Trends in Environmental Class Actions in Canada

• Author: Hailey Laycraft
• Pages: 75-109

75

Trends in Environmental Class Actions in Canada

Hailey Laycraft

: Environmental claims may arise when toxic substances are

emitted into the environment, causing harm to human health and dam-

age from contamination of property. These claims can result from a sin-

gle discrete incident or from prolonged exposure to a toxic substance

over time. The nature of environmental incidents can have an impact on

a large number of individuals, which may pursue redress through com-

bining individual claims into class actions.

This paper focuses on the trends that have emerged in jurisprudence

that have inf‌luenced the outcome of certif‌ication of environmental class

actions (ECAs) in Canada. Certif‌ication of ECAs have failed for a variety

of reasons, such as the statement of claim insuciently pleading material

facts to prove a cause of action, the identif‌iable class being too broad, the

individual issues hindering the common issues, and alternative means of

redress being available.

By analyzing other areas of law that rely on class actions to resolve

collective issues, this paper will attempt to reconcile ECAs as a preferable

way of advancing litigation stemming from environmental incidents.

CCAR 15-1.indb 758/6/2019 4:33:28 PM

CCAR 15-1.indb 768/6/2019 4:33:28 PM

77

TRENDS IN ENVIRONMENTAL CLASS

ACTIONS IN CANADA

Hailey Laycraft*

A. INTRODUCTION

Nearly two decades ago, the Supreme Court of Canada’s decision in West-

ern Canadian Shopping Centres Inc v Dutton decided when a class action

may be used as a procedural vehicle to bring forward a claim.1 For hun-

dreds of years, however, class actions have allowed individual claimants

with common issues to bring forward a complaint collectively. Since the

rise of the industrial revolution, class actions have played an essential

role of providing a fair and ecient means of resolving wrongs stemming

from corporate activities involving faulty products, mismanagement of

investor funds, or environmental harms. These types of claims that may

implicate the interests of a large group where individual claims may not

result in the collection of damage signif‌icant enough to justify the costs

of litigation. As a collective, however, the potential compounded dam-

ages may be substantial enough to warrant the resources necessary to

initiate an action.

In Dutton, McLachlin CJC, as she was then, viewed environmental

class actions (ECAs) as a promising vehicle to provide access to justice to

groups of individuals adversely af‌fected by environmental incidents.2 In

Dutton, McLachlin CJC stated:

* Hailey Laycraft is a 2019 JD graduate from Thompson Rivers University Faculty of

Law. Ms Laycraft is currently articling at Kornfeld LLP, in Vancouver, BC. She would

like to express thanks to Professor Craig E Jones, QC, of Thompson Rivers Univer-

sity for his guidance and expertise in the course of researching and writing this paper.

1 Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 [Dutton].

2 Ibid at para 26.

CCAR 15-1.indb 778/6/2019 4:33:28 PM