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 circumstances.

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. Dutton and Hollick 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 initiative.

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 redefinition.