In Kirk v Executive Flight Centre Fuel Services Ltd., the B.C. Supreme Court certified a class action by local residents who were impacted by a truck accident that caused a spill of Jet A1 fuel in the Slocan Valley in the Kootenay region of B.C. On April 5, 2019, the B.C. Court of Appeal set aside the certification order and remitted the matter to the chambers judge to reconsider the common issues of negligence, nuisance, the rule in Rylands v Fletcher, and apportionment of liability. In doing so, the Court of Appeal affirmed the types of individual causation and damages issues that should not be certified as common issues in environmental class actions.
A truck accident caused approximately 35,000 litres of fuel to spill into the Lemon Creek and from there into the Slocan and Kootenay Rivers. The truck was transporting fuel for helicopters that were being used by the Province of B.C. to fight a wildfire in the Slocan Valley. Following the spill, local residents were evacuated and ordered not to use the water.
The representative plaintiff sought to certify a class action on behalf of all persons who owned, leased, rented or occupied real property on the date of the spill within the evacuation zone. The proposed class action claimed property damage, loss of use of property, interference with the quiet enjoyment of property and the diminution of the market value of properties within the evacuation zone. The defendants included the driver of the truck (Mr. LaSante), the company that employed him (Executive Flight Centre Fuel Services Ltd.), the company that was engaged to provide helicopter services to the Province (Transwest Helicopters Ltd.), and the Province (in its capacity as represented by the Minister of Transportation and Infrastructure and the Minister of Forests, Lands and Natural Resource Operations).
The chambers judge certified the action in negligence, nuisance and on the basis of the rule in Rylands v. Fletcher.
The Court of Appeal decision
The defendants appealed the certification order, challenging every aspect of the certification analysis. They argued, among other things, that the chambers judge erred in certifying the common issues on the basis that they did not satisfy the requirements of section 4(1)(c) of the Class Proceedings Act.
The Court of Appeal allowed the appeal on the commonality issue, notwithstanding its acknowledgement that a deferential standard of review applied to the decision below. Specifically, the Court of Appeal found that the chambers judge erred by certifying several common issues that involved an element of specific causation and that would require an assessment of damage to individual properties.
The Court of Appeal was particularly critical of the chamber judge’s decision to certify a common issue regarding the alleged diminution of property value in the evacuation zone, as the chambers judge failed to perform the necessary inquiry into whether the representative plaintiff had met the “some basis in fact” requirement (which we have previously discussed on this blog here and here). After conducting its own analysis, the Court of Appeal concluded that the representative plaintiff failed to provide: (i) a basis in fact to support the assertion that there had been a class-wide diminution of value; (ii) a basis in fact for the common issue that a plausible methodology existed that was capable of establishing that the spill caused a class-wide diminution in value, and for measuring that diminution; and, (iii) some evidence of the availability of the data to which the methodology was to be applied. The Court of Appeal concluded that the chambers judge erred in certifying the common issue in the absence of such a methodology and evidentiary basis to the claim.
Nonetheless, the Court of Appeal noted that some of the impugned common issues could properly have been certified had their scope been narrowed to focus on the issues that really were common to the class. Accordingly, the Court of Appeal either: (i) struck the common issues and remitted them back to the chambers judge for reconsideration; (ii) struck the common issues without remitting them; or, (iii) amended the common issues.
The appeal decision in Kirk seeks to ensure that common issues are precisely and carefully drafted to exclude individual causation or damages issues. In addition, while the evidentiary bar remains low at the certification stage, Kirk demonstrates that there will be some circumstances in which a representative plaintiff fails to meet that bar.
However, Kirk also demonstrates that the courts may be willing to amend or reconsider certain issues that could be restated or narrowed to focus on issues that are in fact common to the class. Accordingly, even in cases where a representative plaintiff has drafted its common issues poorly and in an overly broad manner, the courts may nonetheless find a way for those issues to get past the certification stage.