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CIVIL PROCEDURE - Class or representative actions - Certification

Monday, August 12, 2019 @ 10:40 AM  


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Application by the plaintiff for certification of the action as a class action. The proposed class consisted of persons who suffered damage when their properties were impacted by flooding in May 2017 of the Churchill River. The plaintiff sued the defendants Nalcor and the Province in nuisance and negligence. Nalcor constructed a hydroelectric generating facility on the Lower Churchill River. The plaintiff claimed that both defendants were liable for the damage caused by the tort of nuisance.

HELD: Application allowed. On the facts pleaded, it was not plain and obvious that a claim in private nuisance would fail. The Statement of Claim met the requirement of pleading for negligence in its assertions against Nalcor. The Statement of Claim established the elements of the tort of negligence against the Province. The plaintiff established some basis in fact to suggest that resolution of questions respecting liability and causation in negligence were necessary to the determination of each class member's claim and that joint and several liability to the Class was a question that must be resolved for each class member's claim. Whether the flood substantively interfered with the use and enjoyment of the properties qualified as a common issue. It could not be said that the individual issues would predominate over common issues. The principle of judicial economy strongly supported a class action proceeding as the preferable procedure.

Chiasson v. Nalcor Energy, [2019] N.J. No. 218, Newfoundland and Labrador Supreme Court - General Division, G.D. Butler J., July 11, 2019. Digest No. TLD-August12019001