Trends in Environmental Class Actions in Canada

AuthorHailey Laycraft
Pages75-109
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.
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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.
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