When an indeterminate class is proposed for certification,
does the motions judge have to redefine that class for the
representative? In Mawhood v. Aéroports de
Montréal, the Québec Court of Appeal found
that no such obligation exists. It is the petitioner's
responsibility to identify an ascertainable group of plaintiffs
according to the relevant facts. Although a judge may choose to
limit the scope of a class, this is a discretionary decision
that should only be made under the appropriate
Mawhood, a noise pollution case, involved a class
action brought against the airports of Montréal on
behalf of persons who allegedly suffered damages because of
airplanes flying overhead or motoring on the tarmac. The class
purported to include residents living throughout the city's
greater metropolitan area, including neighbourhoods with a
comparatively small amount of air traffic. The class action was
dismissed in first instance because of the absence of
geographic specificity and the subjective nature of nuisance,
which can only be assessed on an individual basis.
In appeal, Justice Pelletier, speaking for the majority,
explained that when petitioners inflate a class in order to
exercise pressure on defendants, they are taking a strategic
risk that could backfire. Here, the claim was for the
impressive sum of $183 million, the dice were thrown
accordingly and the representative lost. The judge of first
instance correctly found that the common issues were drowned in
a sea of individual considerations.
Pelletier J. went on to state that although courts should
not be unnecessarily harsh towards petitioners —
particularly in environmental cases — they should not
be indulgent either. Commenting on the reasoning of the Supreme
Court in Western Canadian Shopping Centres v.
DuttonandHollick v. City of Toronto, he
noted that a class definition should never be circular or so
expansive as to be unintelligible. While a court can redefine a
class, it is not called upon to create one on its own
McCarthy Tétrault Notes:
Like Lallier v. Volkswagen Canada
Inc., another recent Court of Appeal decision,
Mawhood states that the onus is on the petitioner, not
the judge, to put forward a class that is clearly defined. The
case also suggests that, in instances where individual
questions qualitatively outweigh common questions, dismissal
may well be a more appropriate approach than mere
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