Last year BLG's Environmental Law Cross-Country Check-Up
discussed the Ontario Court of Appeal decision in Smith v.
Inco, which dismissed the plaintiff's class action.
Inco dealt with historic nickel contamination in the soils
of Port Colborne over decades of smelting. During the past year,
the class unsuccessfully sought leave to appeal the decision to the
Supreme Court of Canada.
Inco was the first common law environmental class
action trial in Canada. Ultimately, the class was unable to satisfy
the Court of Appeal it had suffered "actual, substantial and
physical harm". Chemical alteration of the soil was not viewed
as compensable damage. Indeed, a $1.7 million costs award has been
granted against the Class Proceedings Fund as a result of the
action's failure. Moving forward, stigma claims will be much
more difficult to win.
Environmental class claims are complex, costly and not for the
faint of heart. Personal injury cases in particular are difficult
to handle as class claims. However, remediation or monitoring
claims might possibly be certified as a common issue – if no
such program already exists.
Here are some trends to watch out for:
Personal injury cases are not generally appropriate for class
action (e.g., the Agent Orange health claims were denied
class certification in Newfoundland and Labrador and in New
Impact: If there are significant personal injuries from an
environmental incident, it is usually more efficient to group the
individual claims into a single statement of claim. U.S. case law
is also moving away from environmental personal injury class
certifications following the U.S. Supreme Court decision in
Duke v. Walmart that looks at predominance of individual
issues as a key feature pointing against certification.
Regulatory action may be a "preferable procedure"
precluding a class action.
Impact: Good regulatory action may be preferable to a class action
in terms of practically resolving the class issues. And if the
regulator is not acting, the omission might be grounds to sue the
regulator: Taylor v Canada.
Courts are taking a much harder look at expert evidence on
class certification motions.
Impact: Pseudo-experts or biased pundits on environmental issues
are no longer tolerated. The U.S. Daubert decision
continues to have an impact in Canada re "junk
Exemplary behaviour is a key to avoiding class
Impact: Good behaviour affects the court's preferable procedure
analysis. The court will look favourably upon a company which has
published and put into effect an environmental code of conduct;
considered the timeliness and clarity of external communications;
and has a pre-existing process to handle and compensate small
Poor post-incident behaviour may become the main cause of
Impact: One purpose of class actions is to dissuade future bad
behaviour. Any perception of cover-up, even if it does not exist,
dramatically increases the likelihood of class certification and
even possibly of punitive damages.
BLG is Canada's leader in class action defence. We are
defending in excess of 150 class actions and have several class
actions pending at Supreme Court of Canada on appeal or leave to
appeal applications. BLG has been counsel on many of Canada's
leading contested class action decisions in 2012.
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
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