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.

On February 4th at the Ontario Bar Association Institute Program on Environmental Law – Managing New Environmental Quagmires – Perspectives from the Litigation, Regulatory and Transactional Contexts – Osler’s Jennifer Fairfax, an environmental litigator, will be discussing the reasons behind the dearth of successful environmental class actions in common law Canada.

Class Action Regimes Not Necessarily Appropriate for Environmental Harms

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 class-wide basis.

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 and Windsor 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 Success

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 contamination.

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.