Canada: Quebec Court Of Appeal Affirms The Relevance Of Class Actions In Environmental Law

In a recent ruling in Carrier c. Québec (Procureur général), the Quebec Court of Appeal affirmed the relevance of the class action procedure in matters relating to environmental law.

In a ruling1 handed down on July 4, 2011 overturning the judgment of May 17, 2010 by the Honourable Justice Gilles Blanchet of the Superior Court, Quebec's highest court authorized a class action to be brought against the Attorney General of Quebec representing the Minister of Transport, whom a group of residents living alongside a major highway in the Quebec City area consider responsible for a community noise phenomenon of which they claim to be victims.

The facts

These proceedings have to do with the potential liability of the Minister of Transport in his capacity as manager of a major highway, who the law provides is to exercise all the rights of an owner in respect of such highway and assume the related obligations. The road in question was built in 1963. A problem with the associated traffic noise seems to have existed since 1985, the time of the first citizens' petition calling for measures to be taken to mitigate the noise. The petitioners contend that the noise infringes the rights of some 497 property dwellers, who claim that its level exceeds that of a normal neighbourhood annoyance. The motion alleges that the residents are subjected to noise levels greater than or equal to 55 dBA in some cases, and greater than or equal to 65 dBA in others.

The many citizens' petitions and complaints lodged with the municipality and the Transport Ministry did not result in a resolution of the problem.

The judgment a quo

In essence, Justice Blanchet was of the opinion that the petitioners' proceedings did not meet the standard of article 1003 (b) of the Code of Civil Procedure because, in his view, the State enjoyed immunity based on the rule applicable to so-called "policy" decisions. Regarding the other conditions for bringing a class action, Justice Blanchet considered that the proceedings in this case met those other conditions.

The reasons of the Court of Appeal

In its reasons, written by Justice Guy Gagnon and concurred in by Justices François Doyon and Julie Dutil, the Court of Appeal takes the position that the argument based on State immunity is an argument that a defendant must plead on the merits and that cannot be raised as a ground for ruling a class action inadmissible at the authorization stage. The Court goes on to stress the difference between the rules for judicial review of the legality of decisions taken by the State and the rules applicable to the State's civil liability, which are the rules set out in the Civil Code of Québec. Accordingly, it will be up to the defendant, at trial, to assert and prove that a defence based on principles of public law can shield him from liability in a civil suit of the type that the petitioners wish to bring in this case.

Justice Gagnon notes that article 1003 (b) requires only that the facts alleged in the motion appear to justify the conclusions sought. In particular, he mentions that the nuisances complained of by the petitioners could potentially give rise to strict liability, pursuant to article 976 of the Civil Code, and possibly even to liability with fault, pursuant to article 1457 of the Civil Code, arising, among other things, from the infringement of certain rights recognized by the lawmaker, including the right to environmental quality recognized by section 19.1 of the Environment Quality Act, as well as the right to peaceful enjoyment of one's property and the right to live in a healthful environment, which latter rights are recognized in sections 6 and 46.1 of the Charter of human rights and freedoms. An allegation that these rights have been infringed can suffice to establish the colour of right required at the authorization stage.

Justice Gagnon also sets aside the defendant's claim to immunity from the conclusions relating to the injunction sought by the petitioners, based on articles 94.2 and 100 of the Code of Civil Procedure. In this regard, Justice Gagnon is of the view that injunctive relief against the State is available in situations where infringement of the law or a right protected by the Charter of human rights and freedoms needs to be redressed.

Regarding the requirement that identical, similar or related questions of law or fact be raised by the members' recourses, set out in article 1003 (a), the Court of Appeal endorses Justice Blanchet's assessment, pointing out that the motion raises some questions which, in essence, are common to the group members. As for the composition of group, the Court of Appeal considers that the number of persons included in the group will depend on the evidence adduced and the standard that the judge who will hear the case on the merits will use to differentiate between "normal" neighbourhood annoyances and those that would be considered "abnormal" . Justice Gagnon notes that the judge who will hear the case on the merits has all the discretion necessary to define the group that is to benefit from any judgment, and moreover, that the law makes provision for the processing of individual claims.

In conclusion, the Court of Appeal has affirmed that in Quebec, the class action can be an appropriate vehicle for seeking civil redress in matters that relate to environmental protection.


1 2011 QCCA 1231.

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