A Statutory Solution to Ontario’s Environmental Class Action Problem: Section 99(2) of the Environmental Protection Act

AuthorJames Boyd
Pages421-465

A Statutory Solution to Ontario’s Environmental Class
Action Problem: Section 99(2) of the Environmental
Protection Act
James Boyd
: Despite the immense promise of the Class Proceedings Act,
1992 as a tool to facilitate claims for environmental harms, the landscape
for environmental class actions in Ontario is bleak. The seminal environ-
mental decisions involving the Act (Hollick v Toronto and Smith v Inco)
have saddled victims of environmental harms with dicult precedent to
overcome at both the certif‌ication and merits stages of litigation. How-
ever, the decision in Midwest v Thordarson, in which the Court of Appeal
armed the existence of the cause of action in section 99(2) of the
Environmental Protection Act, provides plaintif‌fs with a new path to suc-
cess in environmental class actions. The section 99(2) cause of action is
versatile and powerful, and may be asserted for dif‌ferent types of environ-
mental harms, by dif‌ferent types of plaintif‌fs, against dif‌ferent types of
defendants. Section 99(2) claims can also overcome common obstacles
that have prevented environmental class actions from receiving certif‌ica-
tion. Finally, section 99(2) of‌fers a likelihood of greater success at a trial as
compared to the typical common law causes of action for environmental
harms. With section 99(2), plaintif‌fs can achieve the promise of class
actions as a tool for seeking justice for widespread environmental harms.
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
A STATUTORY SOLUTION TO ONTARIO’S
ENVIRONMENTAL CLASS ACTION
PROBLEM: SECTION 99(2) OF THE
ENVIRONMENTAL PROTECTION ACT
James Boyd*
A. INTRODUCTION
Academics have long championed the potential of class actions as a
vehicle for pursuing recourse for environmental harms.1 Environmental
harms are often widespread and class actions can pool the claims of many
victims together in a judicially ecient way.2 The damages from environ-
mental incidents are also often too small to warrant individual actions,
and class actions provide access to justice for all victims irrespective of
their f‌inancial means.3 As well, individual actions for environmental
harms do little to modify the behaviour of defendants, while class actions
* Hon BA (Ryerson University), JD with Distinction (University of Western Ontario),
Student-at-Law, Siskinds LLP. The conception of this article arose from course work
conducted under the supervision of Adjunct Professor Paul Lombardi of the Univer-
sity of Western Ontario, a Partner at Siskinds LLP, to whom I would like to extend
my gratitude. I would also like to thank Ryan McShef‌frey for all his commentary and
assistance.
1 Ontario Law Reform Commission, Report on Class Actions, vol 1 (Toronto: Ministry
of the Attorney General, 1982) at 269–75 [OLRC]; Christie Kneteman, “Revitalizing
Environmental Class Actions: Quebecois Lessons For English Canada” (2010) 6:2
Canadian Class Action Review 261; Ward K Branch, Class Actions in Canada (Aurora,
ON: Canada Law Book, 2010) (loose-leaf updated October 2011), ch 5 at 5-55.
2 Patrick Hayes, “Exploring the Viability of Class Actions Arising from Environmental
Toxic Torts: Overcoming Barriers to Certif‌ication” (2009) 19 Journal of Environmental
Law & Practice 189 at 190.
3 Heather McCleod-Kilmurray, “Hollick and Environmental Class Actions: Putting the
Substance into Class Action Procedure” (2002) 34:2 Ottawa Law Review 263 at 283.
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