In Carvery v. Halifax (City), the Supreme Court of Nova Scotia denied certification of a proposed class action on the basis that there was not an identifiable class of two or more persons and that the proposed common liability issue was overly broad.
In 1996, former residents of Africville (a community founded by Black Nova Scotians in the early 1800s) and their descendants started a class action seeking compensation for having been wrongfully expropriated and relocated in the 1960s. A settlement was reached in 2010 and the descendants of those who had been evicted received compensation. While the action of the majority of the plaintiffs was dismissed as part of the settlement, there were some divisions between the plaintiffs and the action was allowed to continue in a substantially restructured form.
The plaintiff in the restructured action sought compensation for "communal lands" used by Africville residents for schools, stores, farms and fishing operations and over which he alleged they had a property interest that the City of Halifax took away without compensation.
The court found that the claim disclosed a reasonable cause of action. While the exact legal basis for the existence of an interest in Africville's communal lands was unclear, the court accepted that the acquisition of land interests by use or possession was known in law and that is was not plain and obvious that the plaintiffs' claim would not succeed.
However, the judge found there was not an identifiable class of two or more persons. The plaintiff proposed the following class definition:
"all former residents and the estates of deceased former residents of Africville who held property interests in the communal lands of Africville and had those property interests taken by the City of Halifax and who have not otherwise disposed of their property interests before November 26, 1969, were removed from the physical community of Africville between 1962 and 1970 and who have not signed releases to this Action or had their claims otherwise dismissed or discontinued."
The judge found significant problems with the proposed class description. Africville was not an incorporated entity with defined boundaries and there was no stated objective criteria to determine: (i) who qualified as a resident of Africville for the purpose of the claim; (ii) who was "removed" from Africville; and (iii) who had a "property interest" in Africville's communal lands. For example, the judge wondered whether a tenant of an expropriated landowner who was required to move at the instance of the landowner was "removed" from Africville or whether a child residing in Africville could have held a "property interest".
The plaintiff also failed to demonstrate that there was some basis in fact to show there was a second class member who fell within his description of the class.
The court also denied certification because the claim did not raise a common issue with respect to whether the City was liable to class members for failing to follow the proper expropriation procedures. The City could only be liable to those persons who fell within the meaning of an "owner" as defined in the relevant expropriation legislation. And while the definition was broad enough to include "persons having the charge or control of any land", the determination of whether a person was an "owner" in communal lands would require individual determination. As such, the court found the action would inevitably break down into individual trials and that the issue of liability could not be resolved in common.
More and more class actions seeking redress for historical wrongs are being certified by Canadian courts. The decision in Carvery v. Halifax (City) shows the courts will deny certification to proposed class actions that are not properly framed and designed to achieve the goals of class proceedings.