On February 15, 2017, the B.C. Court of Appeal issued its decision in Baker v. Rendle (Baker) denying class action certification in a case about nuisance claims against industrial operations. Baker lends further weight to the view that private claims by landowners for environmental nuisance are ill suited for resolution by class action.
The defendants obtained a composting facility licence to import and compost post-consumer food waste on a property in a suburb of Victoria, B.C. Complaints relating to “nuisance odours” from the composting activities began not long after operations started and increased in frequency over time. The composting facility licence was ultimately surrendered.
The plaintiff, Raymond Baker, began a lawsuit against the owner-operators alleging private nuisance. In September 2015, the plaintiff sought certification of the claim as a class action. The B.C. Supreme Court denied the class certification because the claim did not meet certain requirements for certification under the Class Proceedings Act, namely: the class members’ claims did not raise common issues, a class proceeding was not the preferable procedure for the resolution of the common issues and Mr. Baker was found not to be an appropriate representative plaintiff. The plaintiff appealed.
CLASS PROCEEDINGS FOR PRIVATE NUISANCE
To establish private nuisance, a plaintiff must prove interference with his or her use or enjoyment of land that is both substantial and unreasonable. The interference must be intolerable to an ordinary person, which is assessed by the nature, severity and duration of the interference, the neighbourhood’s character, the sensitivity of the plaintiff’s use and the utility of the activity. The court focuses on the harm suffered by the plaintiff and not the defendant’s conduct.
In Baker, the B.C. Court of Appeal held that assessing liability for the tort of nuisance involves subjective considerations specific to each of the proposed class members. In this case, the question of whether the effect of the composting odours on the individual class members was a substantial, unreasonable interference with the use and enjoyment of their land could not be determined on a class-wide basis. Whether the operation resulted in a nuisance could only be determined by examining the particular circumstances of each neighbour. The B.C. Court of Appeal therefore concluded that a class proceeding was not the preferable procedure for adjudicating the nuisance claims and dismissed the appeal.
Baker joins a line of cases that have made it difficult for plaintiffs to pursue private nuisance claims through class actions. These decisions include a B.C. Court of Appeal decision in which certification of private nuisance claims failed the class action certification test (see our January 2016 Blakes Bulletin: Court Limits Liability for Nuisance, Expands Injurious Affection Claims for Public Infrastructure Projects), as well as one judgment each from Ontario and from Alberta (see our October 2011 Blakes Bulletin: Court Overturns C$36-Million Damages Award in Environmental Class Action and our April 2014 Blakes Bulletin: Alberta Court of Appeal Uses Class Action to Broaden Summary Judgment and Narrow Strict Liability). As a result, operations with widespread environmental impacts may be less likely to face collective actions for redress by property owners. Whether this will result in less litigation overall, more individual lawsuits for private nuisance, or a renewed focus on public nuisance claims by governments or regulatory bodies, remains to be seen.