Focus On

CIVIL PROCEDURE - Class or representative actions - Certification

Tuesday, May 07, 2019 @ 8:34 AM  

Lexis Advance® Quicklaw®
Appeal by the defendants from the certification of the action as a class proceeding. The respondent sued for damages resulting from a spill of helicopter fuel from a tanker truck into a creek and connected waterways. Because of the spill, the surrounding area was evacuated, and residents were ordered not to drink the water. The respondent alleged claims in negligence, nuisance, and under the rule in Rylands v. Fletcher. Damages were sought for physical damage to property as a result of contamination, loss of use and enjoyment of property because of the evacuation and contamination and for diminution of market value because of market stigma due to contamination. The chambers judge certified the action in negligence based on Rylands v. Fletcher and in nuisance.

HELD: Appeal allowed in part. The judge certified several common issues that did in fact involve an element of specific causation and would require an assessment of damage to individual properties. Several of the common issues regarding negligence, nuisance, Rylands v. Fletcher and apportionment of liability fell within this category and were remitted to the chambers judge to reconsider. The common issues regarding diminution of property value and punitive damages were not remitted for reconsideration as the respondent failed to put forward a basis in fact to support them. The chambers judge did not err in certifying the proposed class and leaving the refinement of the class, or the creation of subclasses, to be worked out post-certification. The description of the Evacuation Zone was sufficiently clear to permit individuals to know if they were in the class. In certifying the negligence issues, the judge erred in certifying the issue of whether the defendants, or any of them, did breach their owed duty, and whether this breach caused the class members to suffer harm, because it was a question of specific causation. With respect to nuisance, the judge erred in certifying an issue requiring an individual assessment of the subjective impact of the evacuation or the consequences of the acts or omissions of the appellants on class members to determine whether they suffered a loss of use and enjoyment of their properties. The issues would inevitably break down into individual proceedings. The first three elements of the rule in Rylands v. Fletcher could properly be certified as common issues. The fourth element, however, required individual assessment of damages. The chambers judge erred in certifying the question as it was written. Had the question been framed to address the elements of the test up to, but not including, the element of damage, it could have been certified as a common issue. The judge erred in certifying diminution of property value as a common issue. Assessing diminution in the market value of property was inherently an individual exercise, given that no two properties were exactly alike. The respondent failed to demonstrate that there was any diminution in property values, or that a credible methodology existed that was more than theoretical and could prove that the spill caused a common impact on property values. The judge erred in certifying the common issue in the absence of such a methodology and evidentiary basis to the claim. Apportionment of liability for the spill, including the determination of whether the appellants were jointly and severally liable, was an appropriate common issue.

Kirk v. Executive Flight Centre Fuel Services Ltd., [2019] B.C.J. No. 551, British Columbia Court of Appeal, N.J. Garson, B. Fisher and S.A. Griffin JJ.A., April 5, 2019. Digest No. TLD-May62019006