The appellant complained of noise and physical pollution from a landfill owned and operated by the respondent city. He sought certification, under Ontario’s Class Proceedings Act, 1992, to represent some 30,000 people who live in the vicinity of the landfill.
The motions judge found that the appellant had satisfied each of the five certification requirements set out in s. 5 of the Act and ordered that the appellant be allowed to pursue his action as representative of the stated class. The Divisional Court overturned the certification order on the grounds that the appellant had not satisfied the commonality requirement. The Court of Appeal dismissed the appeal, agreeing with the Divisional Court.
The Supreme Court held that the appeal should be dismissed.
It was of the view that in this case there was an identifiable class by reference to objective criteria within the meaning of s. 5(1)(b). With respect to whether “the claims . . . of the class members raise common issues”, as required by s. 5(1)(c), the underlying question was whether allowing the suit to proceed as a representative one would avoid duplication of fact-finding or legal analysis. Thus an issue would be common only where its resolution was necessary to the resolution of each class member’s claim. Here, it was sufficiently clear that many individuals besides the appellant were concerned about noise and physical emissions from the landfill. Moreover, complaints were registered from many different areas within the specified boundaries.
A class proceeding would not be the preferable procedure for the resolution of the common issues, however, as required by s. 5(1)(d). The preferability inquiry should be conducted through the lens of the three principal advantages of class actions: judicial economy, access to justice, and behavior modification. The appellant had not shown that a class action was the preferable means of resolving the claims raised here. With respect to judicial economy, any common issue here was negligible in relation to the individual issues. While each of the class members had to, in order to recover, establish that the landfill emitted physical or noise pollution, it was likely that some areas were affected more seriously than others. Nor would allowing a class action here serve the interests of access to justice. The fact that no claims had been made against the Small Claims Trust Fund could suggest that the class members’ claims were either so small as to be non-existent or so large as to provide sufficient incentive for individual action. In either case access to justice was not a serious concern. The argument that behavior modification was a significant concern in this case was rejected for similar reasons.