In 2001, at the time of the Supreme Court's decision in Western Canadian Shopping Centres Inc. v.
Dutton, the future looked bright for environmental class
action plaintiffs. In Dutton, McLachlin C.J.C. praised the
access to justice afforded by class actions legislation and
intimated that environmental claims ought to provide a solid
foundation for a class action. Now, nearly 15 years later, the
outlook is somewhat different, with, so far, only one example of an
environmental class action decided on its merits in the common law
provinces, and no successful environmental class actions (putting
aside settlements) to speak of in common law Canada.
Class Action Regimes Not Necessarily Appropriate for
Recent forays into the Canadian class action experience shed
light on the reasons for this lack of success, reinforcing that it
can be extremely difficult to certify an environmental class
action, due to the myriad of issues involved in environmental
contamination cases and the complexity of the available
environmental causes of action themselves. And, even if certified,
plaintiffs have ultimately failed to prove their claim on a
Two appellate decisions, released in 2014 by the Nova Scotia
Court of Appeal and the Alberta Court of Appeal, respectively, have
confirmed that class action regimes are not necessarily appropriate
for environmental harms: MacQueen v. Sydney Steel Corp andWindsor v. Canadian Pacific Railway
Ltd. demonstrate the lack of success environmental causes
of action have experienced in the class action context and
reinforce the challenges involved.
Nuances of Environmental Causes of Action can be a Bar to
Specifically, certain environmental causes of action make the
common issue bar to certification more difficult to overcome. As
the Court of Appeal in MacQueen stressed, proof of
nuisance, for example, turns on the framing of liability as an
individual issue. Unlike a claim in negligence where liability can,
in certain circumstances, be determined on an individual basis
after a finding of negligence on the part of the defendant, a
plaintiff can only establish that a nuisance occurred by proving
that the properties at issue were damaged or interfered with in an
unreasonable and substantial way: in this sense, liability becomes
an individual issue.
The court in Paron v. Alberta (Minister of Environmental
Protection) succinctly explained the inherent difficulties
with a claim of nuisance in the class action framework as follows:
"nuisance cases are problematic for certification of a common
issue because liability is dependent on the impact of the nuisance
on each individual and his or her property. Consequently, the
result of a trial for any one claimant cannot generally stand as
proof of the cause of action for any other claimant."
That is not to say that the common issue requirement can be
easily satisfied in environmental claims based on negligence,
particularly those involving historical contamination. A class of
plaintiffs with claims relating to historical contamination may be
hard pressed to surpass the certification hurdle given that the
duty and standard of care likely continued to change throughout the
period at issue. As explained in a
previous blog post, in MacQueen, it was this issue
that precluded the claim of negligence from passing the common
issue hurdle: defendants can use the reality of continuously
changing environmental standards and practices to mount a strong
defence against certification in cases involving historical
After Certification, Still No Success on Merits
Of course, should an environmental class action survive the
certification stage, the plaintiff still needs to win on the merits
of the claim. To date, none have succeeded in common law Canada.
The various quandaries common to environmental claims have
contributed to this lack of success, including the difficulties in
demonstrating causation, proving actual harm or damage to property
(necessitating technical expert evidence), and addressing the
continuously changing standards of care over the many years of a
continuing polluting event.
A copy of Jennifer's paper, submitted for the Institute
program, which analyzes the lack of success by environmental class
actions in the common law provinces, is available on request.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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