The BC Court of Appeal’s decision in Kirk v Executive Flight Centre et. al striking out certification of an environmental class action illustrates the challenges in bringing environmental torts by way of class proceedings and specifically maintains a high bar for nuisance claims to be certified.
The defendant was driving a fuel truck when his truck rolled down an embankment into Lemon Creek, spilling 35,000 litres of Jet A-1 fuel. Local residents were ordered to evacuate, and water use restrictions were issued. The plaintiff commenced a class proceeding on behalf of local residents for claims including negligence, nuisance and diminution of market value of properties. The matter was certified as a class action, and the defendants appealed on the grounds that the Judge erred in certifying several common issues that lacked sufficient commonality.
In allowing the appeal, the Court of Appeal’s decision dismantled most of the common issues concerning nuisance and drew a clear line delineating when a claim in nuisance would properly be certified in a class action. The Court held that the Chambers Judge erred in certifying questions under nuisance that would require an assessment of the subjective impact of the spill to determine whether it interfered with class members’ use and enjoyment. The Court of Appeal confirmed that class actions in nuisance will be certified only where there is a clear universal question based on a “common experience”.
The Court remitted the question to the Chambers Judge to reconsider whether a common issue in nuisance could be framed based on whether the evacuation and water restrictions established a “common experience” that gave rise to a non-trivial interference.
Given the inherently personal nature of the tort of nuisance, which looks at the impact of the conduct/event on the individual, the Court of Appeal’s decision confirms that there remain significant challenges to certifying a nuisance class action. The clear universal question or common experience requirement is a high bar as it will be rare for private nuisances to present clear universal questions. As nuisance is a common claim arising from the impact of environmental events, it seems that it will continue to be a challenge to bring class actions for environmental torts. Claims in public as opposed to private nuisance may be a more appropriate vehicle for addressing environmental contamination in order for them to be amenable to class certification.
Similarly, the Court of Appeal found that the Chambers Judge erred in certifying the question of whether the spill caused the properties within the evacuation zone to diminish in market value. The Court noted that assessing diminution in market value was an inherently individual exercise. It can be a common issue only where: (i) there is some evidence that there was a universal impact on the properties in the class; and (ii) the plaintiff can prove a methodology exists that is capable of establishing and measuring diminution in value on a class wide basis. The Chambers Judge erred in not performing that analysis, and the Court struck this common issue.
However, the Court of Appeal did hold that the Chambers Judge properly certified as common issues several of the questions surrounding negligence, including whether the defendants owed a duty of care to the class members and whether they breached that duty. The Court did find that the Judge erred in certifying the question of whether the class members suffered harm. The Court rejected the plaintiff’s contention that this was a question of general causation of whether the defendants’ conduct had the “propensity to cause harm”; and, instead, concluded it was a question of specific causation about whether class members actually suffered harm, which was an individual, rather than common issue.
This conclusion again poses challenges for environmental torts where there is often no direct damage to individual properties or persons, which is required for a finding of negligence. Often environmental disasters result in indirect interference for nearby residents that results in loss of use and enjoyment of their property, such as evacuations, odours, impact on views or loss of nearby environmental amenities.
In light of the individualized impacts of environmental disasters, class actions for environmental torts are likely to remain rare.
The matter was remitted back to the Chambers Judge to reconsider certification so it remains to be seen if this environmental class action will be certified. The Supreme Court of Canada denied the plaintiff’s application for leave to appeal.
 Kirk v Executive Flight Centre Fuel Services Ltd., 2019 BCCA 111