One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.
Kirk v. Executive Flight Centre Fuel Services Ltd., 2019 BCCA 111
AREAS OF LAW: Torts; Class actions; Certification; Negligence, Nuisance; Fuel spill
~Individual questions of specific causation may not be certified as common issues in a class action proceeding.~
The Appellant, Danny LaSante, was the driver of a truck which fell down an embankment and spilled approximately 35,000 litres of helicopter fuel into Lemon Creek. The fuel was carried into the Slocan and Kootenay Rivers. Local residents were ordered to evacuate and to not use the water. The evacuation zone included 2,776 properties. The Respondent Robert Kirk commenced a proceeding seeking to certify a class action on behalf of all persons who owned, leased, rented or occupied real property on the date of the spill within the evacuation zone defined in the evacuation order. He claimed property damage, loss of use of property, interference with quiet enjoyment, and the diminution of the market value of properties within the evacuation zone. Aside from LaSante, the Respondent brought the action against the Province of British Columbia, Transwest Helicopters Ltd., and Executive Flight Centre Fuel Services Ltd. The chambers judge certified the action in negligence on the basis of the rule in Rylands v. Fletcher. He found that the pleadings disclosed a cause of action, there was an identifiable class, and that the common issues predominated over the individual ones. He certified on the common issues of negligence, nuisance, Rylands v. Fletcher, diminution of property value, punitive damages, and apportionment of liability. He concluded that the class proceeding was the preferable procedure, and that the Respondent was an appropriate class representative. The four Appellants appealed every aspect of the certification analysis.
The appeal was allowed. The Court of Appeal agreed with the chambers judge that while the definition of the class was somewhat imprecise, it was sufficient to permit individuals to know if they were in the class. With respect to the common issues, the Province took the position that the issue of whether the Appellants’ breaches of their owed duty caused class members to suffer harm dealt with specific rather than general causation. For this reason, the Province argued, an individual assessment of whether each class member incurred damage and what caused that damage would be required. The Court accepted this argument. The Appellants also argued that the claim in nuisance lacked sufficient commonality. While the causation of the evacuation and “do not use water” orders was common to the class and would materially advance the claims of all class members, the judge erred in certifying the class action on issues that would require an individual assessment of the subjective impact of the evacuation or the consequences of the acts or omissions of the Appellants on class members in order to determine whether they suffered a loss of use and enjoyment of their properties. Similarly, the chambers judge erred in certifying the action on the fourth element of the Rylands v. Fletcher test. That element requires damage be caused to the plaintiff as a result of the escape of something with the potential to make mischief. It requires an individual assessment of damages. The Court agreed with the Appellants that the Respondent had failed to demonstrate any diminution in property values and found that the judge erred in certifying the diminution as a common issue in the absence of an evidentiary basis. The Court found that the facts as pleaded did not allege, and the evidence referred to did not describe, any conduct that could be characterized as a marked departure from the ordinary standards of decent behaviour. Accordingly, there was no foundation upon which to certify the action on the question of punitive damages. The matter was remitted to the chambers judge to reconsider the common issues of negligence, nuisance, Rylands v. Fletcher, and the apportionment of liability. Given this outcome, the Court of Appeal found it appropriate to remit the question of preferability to the chambers judge to be determined with the benefit of submissions from the parties.
Comments by Ian Knapp, Counsel for the Appellant Transwest Helicopters Ltd
The recent decision in Kirk v. Executive Flight Centres provides helpful guidance to litigants assessing when a claim in nuisance is the appropriate subject of a class proceeding. It is an important and welcome important decision in this regard: Environmental disputes are a common source of friction and class actions are a popular and effective new tool in dispute resolution.
Long before the law of negligence and the regulatory state, the law of nuisance was the workhorse of environmental protection efforts. Our historical records show that common law courts, since at least Magna Carta, have been using the tort to control pollution and preserve local environments with great success, often showing indifference and even hostility to the forces of progress.  Through this history and experience, the law of nuisance has become a robust and effective mechanism for addressing environmental disputes.
Long before the Class Proceedings Act, the law of nuisance developed a means to address conduct of defendants which impacted the community as a whole: the public nuisance. Public nuisances were interferences with public rights and were pursued by the Attorney General, his relator, or those who suffered harm which was unique or peculiar in character from the general public. This process was an early “access to justice” tool, enabling one person to achieve an injunction for the benefit of a large number of others in an efficient manner.
In contrast, private nuisances are those nuisances which unreasonably interfere with a person’s right to use and enjoy her own property. The liability analysis focuses on the experience of the receiving property and its occupants, rather than the conduct of the defendant. This presents a conceptual problem for class plaintiffs, who must demonstrate to a certification court that a class proceeding can meaningfully contribute to the cause of action’s resolution.
Mr. Kirk’s case is about a single fuel spill of Jet A-1 fuel into the Slocan Valley. The claim was made up of complaints from local residents who made up the proposed class. These complaints were numerous and diverse, and included allegations of drinking water contamination, obnoxious smells, and inconvenience occasioned by evacuation orders.
The plaintiff sought to have the court certify a host of common issues relating to nuisance and found success in the trial court. The chambers judge found the fact that the complaint arose from a “single incident mass tort” to be a compelling basis for certification of the claim and common issues, as presented.
The variety of experience amongst the various class members, however, troubled the Court of Appeal, who dismantled most of the common issues concerning nuisance and remitted the matter to the trial court for reconsideration. In doing so, Garson J.A. drew a clear line delineating when, in her view, a claim in nuisance would properly fit within an environmental class action: Where the claim presents a “clear, universal question.” The court did not entirely dismiss the appeal: It was remitted to the trial court for reconsideration and some common issues were preserved, including those pertaining to an evacuation order issued as a result of the spill.
The phrase “clear, universal question” provides an important limitation on the scope of nuisance claims suitable for class action, as it draws on basic principles underlying that tort.
Only rarely can it be said that cases of private nuisances can present clear universal questions. Such disputes are almost always localized and heavily focused on assessing the unique circumstances of the affected properties. These sorts of disputes do not lend themselves well to common resolution.
That being said, public nuisances are much more familiar with commonality. This cause of action has always dealt with “common issues,” in these that public nuisance cases have sought to enforce rights held by the public at large against individual overreach and environmental contamination. Such cases pose “clear, universal questions”. A class action is a natural fit to such claims and moreover provides an efficient pathway to compensation for those who suffer special damage.
The decision in Kirk v. Executive Flight Centres makes it clear, it is submitted, that public nuisances remain an important form of environmental protection and can be a viable source of class actions. Pursuing private nuisances, however, should be avoided, as they are rife with individual issues unsuitable for class proceedings.
 See C. Harvey, Q.C. “History of Nuisance”, Chapter 1E in The Law of Nuisance in Canada, 2nd ed.. (Toronto, LexisNexis Canada Inc., 2015)
2 Paras. 77 to 81
3 Care must be taken to distinguish between the use of this term in the context of the law of nuisance and the use of the term in the 0law of damages. They bear quite separate meanings.
Comments from Kelsey Sherriff, Counsel for the Appellant Executive Flight Centre Fuel Services Ltd.
The Court’s treatment of nuisance and punitive damages in this case maintain a high bar that must be met before those issues will be certified.
With respect to nuisance, this decision confirms that there remains significant challenges to certifying a nuisance class action: there must be a clear universal question (at para. 78). Where a universal issue cannot be shown, a claim in nuisance may not be suitable for a class action because it will turn on the impact to each individual class member (at para. 80).
Unlike other torts, nuisance does not focus on the actions of the wrongdoer. Even where the actions of the defendant are perfectly permissible and not negligent, for example the compost operations in Baker v Rendle, 2017 BCCA 72, that conduct may still result in the tort of nuisance if its impact on the plaintiff causes loss of use and enjoyment of their property.
Given the inherently personal nature of this tort, the Court of Appeal seems to be continuing the tradition of a high bar for class actions in nuisance in B.C. The Court of Appeal struck the common issues regarding whether the conduct of the Defendants caused loss of use and enjoyment of property and whether they committed the tort of nuisance, on the grounds that those issues would require an individual assessment of the subjective impact of the evacuation or the consequences of the spill on the class members’ use and enjoyment of property. However the Court remitted the question to the Chambers Judge to reconsider whether there is a basis in fact to certify a common issue in nuisance based on the evacuation order and the water use ban alone and whether those orders established a common experience that gave rise to a non-trivial interference. It is likely that in remitting this question, the Court of Appeal had in mind the common issue certified in Gautam v. Canada Line Rapid Transit Inc., 2011 BCCA 275.
It is my opinion that nuisance class actions, such as Gautam, will and should continue to be a rare occurrence given the challenge in shaping nuisance questions that are universal where the tort is inherently focused on the impact that the conduct has on the individual. Guatam involved the prolonged closing of Cambie Street and a universal blocking of access to each businesses’ store front; a prolonged event that had a definite impact on each class member. While the evacuation order and water use ban following the spill may have resulted in a shared experience for some, it was an event of short duration, the experience of which was clearly not universal. The duration of the time each individual was affected varied; with some people not even being present or not heeding the warning; and the uses to which each property was put were highly divergent (recreational, residential, commercial, agricultural and industrial). Whether the Chambers Judge will consider a question can be posed that is sufficiently universal in these circumstances remains to be seen, however this author would urge caution to the courts in attempting to craft questions to fit the universality requirement for the purposes of certification, which may undermine the defendant’s substantive rights to require the complete tort be proven against them. In nuisance, where the blameworthiness of the conduct of the defendant is almost entirely irrelevant to the tort, the defendant should be permitted to insist on the strict requirement that the plaintiffs each prove that they themselves suffered a loss of use and enjoyment of their properties. Class actions are a procedural mechanism used to increase access to justice, but we should be cautious to avoid prioritizing the procedural benefits of class action to the extent that they override the substantive rights of defendants to require each element of the tort to be proven.
With respect to the claim for punitive damages, in finding that there was no basis in fact for the claim in punitive damages, the Court of Appeal affirmed the high bar to be set for such a claim. The Court of Appeal echoed the Supreme Court of Canada that punitive damages are available to punish misconduct that is “so malicious, oppressive, and high-handed that it offends the court’s sense of decency” such that the conduct “represents a marked departure from ordinary standards of decent behavior” (at para. 139). The Court noted that the allegations are that the driver made a mistake with disastrous consequences and that the class members were deeply dissatisfied with the response to the spill, but held that “dissatisfaction does not give rise to an award for punitive damages” (at para. 140.)
It my opinion that this affirms two things. First, the case for punitive damages will look at the conduct of the defendant, not the impact on the plaintiff. A punitive damages award is above and beyond the damages that have already been awarded to compensate the plaintiff for the impact of the conduct on them, and therefore rightly focuses on the conduct of the defendant. Second, the Court’s conclusion here shows that the strict test for punitive damages remains a high bar at the certification stage, not something to be claimed but particularized and proven later. To certify a claim in punitive damages will require a representative plaintiff to plead material facts and show some basis in fact that the conduct of the defendant reached that exceptional threshold that offends the court’s sense of decency.