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CIVIL PROCEDURE - Parties - Class or representative actions - Certification

Monday, September 28, 2020 @ 9:30 AM  

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Application by the Province and Nalcor Energy for leave to appeal a decision certifying the action against them as a class proceeding. The action claimed damages for negligence and nuisance against the applicants arising out of a flooding that occurred at a community downstream from a hydroelectric dam being constructed by Nalcor. The Province argued that no cause of action was disclosed against it, that the claims in negligence, nuisance and joint liability did not give rise to common issues and that a class action was not the preferable procedure. Nalcor argued that the statement of claim did not plead a claim under nuisance and that a class action was not appropriate.

HELD: Application allowed. The Province was granted leave to appeal whether a cause of action was disclosed against it. Nalcor was granted leave to appeal whether a cause of action was disclosed against it based on the application of the law and legal principles to the facts as pleaded. The applications judge applied a too low threshold in determining that the pleadings disclosed a cause of action against the Province. The judge did not turn her attention to the submissions of the Province that additional underlying legal issues were engaged which might alter the assessment of certain of the common issues, or, at a minimum, affect the way the issues were stated. It would be desirable from the perspective of judicial efficiency and cost effectiveness to eliminate or reduce to the extent possible the requirement for pretrial procedures and for adjusting the nature and scope of the action on a continuing basis.

Newfoundland and Labrador v. Chiasson, [2020] N.J. No. 258, Newfoundland and Labrador Court of Appeal, D.E. Fry C.J.N.L., B.G. Welsh and W.H. Goodridge JJ.A., August 24, 2020. Digest No. TLD-September282020001