DATE:19991215
DOCKET: C31728 and C32103
COURT OF APPEAL FOR ONTARIO
CARTHY, GOUDGE AND FELDMAN JJ.A.
BETWEEN: )
) Michael McGowan and
JOHN HOLLICK ) Kirk M. Baert
Plaintiff ) for the appellant
(Applicant) )
)
and ) Graham Rempe and
) Kalli Y. Chapman
THE CITY OF TORONTO ) for the respondent
)
Defendant ) Mark M. Orkin, Q.C.
(Respondent) ) For the Law Foundation
) of Ontario
)
) Heard: October 14, 1999
On appeal from the order of the Divisional Court (O’Leary, Flinn
and Sedgwick JJ.) dated December 17, 1998.
CARTHY J.A.:
[1] This appeal concerns the proposed certification of a class
action on behalf of 30,000 persons seeking damages and an
injunction largely related to noxious odours said to be emanating
from a waste disposal site in Maple, Ontario.
[2] Section 5(1) of the Class Proceeding Act, 1992, S.O. 1992,
c. 6 reads:
5.-(1) The court shall certify a class
proceeding on a motion under s.2, 3 or 4 if,
(a) the pleadings or the notice of
application discloses a cause of action;
(b) there is an identifiable class
of two or more persons that would be
represented by the representative
plaintiff or defendant;
(c) the claims of defences of the class
members raise common issues;
(d) a class proceeding would be
the preferable procedure for the
resolution of the common issues; and
(e) there is a representative
plaintiff or defendant who,
(i) would fairly and adequately
represent the interests of the class,
(ii) has produced a plan for
the proceeding that sets out a
workable method of advancing the
proceeding on behalf of the class
and of notifying class members of
the proceeding, and
(iii) does not have, on
the common issues for the class, an
interest in conflict with the
interests of other class members.
[3] The plaintiff appellant’s position is that he has pleaded a
valid cause of action, has identified a class with a common issue
of liability for the alleged nuisance, and that the court should
not look behind the statement of claim at the merits of the
action at the certification stage. The respondent’s position is
that there is no commonality in the issues and that, if
certified, the action would become unmanageable as it breaks down
into questions of cause and effect related to individual
claimants.
[4] The motions judge, Jenkins J., certified the action as
presented except for the claim of an injunction which could, in
his view, be more appropriately obtained by an application to set
aside the Certificate of Approval or to seek cancellation of the
licence of the waste disposal site.
[5] Leave was granted to appeal to the Divisional Court. That
court set side the certification order without prejudice to the
plaintiff’s right to bring a fresh application on further
evidence. Leave was then granted to appeal to this Court.
Factual Background
[6] I will do as O’Leary J. did in the Divisional Court reasons
and simply quote the recitation of facts set out in the reasons
of the motions judge:
The defendant operates an approved landfill
site known as the Keele Valley Landfill Site
(here and after referred to as Keele Valley). The
defendant has a responsibility for the disposal
of waste generated within its boundaries as well as
municipal waste from the Regional Municipality of
York, and its area municipalities, and the Regional
Municipality of Durham. It is also required to
accept waste from other areas on an emergency
basis.
The plaintiff claims that since at least
February 3, 1991, by reason of the operation
of the Keele Valley, the defendant has
wrongfully caused, or failed to permit, or
permitted, the landfill to emit:
(a) large quantities of methane,
hydrogen sulphide, vinyl chloride and other
toxic gases, obnoxious odours, fumes, smoke
and airborne, bird-borne or air-blown
sediment, particulates, dirt and litter
(collectively referred to as “Physical
Pollution”); and
(b) loud noises and strong vibrations
(collectively referred to as “Noise
Pollution”);
onto the lands and premises in the
geographical boundaries claimed. The
plaintiffs claim that they have
sustained physical and emotional damages
as a causal consequence.
……..
FACTUAL BACKGROUND
The plaintiff’s motion is supported by
the affidavits of John Hollick sworn on
November 28, 1997 and January 14, 1998. He
was cross-examined on January 26 and 27,
1998. The defendant did not file a statement
of defence but filed an affidavit of Angelos
Bacopoulos sworn on December 31, 1997. He was
cross-examined on his affidavit on January
27, 1998.
These affidavits disclose that the Keele
Valley site was originally an enormous gravel
pit known as Maple Pits. An approval process
was carried out from 1976 to 1980, including
an 80 day hearing before the Environmental
Assessment Board (July 1976 to November 1977)
and a further 28 day hearing before the
Environmental Appeal Board (November 1978 to
June 1980). A Certificate of Approval (C.A.)
was thereafter issued to private owners. The
defendant purchased the site in 1983. The
Ministry of the Environment issued a new C.A.
governing the operation of Keele Valley.
The C.A. provides that only non-
hazardous municipal or commercial waste be
received at Keele Valley. It does not
authorize the receipt of residential sewage
sludge. The C.A. covers an area of 375.9
hectares (928.5 acres) of which 99.2 hectares
(245 acres) is the actual disposal area. The
remaining lands provide for a buffer area of
over 650 acres.
The C.A. provides for a staged
construction plan, purge wells, a clay liner,
monitoring wells, a leachate collection and
discharge system, a gas collection system and
a bypass road for the use of refuse trucks.
The C.A. also provides for a small claims
trust fund in the total amount of $100,000
which was established by the defendant prior
to the commencement of operations at Keele
Valley, to deal with claims arising from
offsite impact to a maximum of $5,000 for
each claim. The fund is administered by the
Ministry of the Environment. Awards from the
fund are to be made on a no-fault basis. To
date, no claims have been made against this
fund by any person or corporation.
GAS COLLECTION
Keele Valley operates a highly
sophisticated landfill gas extraction plan
which removes gases from the site. The gas is
used to generate electricity at the Eastern
Power Limited, a privately owned facility
located on the site.
As a result of its landfill gas
extraction initiatives, the defendant has
been commended to the United Nations as a
world leader in the reduction of greenhouse
gases.
The C.A. provides that the final
contours of Keele Valley, once the landfill
is completed, should be designed to
approximate the land configuration as it
existed before sand and gravel extraction
commenced in the former Maple Pits. The area
surrounding Keele Valley contains a number of
industries including an active quarry, a
private transfer station for waste, various
recycling related activities, a plastics
factory, an asphalt plant, private compost
operations and farms.
On numerous occasions, local residents
have complained about the manner in which the
local planning authority of the City of
Vaughan, permitted development in and around
Keele Valley; for example, in permitting a
large residential subdivision and school to
be built on a by-pass road that was
specifically constructed to keep truck
traffic away from populated areas. This
development was permitted by the Ontario
Municipal Board after a two-month long
hearing.
SUPERVISION OF ACTIVITIES AT KEELE
VALLEY
The Ministry of the Environment oversees
operations at Keele Valley through the C.A.
and by maintaining two full-time inspectors
at the site, and through ongoing review of
detailed reports that the defendant provides
to the Ministry on all aspects of site
operations.
Any potential violations of the C.A. or
other applicable statutory provisions
governing the operations of Keele Valley may
be investigated and prosecuted by the
Ministry of the Environment pursuant to the
provisions of the Environmental Protection
Act.
Various administrative tribunals
including the Ontario Municipal Board and the
Environmental Assessment Board have also
reviewed the operations of Keele Valley
during the operation of the site. The
operations at Keele Valley have been found to
be satisfactory and Keele Valley has been
permitted to continue to operate.
On one occasion, the defendant was
charged by the Ministry of the Environment in
relation to the composting of grass clippings
at the Avondale composting facility which is
located north of the Keele Valley landfill
site. Grass composting was required under the
recycling regulations of the Province of
Ontario and has proved to be problematic.
Ultimately, the defendant stopped receiving
grass clippings collected by its area
municipalities and thereafter the complaints
relating to odour from the composting of
grass stopped. The defendant made a joint
submission with the Ministry of the
Environment resulting in a $16,000 fine and a
pilot program to assist the Ministry of the
Environment in addressing the minimization of
odour problems associated with the recycling
of grass clippings.
The City of Vaughan has also established
a committee known as the Keele Valley Liaison
Committee whose purpose is to address
community concerns related to the site. Prior
to 1998, staff of the defendant have attended
and participated regularly at these meetings.
In addition, a telephone complaint system has
been set up by the defendant. The complaints
received are investigated. There were a total
of 150 complaints concerning Keele Valley
since 1991 which were investigated and
documented by the defendant.
[7] It was pointed out to us that the 150 complaints were to the
City and that the number is close to 500 if those to the
provincial ministry are included. It is not known how many
complainants made these complaints.
[8] The essence of the reasoning of the Divisional Court can be
taken from these excerpts from the reasons of O’Leary J.:
[16] In my view the evidence does not make
it likely that those 30,000 persons suffered
such interference. …
[17] … What is needed to satisfy
s.5(1)(b) is evidence from which the motions
court judge can conclude that all members
included in the class likely have a cause of
action against Toronto for interference with
their use and enjoyment of their property.
[19] Because the class that was
certified – the 30,000 people who occupied
land in a 16 square mile area – bears no
resemblance to any group that was on the
evidence likely injured by the landfill
operation, there are no apparent common
issues relating to the members of the class.
[9] The appellant complains that the Divisional Court violated
the well-established principle that the merits of the action are
not to be examined on the certification motion. As stated by
Moldaver J. in Abdool v. Anaheim Management Ltd. (1995), 21 O.R.
(3d) 453 (Gen. Div.) at 469, “all allegations of fact [in the
pleadings], unless patently ridiculous or incapable of proof,
must be accepted as proved.” The appellant refers us to the
excerpts from the reasons of O’Leary J., quoted above, and, in
particular, his references to the evidence not supporting the
likelihood that the members of the class suffered interference in
the enjoyment of property, as going beyond what the legislation
permits. The appellant says the court should not be concerned as
to whether an action of this nature should, as a matter of
policy, be certified; the sole issue is whether the statement of
claim reveals facts which, if proved, satisfy the criteria in s.
5(1) of the Act.
[10] It is certainly well established that the pleadings must be
taken at face value to determine if a cause of action is
disclosed under s.5(1)(a). However, the Divisional Court
specifically refers to s.5(1)(b) and appears to be searching for
evidence that a class exists. In doing so it turns its attention
to the likely merits of the claims of members of the class. The
class should not be defined in terms of the merits of the
individual claims. However, the question remains whether the
ascertainment of the existence of a class can include some
consideration of the merits and whether the court can look beyond
the statement of claim to make that assessment.
[11] As stated, when the court is considering s.5(1)(b) it is not
appropriate to define that class in terms that depend upon the
merits; e.g., those who have suffered injury. In Bywater v.
Toronto Transit Commission (1998), 27 C.P.C. (4th) 172 (Gen.
Div.) dealing with a fire that occurred in a subway tunnel which
forms part of the TTC subway system, Winkler J. gives a very
clear explanation of this problem at paragraphs 10 and 11.
The purpose of the class definition is
threefold: a) it identifies those persons who have
a potential claim for relief against the defendant;
b) it defines the parameters of the lawsuit so as
to identify those persons who are bound by its
result; and lastly, c) it describes who is entitled
to notice pursuant to the Act. Thus for the mutual
benefit of the plaintiff and the defendant the class
definition ought not to be unduly narrow nor unduly
broad.
In the instant proceeding the
identities of many of the passengers who
would come within the class definition are
not presently known. This does not constitute
a defect in the class definition. In Anderson
v. Wilson (1998), 37 O.R. (3d) 235 (Ont. Div.
Ct.), Campbell J. adopted the words of the
Ontario Law Reform Commission and stated at
248:
…a class definition that would enable
the court to determine whether any person
coming forward was or was not a class member
would seem to be sufficient.
On this point, Newberg on Class
Actions (3d ed. Looseleaf) (West
Publishing) states at 6-61:
Care should be taken to define the class
in objective terms capable of membership
ascertainment when appropriate, without
regard to the merits of the claim or the
seeking of particular relief. Such a
definition in terms of objective
characteristics of class members avoids
problems of circular definitions which depend
on the outcome of the litigation on the
merits before class members may be
ascertained…
The Manual for Complex Litigation,
Third (1995, West Publishing) states at
217:
Class definition is of critical
importance because it identifies the persons
(1) entitled to relief, (2) bound by a final
judgment, and (3) entitled to notice in a
[class] action. It is therefore necessary to
arrive at a definition that is precise,
objective, and presently ascertainable …
Definitions … should avoid criteria that are
subjective (e.g. a plaintiff’s state of mind)
or that depend upon the merits (e.g., persons
who were discriminated against). Such
definitions frustrate efforts to identify
class members, contravene the policy against
considering the merits of a claim in deciding
whether to certify a class, and create
potential problems of manageability.
The defendant urges, in the
alternative, that the class definition
should include a reference to damages
resulting from smoke inhalation. This
requirement, if adopted, would run
contrary to the tenets set out above. It
would unduly narrow the class and it
anticipates entitlement. Moreover, it
would eliminate persons with strictly
property damage claims. The reference to
damages impinges on the merits of the
claim and, thus, goes beyond the purpose
of class definition. The definition
proposed by the plaintiff is approved
with the deletion of words “and toxic
gases”.
[12] This leaves open the question of whether the merits may be
considered in any respect under s.5(1)(b). I see no error in
looking beyond the pleadings and to the evidence presented to
assist in the application of the criteria set forth in
ss.5(1)(b), (c) and (d). If it were otherwise any statement of
claim alleging the existence of an identifiable group of people
would foreclose further consideration by the court. Similarly,
the mere allegation that the class action is the preferable
procedure would prevent the court from making its own assessment
of the evidence under s.5(1)(d).
[13] On the other hand, it would be wrong to test the existence
of a class by looking for evidence that the members of the
proposed group have, individually, a claim on the merits. The
Divisional Court may have overstepped that line in the excerpts
quoted above, but reading the reasons as a whole, I think O’Leary
J. was expressing his concern about a perceived lack of reality
to any proposed linkage between the plaintiff’s claim and the
class which is defined as 30,000 persons in a large geographic
area.
[14] In circumstances such as are described in the statement of
claim one would expect to see evidence of the existence of a body
of persons seeking recourse for their complaints, such as, a
history of “town meetings”, demands, claims against the no fault
fund, applications to amend the Certificate of Approval, and, in
general, evidence to give some credence to the allegation that,
in the words of s.5(1)(b) “there is an identifiable class …”.
There was evidence of complaints over an extended period of time
from a sizeable geographic area, but the Divisional Court seemed
to be dubious that this was sufficient evidence of a class.
[15] In most instances, such as disasters or defective autos,
evidence to assist in the identification of a class will be
unnecessary, its identity being self-evident. In Bywater for
instance, the certified class was defined as “all persons … who
were exposed to smoke and toxic gases in TTC vehicles or on TTC
premises …” In the instant case the existence of a class with
claims for damages that the members wish to assert is more
problematic and, if that was the concern of the Divisional Court,
rather than the merits of the claims, then I would not disagree
with their inquiry and concern under s.5(1)(b). In the end,
s.5(1)(b) requires that the judge be satisfied from the statement
of claim or, if necessary, from the evidence as well, that there
is some credence to the allegation that there is an identifiable
class.
[16] That being said, I take a different approach than the
Divisional Court by commencing with an analysis under s. 5(1)(c)
to determine whether there are common issues – the centrepiece
of any class action. My conclusion is that there are no common
issues which can be manageably tried or will advance the
litigation and thus, in the end, I would deny certification on
this basis without leave to re-apply.
[17] The motions judge directed that the common issues be
“liability and punitive and exemplary damages.” Before this court
the appellant supported that broad definition and then suggested
alternatives including, respecting the central issue of nuisance,
“did the defendant’s operation of the Keele Valley Landfill
interfere with class members’ use and enjoyment of their
properties?” The latter is really a definition of a legal
nuisance and thus returns one to the liability issue designated
by the motion judge.
[18] The statement of claim alleges negligence, nuisance, a claim
based on Rylands v. Fletcher and on s. 99 of the Environmental
Protection Act (for a spill of a pollutant). No one of these
claims can be established unless a nuisance is proved and thus
the search for a common issue can be confined to the claim of
nuisance. Counsel before this court stated that the prime
complaint was odours emanating from the site, and I shall
therefore confine my analysis to nuisance by reason of odours.
[19] In Russell Transport Ltd. v. Ontario Malleable Iron Co.
(1952), O.R. 621 (Gen. Div.) the court addressed the emission of
harmful matter from the defendant’s foundry. McRuer C.J.H.C.
adopted a description of a legal nuisance from the House of
Lords. At p. 628 he stated:
The statement of the Lord Chancellor in
St. Helen’s Smelting Company v. Tipping (1865),
11 H.L. Cas. 641 at 650, 11 E.R. 1483, is the
classic authority in all cases similar to the
one before me:
‘My Lords, in matters of this
description it appears to me that it is a
very desirable thing to mark the difference
between an action brought for a nuisance upon
the ground that the alleged nuisance produces
material injury to the property, and an
action brought for a nuisance on the ground
that the thing alleged to be a nuisance is
productive of sensible personal discomfort.
With regard to the latter, namely, the
personal inconvenience and interference with
one’s enjoyment, one’s quiet, one’s personal
freedom, anything that discomposes or
injuriously affects the senses or the nerves,
whether that may or may not be denominated a
nuisance, must undoubtedly depend greatly on
the circumstances of the place where the
thing complained of actually occurs. If a man
lives in a town, it is necessary that he
should subject himself to the consequences of
those operations of trade which may be
carried on in his immediate locality, which
are actually necessary for trade and
commerce, and also for the enjoyment of
property, and for the benefit of the
inhabitants of the town and of the public at
large. If a man lives in a street where there
are numerous shops, and a shop is opened next
door to him, which is carried on in a fair
and reasonable way, he has no ground for
complaint, because to himself individually
there may arise much discomfort from the
trade carried on in that shop. But when an
occupation is carried on by one person in the
neighbourhood of another, and the result of
that trade, or occupation, or business, is a
material injury to property, then there
unquestionably arises a very different
consideration. I think, my Lords, that in a
case of that description, the submission
which is required from persons living in
society to that amount of discomfort which
may be necessary for the legitimate and free
exercise of the trade of their neighbours,
would not apply to circumstances the
immediate result of which is sensible injury
to the value of the property.’ (The italics
are mine.)
[20] It follows that liability for nuisance in the present case
in favour of any individual property owner or resident, can only
be established by evidence that the particular individual
personally suffered sensible discomfort or evidence that
emissions from the defendant’s premises have interfered with the
reasonable enjoyment of their properties.
[21] We are not dealing with a plume that enveloped a
neighbourhood for a defined period where, upon proof of the
event, it can be assumed that everyone was similarly affected by
a legal nuisance. The events complained of occurred sporadically
over a number of years and with varying intensity of odour. The
members of the proposed class live at various distances and
directions from the landfill site and, of course, wind directions
and velocity are constantly changing. The evidence also suggests,
as an added complication, that there are alternative potential
sources of odours in the community.
[22] This group of 30,000 people is not comparable to patients
with implants, the occupants of a wrecked train or those who have
been drinking polluted water. They are individuals whose lives
have each been affected, or not affected, in a different manner
and degree and each may or may not be able to hold the respondent
liable for a nuisance. A trial judge dealing with liability as a
common issue would immediately discover that there was no economy
in the proceedings and that the trial would be unmanageable.
Every incident complained of would have to be separately examined
together with its impact upon every household and a conclusion
reached as to whether each owner or occupier had been impacted
sufficiently that a finding of nuisance is justified. To add to
the already impossible task, complaints of odours are by their
nature subjective and thus would have to be individually assessed
in order to ascertain whether emissions from the respondent’s
site had materially affected each class member’s enjoyment of
property or caused personal discomfort justifying compensation.
[23] No common issue other than liability was suggested and I
cannot devise one that would advance the litigation. An issue
such as “Did the defendant emit pollutants into the atmosphere
over a six-year period, and if so, when, and to what extent?”
would result in a virtual Royal Commission into the operation of
this landfill site without any measurable advance in the
litigation. One could assume from the evidence of complaints that
odours have escaped this site from time to time over the years.
The issue is whether these odours caused sensible personal
discomfort or interfered with the enjoyment of property to such
an extent that the individuals affected are deserving of
compensation.
[24] This is to be contrasted with the circumstances in Bywater
where Winkler J. observed at p. 178:
Evidence of the circumstances surrounding the fire, the
general background of the events on August 6, 1997, including the
evacuation of the affected portion of the subway system, the
composition of the smoke, the manner in which TTC staff reacted
to the emergency, and other evidence of general application to
all the individual claims is relevant and indeed essential for a
determination of individual damage claims. It is expedient, and
in the interests of judicial economy, that this evidence and any
consequent findings be dealt with as common issues of fact. Apart
from the obvious efficiencies, this has the added advantage of
removing the risk of inconsistent findings which accompanies a
multiplicity of proceedings.
[25] My analysis and conclusion are similar to those of Winkler
J. in Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63
(Gen. Div.), addressing a claim that the defendant misrepresented
the quality of the programs and facilities offered at the
educational institution it was running, he stated at p. 73:
The presence of individual issues will not be fatal to
certification. Indeed, virtually every class action contains
individual issues to some extent. In the instant case, however,
what common issues there may be are completely subsumed by the
plethora of individual issues, which would necessitate individual
trials for virtually each class member. Each student’s experience
is idiosyncratic, and liability would be subject to numerous
variables for each class member. Such a class action would be
completely unmanageable.
[26] Sharpe J. came to a similar conclusion in Controltech
Engineering Inc. v. Ontario Hydro (1998), 72 O.T.C. 351 (Gen.
Div.), arising from an Ontario Hydro request for proposals to
provide it with the electricity from renewable energy technology,
where he stated at paragraph 16:
[para16] While there is a common factual core to the claims
of the various bidders, I am not persuaded that this common core
amounts to a common issue for the purposes of s. 5. In
particular, I fail to see how the proposed common issues would
resolve anything that would “move the litigation forward” in as
much as it would still be necessary to examine what was said to
each individual bidder with respect to each individual claim.
This is not a case that lends itself to determination of the
discrete issues of misrepresentation and negligence or
recklessness, leaving cleanly for individual consideration the
issue of reliance on the specific statement dealt with at the
common issue stage. Here, the facts and issues cannot be broken
down into appropriate and distinct categories that would allow
the case to proceed in that manner. No single or common statement
can be identified as having been made at the same time, or in a
sufficiently similar context, and because different statements
were made to various class members at various stages of the
bidding process and in relation to various proposals, it would be
necessary to determine on an individual basis precisely what the
individual bidder was told. The plaintiff simply cannot escape
the consequences of the fact that claims do not all flow from the
same misrepresentation. I conclude, accordingly, that there is no
common issue with respect to the claims for misrepresentation.
[27] The appellant further seeks to justify certification on the
grounds that this is an action for a public nuisance as well as
for private nuisances. In Ryan v. Victoria (City), [1999] 1
S.C.R. 201; at p. 17 Major J. refers to public nuisance in these
terms:
¶ 52 The doctrine of public nuisance appears as a poorly
understood area of the law. “A public nuisance has been defined
as any activity which unreasonably interferes with the public’s
interest in questions of health, safety morality, comfort or
convenience”: see Klar, supra, at p. 525. Essentially, “[t]he
conduct complained of must amount to … an attack upon the rights
of the public generally to live their lives unaffected by
inconvenience, discomfort or other forms of interference”: See
G.H.L. Fridman, The Law of Torts in Canada, vol. I (1989), at p.
168.
[28] Before recent statutory changes such an action could only be
instituted on the relation of, and with the consent of, the
Attorney General and was normally directed to obtaining an
injunction against a public nuisance. In Attorney General v
P.Y.A. Quarries Ltd., [1957] 2 Q.B. 169 (C.A.) the Attorney
General on the relation of the county council and rural district
council was seeking to restrain a quarry owner from blasting
stones and splinters through the neighbourhood.
[29] Romer L.J. stated at p. 187:
In general, however, a public nuisance is proved by the
cumulative effect which it is shown to have had on the people
living within its sphere of influence. In other words, a normal
and legitimate way of proving a public nuisance is to prove a
sufficiently large collection of private nuisances.
[30] The Ontario Law Reform Commission recognized the
insufficiency of relator proceedings to deal with pollution
claims and thus recommended class actions as a means of redress
for environmental claims. Following that, the Environmental
Protection Act, R.S.O. 1990, c.E.19 created a statutory cause of
action for spills in s. 99(2) and s. 103(1) of the Environmental
Bill of Rights, S.O. 1993, c.28 and eliminated the need to
proceed by way of relator proceedings for a claim based on public
nuisance.
[31] Against this background the appellant contends that he has a
legitimate claim for a public nuisance and that his claim should
proceed by way of a class proceeding.
[32] As I see it, the authorization of class actions provided a
remedy against polluters in appropriate circumstances, and the
elimination of the need for relator proceedings opened up another
avenue for pursuit. However, one should not assume an overlap
between the two. The action as presently constituted may proceed
to trial asserting a public nuisance and the plaintiff may prove
that there are a sufficient number of private nuisances to
justify a finding of public nuisance. This would presumably lead
to some form of injunctive relief and, perhaps, damages to the
plaintiff for his private nuisance claim. If the emissions are as
troublesome as the plaintiff alleges, it should not be too
difficult to call witnesses in his neighbourhood to prove a
“sufficiently large collection of private nuisances” to justify
relief. The onus would then shift to the defendant. That form of
proceeding is straightforward and not cumbersome or unduly
expensive and is one alternative avenue for relief.
[33] However, changing the label from private to public nuisance
doesn’t provide an alternative justification for a class action.
If the individual claims for liability to damages of the members
of the class are to be asserted then there must be a common issue
which will advance the litigation and, as stated, I do not see
one.
[34] I therefore conclude that there is no common issue to
justify certification and the appeal should be dismissed except
for the deletion of paragraph 2 of the Divisional Court order,
dealing with a fresh application before a different judge.
[35] The order of the Divisional Court awarded costs to the
defendant, fixing those for the certification application at
$10,000 and those on appeal at $5,000.
[36] The Law Foundation of Ontario sought and was granted leave
to appeal to this court from the costs order of the Divisional
Court. Under the Law Society Act, R.S.O. 1990, c. L.8, the Law
Foundation maintains a fund to assist claimants in class
proceedings with disbursements, and, where it does provide such
assistance, to make payments to defendants who are awarded costs.
[37] Rule 12.04 provides:
12.04(1) This rule applies to class
proceedings in which the plaintiff or applicant
has received financial support from the Fund.
(2) No order for costs or
assessment of costs shall be made unless the
Foundation has had notice and an opportunity
to present evidence and make submissions in
respect of the costs.
(3) The Foundation is a party for
the purpose of an appeal in relation to
costs.
[38] In this case the Foundation was informed by the defendant
prior to the hearing that it would be seeking costs. It was not
represented at the hearing and, in fact, no one made
representations as to costs. The Divisional Court reserved
judgment and made its costs order without inviting submissions.
[39] The Foundation’s position before this court was that it was
not complaining of the costs order or its amount, but wished the
court to give directions as to the implementation of rule
12.04(2). Counsel also conceded that costs of this appeal should
follow the event.
[40] This issue is entwined in practical problems. A defendant
and the court do not necessarily know that the Foundation is
involved. The Foundation cannot afford to monitor the entirety of
motions and proceedings. Courts, notably appeal courts, often
assume that costs submissions are unnecessary because the
appearance is that they will follow the event or be dealt with on
some purely discretionary basis.
[41] The appearance is that rule 12.04 was put in place to
protect the Foundation against a plaintiff and counsel, with no
stake in the costs award, failing to properly press the issue of
costs to the detriment of the Foundation. In most cases,
including this one that would not be an issue.
[42] The simplest way to give force to the rule is to make it
standard practice that plaintiff’s counsel inform the court in
each instance that the action is or is not Foundation assisted.
If it is, counsel should inform the court that the Foundation has
been informed of the motion, appeal or other proceeding, and
whether it wishes to present evidence or make submissions as to
costs. A rule amendment is probably in order but, in the
meantime, these reasons can be taken as a “practice note”.
[43] Having regard to the comments of counsel for the Foundation
as to the actual disposition of costs in this proceeding, I would
award to the respondent costs of $5,000 for this appeal. There
will be no order as to costs of the appeal of the Law Foundation.
Released: December 15, 1999 “JJC”
“J.J. Carthy J.A.”
“I agree S.T. Goudge J.A.”
“I agree K. Feldman J.A.” |