BC Court of Appeal Confirms Need for Individual Assessments Despite Test Case
We previously wrote about a BC “test case” used to quantify the damages owing to three class members after a common issues trial. At the time, the trial judge expected that the claims of the remaining class members would be resolved in accordance with the principles used to quantify damages owing to the three class members.
BC’s court of appeal overturned the test case judgment in Gautam v. South Coast British Columbia Transportation Authority, 2020 BCCA 135. While the court of appeal did not foreclose the test case approach, it found that the trial judge erred by not addressing issues specific to each class member. The result is that test cases may be feasible in some class actions, but do not eliminate individual burdens of proof.
The case arises from the construction of the Canada Line, a subway line underneath Cambie Street in Vancouver. A class of property owners and business operators on Cambie Street alleged that they suffered loss because construction of the Canada Line limited access to their premises. They brought claims against the entities that built the Canada Line.
Ultimately, the only successful claim in the trial court was for injurious affection, a statutory cause of action under BC’s Expropriation Act. Proving injurious affection required the plaintiffs to prove (among other things) that construction of the Canada Line both substantially and unreasonably interfered with their use and enjoyment of their properties. The trial judge found that the interference was substantial for all class members at an earlier common issues trial, but found that the (un)reasonableness of the interference could not be resolved in common. Nor did the judge address the (un)reasonableness of the interference on a plaintiff-by-plaintiff basis during the test case.
The court of appeal set aside the test judgment on that basis—a majority concluded the trial judge erred by not conducting individual assessments of the reasonableness of the interference for each plaintiff during the test case.
The majority also concluded that the trial judge erred in calculating the (i) limitation period and (ii) methodology used to calculate the damages payable to each class member. On the former issue, the court of appeal confirmed that where a plaintiff alleges an ongoing tort, they can recover only damages suffered within the limitation period. As the claim for injurious affection had a one-year limitation period, the plaintiffs could recover damages only for the year prior to the day they advanced their injurious affection claim.