Common Issues in Environmental Class Actions

Earlier this year, we wrote about the arrival of climate change class actions in Canada. Last week, the BC Court of Appeal highlighted the difficulty of establishing commonality in a more traditional environmental class action: Kirk v. Executive Flight Centre Fuel Services Ltd., 2019 BCCA 111. Kirk highlights the limited common issues that are typically certified in environmental class actions. While the Court of Appeal upheld the certification of some common issues, it remitted the issue of preferability to the chambers judge; leaving open the possibility that Kirk may not be certified at all.

Kirk arose after fuel spilled into two BC rivers. Local residents were ordered to evacuate and not use the water. The plaintiff sought to certify a class action on behalf of all persons who owned, leased, rented, or occupied property within the evacuation zone on the date of the spill. The plaintiff claimed property damage, loss of use and enjoyment of property, and diminution of property value. He brought claims in negligence, nuisance, and the rule in Rylands v. Fletcher.

On those claims, the court upheld common issues considering whether (i) the defendants owed and breached duties of care and (ii) caused the spill or the issuance of the evacuation or water advisory orders.

In contrast, the court overturned the certification of issues that considered whether the defendants caused harm to class members or their properties because those issues would require individual trials. As an exception, the court asked the chambers judge to reconsider whether the evacuation or water advisory orders could, on their own, be used to certify common issues dealing with loss of use or quiet enjoyment. The court suggested that those orders might establish a common experience capable of common resolution.

The largest challenge was to a common issue asking whether the spill caused properties within the evacuation zone to diminish in value and by how much. The plaintiff relied on affidavits from himself and other class member, provincial property assessments, and an expert report proposing a methodology for a mass appraisal.

The court held that all of that evidence was insufficient. The affidavits merely expressed a belief that property values had diminished. The assessments did not explain an inconsistent diminution. The expert report was flawed. The methodology it proposed assumed that the spill caused any diminution in value without providing a means to test that hypothesis. The proposed methodology also required individual evidence. As a result, the court overturned the chambers judge’s certification of the issues dealing with diminution of value.

Similarly, the court overturned the certification of issues dealing with punitive damages. The court found that there was no basis in fact for a claim of punitive damages because the pleadings and the evidence did not identify any conduct that could be characterized as a marked departure from the ordinary standards of decision behaviour.

Finally, the court upheld (with some modification) questions dealing with the apportionment of any liability for the spill among the defendants.

As a result of the significant reduction in the number and nature of the certified common issues, the court remitted the issue preferability to the chambers judge for reconsideration. Regardless of the outcome of that reconsideration, Kirk is in indicator of the difficulty of certifying common issues in traditional environmental class actions.

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