen in the context of the entire claim, it becomes difficult to say that the resolution of the common issue will significantly advance the action.” (Paragraph 32)
The Court of Appeal for Ontario has confirmed that the Ontario courts will certify more narrowly defined environmental class actions. In Pearson v. Inco Limited et al. the Court of Appeal, on November 18, 2005 (Docket C42414) reversed the Divisional Court and Justice Nordheimer, who had refused to certify the initial action. It must be emphasized, however, that the proposed class action had been substantially narrowed by the time it reached the Court of Appeal.
This case involves alleged nickel contamination by Inco in Port Colborne. The initial case included claims for damages from alleged adverse health effects. In the Court of Appeal, however, the claim was restricted to damages for the devaluation of real property values arising from soil contamination.
As Justice Rosenberg stated (paragraph 70):
“As the claim was originally framed in this case, a class proceeding would also not have the advantage of judicial economy. The individual claims of injury to health and related claims would dwarf the resolution of the common issues. With the narrowing of the claim that is no longer the case. The claim now concerns the single issue of reduction in property values. Inco argues, however, that even the resolution of this claim will require individual assessments since property values are highly idiosyncratic. But, that submission fails to meet the fundamental point of the appellant’s claim. The appellant has staked his claim on the propositions that public knowledge of nickel contamination in the Port Colborne area has had a detectable impact on property values in that area and that as the source of the contamination, Inco must pay damages to owners whose property values have fallen. As the appellant put the issue in para. 22 of his factum, ‘what has been ‘overlaid’ on each property’s value is a decline associated with the announcement of high levels of contamination’. The appellant may or may not be able to demonstrate these propositions, but they constitute a substantial element of each class member’s claim. If the appellant is able to demonstrate this effect, the only individual issue remaining will be for each class member to show the amount of the effect on his or her property. If the appellant is unable to demonstrate this connection, it would be open to the trial judge to certify the action pursuant to s. 10 of the CP.”