Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 SCR 158

hollick v. toronto (city), [2001] 3 S.C.R. 158, 2001 SCC 68

John Hollick                                                                                                      Appellant

v.

City of Toronto                                                                                              Respondent

and

Friends of the Earth, West Coast Environmental Law

Association, Canadian Association of Physicians for the

Environment, the Environmental Commissioner

of Ontario and Law Foundation of Ontario                                                  Interveners

Indexed as:  Hollick v. Toronto (City)

Neutral citation:  2001 SCC 68.

File No.:  27699.

2001 :  June 13;  2001:  October 18.

Present:  McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.

on appeal from the court of appeal for ontario

Practice -- Class actions -- Certification -- Plaintiff complaining of noise and physical pollution from landfill owned and operated by city -- Plaintiff bringing action against city as representative of some 30,000 other residents who live in vicinity of landfill -- Whether plaintiff meets certification requirements set out in provincial class action legislation -- Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1).

The appellant complains 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 stated an identifiable class and had not satisfied the commonality requirement.  The Court of Appeal dismissed the appellant’s appeal, agreeing with the Divisional Court that commonality had not been established.

Held:  The appeal should be dismissed.

The Class Proceedings Act, 1992 should be construed generously to give full effect to its benefits.  The Act was adopted to ensure that the courts had a procedural tool sufficiently refined to allow them to deal efficiently, and on a principled rather than ad hoc basis, with the increasingly complicated cases of the modern era.

In this case there is an identifiable class within the meaning of s. 5(1)(b).  The appellant has defined the class by reference to objective criteria, and whether a given person is a member of the class can be determined without reference to the merits of the action.  With respect to whether “the claims . . . of the class members raise common issues”, as required by s. 5(1)(c), the underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis.  Thus an issue will be common only where its resolution is necessary to the resolution of each class member’s claim.  Further, an issue will not be “common” in the requisite sense unless the issue is a substantial ingredient of each of the class members’ claims.  Here, if each of the class members has a claim against the respondent, some aspect of the issue of liability is common within the meaning of s. 5(1)(c).  The issue is whether there is a rational connection between the class as defined and the asserted common issues.  While the putative representative must show that the class is defined sufficiently narrowly, he or she need not show that everyone in the class shares the same interest in the resolution of the asserted common issue.   The appellant has met his evidentiary burden.  It is sufficiently clear that many individuals besides the appellant were concerned about noise and physical emissions from the landfill.  Moreover, while some areas within the geographical area specified by the class definition appear to have been the source of a disproportionate number of complaints, 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).  In the absence of legislative guidance, the preferability inquiry should be conducted through the lens of the three principal advantages of class actions:  judicial economy, access to justice, and behaviour modification.  The question of preferability must take into account the importance of the common issues in relation to the claims as a whole.  The preferability requirement was intended to capture the question of whether a class proceeding would be preferable in the sense of preferable to other procedures such as joinder, test cases and consolidation.  The preferability analysis requires the court to look to all reasonably available means of resolving the class members’ claims, and not just at the possibility of individual actions.  The appellant has not shown that a class action is the preferable means of resolving the claims raised here.  With respect to judicial economy, any common issue here is negligible in relation to the individual issues.  While each of the class members must, in order to recover, establish that the landfill emitted physical or noise pollution, it is likely that some areas were affected more seriously than others, and that some areas were affected at one time while other areas were affected at other times.  Once the common issue is seen in the context of the entire claim, it becomes difficult to say that the resolution of the common issue will significantly advance the action.  Nor would allowing a class action here serve the interests of access to justice.  The fact that no claims have been made against the Small Claims Trust Fund may suggest that the class members claims are 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 is not a serious concern.  The argument that behaviour modification is a significant concern in this case should be rejected for similar reasons.

Cases Cited

Referred to:  Rylands v. Fletcher (1868), L.R. 3 H.L. 330; Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172; Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, 2001 SCC 46; Caputo v. Imperial Tobacco Ltd. (1997), 34 O.R. (3d) 314; Webb v. K-Mart Canada Ltd. (1999), 45 O.R. (3d) 389; Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63; Taub v. Manufacturers Life Insurance Co. (1998), 40 O.R. (3d) 379; Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (2d) 453; Rumley v. British Columbia, [2001] 3 S.C.R. 184, 2001 SCC 69.

Statutes and Regulations Cited

Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 4(2).

Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 2(1), (2), 5(1), (4), (5), 6.

Code of Civil Procedure, R.S.Q., c. C-25, Book IX.

Environmental Bill of Rights,1993, S.O. 1993, c. 28, ss. 61(1), 74(1).

Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 14(1), 99, 172(1), 186(1).

Family Law Act, R.S.O. 1990, c. F.3.

Federal Rules of Civil Procedure, Rule 23(b)(3).

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 12.01.

Authors Cited

Branch, Ward K.  Class Actions in Canada.  Vancouver:  Western Legal Publications, 1996 (loose-leaf updated December 1998, release 4).

Cochrane, Michael G.  Class Actions:  A Guide to the Class Proceedings Act, 1992.  Aurora, Ont.:  Canada Law Book, 1993.

Eizenga, Michael A., Michael J. Peerless and Charles M. Wright.  Class Actions Law and Practice.  Toronto:  Butterworths, 1999 (loose-leaf updated June 2001, issue 4).

Friedenthal, Jack H., Mary K. Kane and Arthur R. Miller.  Civil Procedure, 2nd ed.   St. Paul, Minn.:  West Publishing Co., 1993.

Ontario.  Attorney General’s Advisory Committee on Class Action Reform.  Report of the Attorney General’s Advisory Committee on Class Action Reform.  Toronto:  The Committee, 1990.

Ontario.  Law Reform Commission.  Report on Class Actions.  Toronto:  Ministry of the Attorney General, 1982.

APPEAL from a judgment of the Ontario Court of Appeal (1999), 46 O.R. (3d) 257, 181 D.L.R. (4th) 426 (sub nom. Hollick v. Metropolitan Toronto (Municipality)), 127 O.A.C. 369, 32 C.E.L.R. (N.S.) 1, 41 C.P.C. (4th) 93, 7 M.P.L.R. (3d) 244, [1999] O.J. No. 4747 (QL), dismissing an appeal from a decision of the Divisional Court (1998), 42 O.R. (3d) 473, 168 D.L.R. (4th) 760, 116 O.A.C. 108, 28 C.E.L.R. (N.S.) 198, 31 C.P.C. (4th) 64, [1998] O.J. No. 5267 (QL), allowing an appeal from a decision of the Ontario Court (General Division) (1998), 27 C.E.L.R. (N.S.) 48, 18 C.P.C. (4th) 394, [1998] O.J. No. 1288 (QL), granting a motion to have an action certified as a class proceeding.  Appeal dismissed.

Michael McGowan, Kirk M. Baert, Pierre Sylvestre and Gabrielle Pop‑Lazic, for the appellant.

Graham Rempe and Kalli Y. Chapman, for the respondent.

Robert V. Wright and Elizabeth Christie, for the interveners Friends of the Earth, West Coast Environmental Law Association and Canadian Association of Physicians for the Environment.

Doug Thomson and David McRobert, for the intervener the Environmental Commissioner of Ontario.

Written submissions only by Mark M. Orkin, Q.C., for the intervener the Law Foundation of Ontario.

The judgment of the Court was delivered by

1                                   The Chief Justice – The question raised by this appeal is whether the appellant has satisfied the certification requirements of Ontario’s Class Proceedings Act, 1992, S.O. 1992, c. 6, and whether the appellant should accordingly be allowed to pursue his action against the City of Toronto as the representative of some 30,000 other residents who live in the vicinity of a landfill owned and operated by the City.  For the following reasons, I conclude that the appellant has not satisfied the certification requirements, and consequently that he may pursue this action only on his own behalf, and not on behalf of the stated class.

I.                 Facts

2                                   The appellant Hollick complains of noise and physical pollution from the Keele Valley landfill, which is owned and operated by the respondent City of Toronto.  The appellant sought certification, under Ontario’s Class Proceedings Act, 1992, to represent some 30,000 people who live in the vicinity of the landfill, in particular:

A.  All persons who have owned or occupied property in the Regional Municipality of York, in the geographic area bounded by Rutherford Road on the south, Jane Street on the west, King-Vaughan Road on the north and Yonge Street on the east, at any time on or after February 3, 1991, or where such a person is deceased, the personal representative of the estate of the deceased person; and

B.  All living parents, grandparents, children, grandchildren, siblings, and spouses (within the meaning of s. 61 of the Family Law Act) of persons who were owners and/or occupiers . . . .

The merits of the dispute between the appellant and the respondent are not at issue on this appeal.  The only question is whether the appellant should be allowed to pursue his action as representative of the stated class.

3                                   Until 1983, the Keele Valley site was a gravel pit owned privately.  It operated under a Certificate of Approval issued by the Ministry of the Environment in 1980.  After the respondent purchased the site in 1983, the Ministry of the Environment issued a new Certificate of Approval.  The 1983 Certificate covers an area of 375.9 hectares, of which 99.2 hectares are actual disposal area.  The remainder of the land constitutes a buffer zone.  The Certificate restricts Keele Valley to the receipt of non-hazardous municipal or commercial waste, and it sets out various other requirements relating to the processing and storage of waste at the site.  It also provides for a Small Claims Trust Fund of $100,000, administered by the Ministry of the Environment, to cover individual claims of up to $5,000 arising out of “off-site impact”.

4                                   The Ministry of the Environment monitors the Keele Valley site by employing two full-time inspectors at the site and by reviewing detailed reports that the respondent is required to file with the Ministry.  In addition, the City of Vaughan has established the Keele Valley Liaison Committee, which is meant to provide a forum for community concerns related to the site.  Until 1998, the appellant participated regularly at meetings of the Liaison Committee.  Finally, the respondent maintains a telephone complaint system for members of the community.

5                                   The appellant’s claim is that the Keele Valley landfill has unlawfully been emitting, onto his own lands and onto the lands of other class members:

(a) large quantities of methane, hydrogen sulphide, vinyl chloride and other toxic gases, obnoxious odours, fumes, smoke and airborne, bird-borne or air-blown sediment, particulates, dirt and litter (collectively referred to as “Physical Pollution”); and

(b) loud noises and strong vibrations (collectively referred to as “Noise Pollution”);

The appellant filed a motion for certification on November 28, 1997.  In support of his motion, the appellant pointed out that, in 1996, some 139 complaints were registered with the respondent’s telephone complaint system.  (Before this Court, the appellant submitted that “at least 500” complaints were made “to various governmental authorities between 1991 and 1996” (factum, at para. 7).)  The appellant also noted that, in 1996, the respondent was fined by the Ministry of Environment in relation to the composting of grass clippings at a facility located just north of the Keele Valley landfill.  In the appellant’s view, the class members form a well-defined group with a common interest vis-à-vis the respondent, and the suit would be best prosecuted as a class action.  The appellant seeks, on behalf of the class, injunctive relief, $500 million in compensatory damages and $100 million in punitive damages. 

6                                   The respondent disputes the legitimacy of the appellant’s complaints and disagrees that the suit should be permitted to proceed as a class action.  The respondent claims that it has monitored air emissions from the Keele Valley site and the data confirm that “none of the air levels exceed Ministry of the Environment trigger levels”.  It notes that there are other possible sources for the pollution of which the appellant complains, including an active quarry, a private transfer station for waste, a plastics factory, and an asphalt plant.  In addition, some farms in the area have private compost operations.  The respondent also argues that the number of registered complaints – it says that 150 people complained over the six-year period covered in the motion record – is not high given the size of the class.  Finally, it notes that, to date, no claims have been made against the Small Claims Trust Fund.

II.                Judgments

7                                   The motions judge, Jenkins J.,  found that the appellant had satisfied each of the five certification requirements set out in s. 5(1) of the Class Proceedings Act, 1992:  (1998), 27 C.E.L.R. (N.S.) 48.  He found that the appellant’s statement of claim disclosed causes of action under s. 99 of the Environmental Protection Act, R.S.O. 1990, c. E.19, and under the rule in Rylands v. Fletcher (1868), L.R. 3 H.L. 330; that the appellant had defined an identifiable class of two or more persons; that the issues of liability and punitive damages were common to the class; and that a class action would be the preferable procedure for resolving the complaints of the class.  Finally, he found that the appellant would be an adequate representative for the class and that the appellant had set out a workable litigation plan.  Though Jenkins J. struck out the appellant’s claim for injunctive relief on the ground that damages would be a sufficient remedy and rejected his claims under the Family Law Act, R.S.O. 1990, c. F.3, on the grounds that the facts pleaded “cannot . . . establish a basis for a claim for loss of care, guidance, and companionship” (p. 62).  Jenkins J. concluded that the appellant had satisfied the certification requirements of s. 5(1).  Accordingly he ordered that the appellant be allowed to pursue his action as representative of the stated class.

8                                   The Ontario Divisional Court, per O’Leary J., overturned the certification order on the grounds that the appellant had not stated an identifiable class and had not satisfied the commonality requirement: (1998), 42 O.R. (3d) 473.  O’Leary J. interpreted the identifiable class requirement to require that “there be a class that can all pursue the same cause of action” against the defendant.  He noted that “[t]o pursue such cause of action the members of the class must have suffered the interference with use and enjoyment of property complained of in the statement of claim” (p. 479).  O’Leary J. concluded that the appellant had not stated an identifiable class (at pp. 479-80):

[T]he evidence does not make it likely that th[e] 30,000 [class members] suffered such interference.  It cannot be assumed that the complaints made to Toronto make it likely that the landfill was the cause of the odour or thing complained about. . . . [E]ven if one were to assume that the Keele Valley landfill site was the source of all the complaints, 150 people making complaints over a seven-year period does not make it likely that some 30,000 persons had their enjoyment of their property interfered with.

For the same reasons, he concluded that the appellant had not satisfied the commonality requirement, writing that “[b]ecause the class that was certified . . . bears no resemblance to any group that was on the evidence likely injured by the landfill operation, there are no apparent common issues relating to the members of the class” (p. 480).  O’Leary J. set aside the certification order without prejudice to the plaintiff’s right to bring a fresh application on further evidence.

9                                   The Court of Appeal for Ontario, per Carthy J.A., dismissed Hollick’s appeal ((1999), 46 O.R. (3d) 257), agreeing with the Divisional Court that commonality had not been established.  Citing Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172 (Ont. Ct. (Gen. Div.)), Carthy J.A. noted that the definition of a class should not depend on the merits of the litigation.  However, he saw no bar to a court’s looking beyond the pleadings to determine whether the certification criteria had been satisfied.  “If it were otherwise”, he noted, “any statement of claim alleging the existence of an identifiable group of people would foreclose further consideration by the court” (p. 264).  Carthy J.A. acknowledged that a court should not test the existence of a class by demanding evidence that each member of the purported class have, individually, a claim on the merits.  The court should, however, demand “evidence to give some credence to the allegation that . . . ‘there is an identifiable class . . .’” (p. 264) (emphasis deleted).

10                               Carthy J.A. did not find it necessary to resolve the issue of whether the appellant had stated an identifiable class, because in his view the appellant had not satisfied the commonality requirement.  In Carthy J.A.’s view, proof of nuisance was essential to each of the appellant’s claims.  Because a nuisance claim requires the plaintiff to make an individualized showing of harm, there was no commonality between the class members.  Carthy J.A. wrote (at pp. 266-67):

This group of 30,000 people is not comparable to patients with implants, the occupants of a wrecked train or those who have been drinking polluted water.  They are individuals whose lives have each been affected, or not affected, in a different manner and degree and each may or may not be able to hold the respondent liable for a nuisance. . . .

No common issue other than liability was suggested and I cannot devise one that would advance the litigation.

Carthy J.A. dismissed the appeal, affirming the Divisional Court’s order except insofar as it would have allowed the appellant to bring a fresh application on further evidence.

III.               Legislation

11          Class Proceedings Act, 1992, S.O. 1992, c. 6

5. -- (1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,

(a)       the pleadings or the notice of application discloses a cause of action;

(b)       there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c)       the claims or defences of the class members raise common issues;

(d)       a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e)       there is a representative plaintiff or defendant who,

(i)    would fairly and adequately represent the interests of the class,

(ii)   has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii)  does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

6.  The court shall not refuse to certify a proceeding as a class proceeding solely on any of the following grounds:

1.  The relief claimed includes a claim for damages that would require individual assessment after determination of the common issues.

2.  The relief claimed relates to separate contracts involving different class members.

3.  Different remedies are sought for different class members.

4.  The number of class members or the identity of each class member is not known.

5.  The class includes a subclass whose members have claims or defences that raise common issues not shared by all class members.

IV.    Issues

12          Should the appellant be permitted to prosecute this action on behalf of the class described in his statement of claim?

V.     Analysis

13          Ontario’s Class Proceedings Act, 1992, like similar legislation adopted in British Columbia and Quebec, allows a member of a class to prosecute a suit on behalf of the class: see Ontario Class Proceedings Act, 1992, s. 2(1); see also Quebec Code of Civil Procedure, R.S.Q., c. C-25, Book IX; British Columbia Class Proceedings Act, R.S.B.C. 1996, c. 50.  In order to commence such a proceeding, the person who seeks to represent the class must make a motion for an order certifying the action as a class proceeding and recognizing him or her as the representative of the class: see Class Proceedings Act, 1992, s. 2(2).  Section 5 of the Act sets out five criteria by which a motions judge is to assess whether the class should be certified.  If these criteria are satisfied, the motions judge is required to certify the class.

14          The legislative history of the Class Proceedings Act, 1992, makes clear that the Act should be construed generously.  Before Ontario enacted the Class Proceedings Act, 1992, class actions were prosecuted in Ontario under the authority of Rule 12.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.  That rule provided that

[w]here there are numerous persons having the same interest, one or more of them may bring or defend a proceeding on behalf or for the benefit of all, or may be authorized by the court to do so.

While that rule allowed courts to deal with relatively simple class actions, it became clear in the latter part of the 20th century that Rule 12.01 was not well-suited to the kinds of complicated cases that were beginning to come before the courts.  These cases reflected “[t]he rise of mass production, the diversification of corporate ownership, the advent of the mega-corporation, and the recognition of environmental wrongs”: Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, 2001 SCC 46, at para. 26.  They often involved vast numbers of interested parties and complex, intertwined legal issues – some common to the class, some not.  While it would have been possible for courts to accommodate moderately complicated class actions by reliance on their own inherent power over procedure, this would have required courts to devise ad hoc solutions to procedural complexities on a case-by-case basis: see Western Canadian Shopping Centres, at para. 51.  The Class Proceedings Act, 1992, was adopted to ensure that the courts had a procedural tool sufficiently refined to allow them to deal efficiently, and on a principled rather than ad hoc basis, with the increasingly complicated cases of the modern era.

15          The Act reflects an increasing recognition of the important advantages that the class action offers as a procedural tool.  As I discussed at some length in Western Canadian Shopping Centres (at paras. 27-29), class actions provide three important advantages over a multiplicity of individual suits.  First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis.  Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own.  Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public.  In proposing that Ontario adopt class action legislation, the Ontario Law Reform Commission identified each of these advantages:  see Ontario Law Reform Commission, Report on Class Actions (1982), vol. I, at pp. 117-45; see also Ministry of the Attorney General, Report of the Attorney General’s Advisory Committee on Class Action Reform (February 1990), at pp. 16-18.  In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in a way that gives full effect to the benefits foreseen by the drafters.

16          It is particularly important to keep this principle in mind at the certification stage.  In its 1982 report, the Ontario Law Reform Commission proposed that new class action legislation include a “preliminary merits test” as part of the certification requirements.  The proposed test would have required the putative class representative to show that “there is a reasonable possibility that material questions of fact and law common to the class will be resolved at trial in favour of the class”: Report on Class Actions, supra, vol. III, at p. 862.  Notwithstanding the recommendation of the Ontario Law Reform Commission, Ontario decided not to adopt a preliminary merits test.  Instead it adopted a test that merely requires that the statement of claim “disclos[e] a cause of action”: see Class Proceedings Act, 1992, s. 5(1)(a).  Thus the certification stage is decidedly not meant to be a test of the merits of the action: see Class Proceedings Act, 1992, s. 5(5) (“An order certifying a class proceeding is not a determination of the merits of the proceeding”); see also Caputo v. Imperial Tobacco Ltd. (1997), 34 O.R. (3d) 314 (Gen. Div.), at p. 320 (“any inquiry into the merits of the action will not be relevant on a motion for certification”).  Rather the certification stage focuses on the form of the action.  The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action: see generally Report of the Attorney General’s Advisory Committee on Class Action Reform, at pp. 30-33.

17          With these principles in mind, I turn now to the case at bar.  The issue is whether  the appellant has satisfied the certification requirements set out in s. 5 of the Act.  The respondent does not dispute that the appellant’s statement of claim discloses a cause of action.  The first question, therefore, is whether there is an identifiable class.  In my view, there is.  The appellant has defined the class by reference to objective criteria; a person is a member of the class if he or she owned or occupied property inside a specified area within a specified period of time.  Whether a given person is a member of the class can be determined without reference to the merits of the action.  While the appellant has not named every member of the class, it is clear that the class is bounded (that is, not unlimited).  There is, therefore, an identifiable class within the meaning of s. 5(1)(b): see J. H. Friedenthal, M. K. Kane and A. R. Miller, Civil Procedure (2nd ed. 1993), at pp. 726-27; Bywater, supra, at pp. 175-76; Western Canadian Shopping Centres, supra, at para. 38.

18          A more difficult question is whether “the claims . . . of the class members raise common issues”, as required by s. 5(1)(c) of the Class Proceedings Act, 1992.  As I wrote in Western Canadian Shopping Centres, the underlying question is “whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis”.  Thus an issue will be common “only where its resolution is necessary to the resolution of each class member’s claim” (para. 39).  Further, an issue will not be “common” in the requisite sense unless the issue is a “substantial . . .  ingredient” of each of the class members’ claims.

19          In this case there is no doubt that, if each of the class members has a claim against the respondent, some aspect of the issue of liability is common within the meaning of s. 5(1)(c).  For any putative class member to prevail individually, he or she would have to show, among other things, that the respondent emitted pollutants into the air.  At least this aspect of the liability issue (and perhaps other aspects as well) would be common to all those who have claims against the respondent.  The difficult question, however, is whether each of the putative class members does indeed have a claim – or at least what might be termed a “colourable claim” – against the respondent.   To put it another way, the issue is whether there is a rational connection between the class as defined and the asserted common issues: see Western Canadian Shopping Centres, at para. 38 (“the criteria [defining the class] should bear a rational relationship to the common issues asserted by all class members”).  In asserting that there is such a relationship, the appellant points to the numerous complaints against the Keele Valley landfill filed with the Ministry of Environment.  In the appellant’s view, the large number of complaints shows that many others in the putative class, if not all of them, are similarly situated vis-à-vis the respondent.  For its part the respondent asserts that “150 people making complaints over a seven-year period does not make it likely that some 30,000 persons had their enjoyment of their property interfered with” (Divisional Court’s judgment, at pp. 479-80).  The respondent also quotes the Ontario Court of Appeal’s judgment (at p. 264), which declined to find commonality on the grounds that

[i]n circumstances such as are described in the statement of claim one would expect to see evidence of the existence of a body of persons seeking recourse for their complaints, such as, a history of “town meetings”, demands, claims against the no fault fund, [and] applications to amend the certificate of approval . . . .

20          The respondent is of course correct to state that implicit in the “identifiable class” requirement is the requirement that there be some rational relationship between the class and common issues.  Little has been said about this requirement because, in the usual case, the relationship is clear from the facts.  In a single-incident mass tort case (for example, an airplane crash), the scope of the appropriate class is not usually in dispute.  The same is true in product liability actions (where the class is usually composed of those who purchased the product), or securities fraud actions (where the class is usually composed of those who owned the stock).  In a case such as this, however, the appropriate scope of the class is not so obvious.  It falls to the putative representative to show that the class is defined sufficiently narrowly.

21          The requirement is not an onerous one.  The representative need not show that everyone in the class shares the same interest in the resolution of the asserted common issue.  There must be some showing, however, that the class is not unnecessarily broad – that is, that the class could not be defined more narrowly without arbitrarily excluding some people who share the same interest in the resolution of the common issue.  Where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended: see W. K. Branch, Class Actions in Canada (1996), at para. 4.205; Webb v. K-Mart Canada Ltd. (1999), 45 O.R. (3d) 389 (S.C.J.) (claim for compensation for wrongful dismissal; class definition overbroad because included those who could be proven to have been terminated for just cause); Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63 (Gen. Div.) (claim against school for misrepresentations about marketability of students after graduation; class definition overinclusive because included students who had found work after graduation).

22          The question arises, then, to what extent the class representative should be allowed or required to introduce evidence in support of a certification motion.  The recommendations of the Ontario Law Reform Commission’s 1982 report on this point should perhaps be given limited weight because, as discussed above, those recommendations were made in the context of a proposal that the certification stage include a preliminary merits test: see Report on Class Actions, supra, vol. II, at pp. 422-26 (recommending that both the representative plaintiff and the defendant be required, at the certification stage, to file one or more affidavits setting out all the facts upon which they intend to rely, and that the parties be permitted to examine the deponents of any such affidavits).  The 1990 report of the Attorney General’s Advisory Committee is perhaps a better guide.  That report suggests that “[u]pon a motion for certification . . . , the representative plaintiff shall and the defendant may serve and file one or more affidavits setting forth the material facts upon which each intends to rely” (emphasis added): see Report of the Attorney General’s Advisory Committee on Class Action Reform, supra, at p. 33.  In my view the Advisory Committee’s report appropriately requires the class representative to come forward with sufficient evidence to support certification, and appropriately allows the opposing party an opportunity to respond with evidence of its own.

23          This appears to be the existing practice of Ontario courts.  In Caputo, supra, the representative brought a class action against cigarette manufacturers claiming that they had knowingly misled the public about the risks associated with smoking.  In support of the certification motion, the class representative filed only a solicitor’s affidavit based on information and belief.  The court held that the evidence adduced by the class representative was insufficient to support certification, and that the defendant manufacturers should be allowed to examine the individual class members in order to obtain the information required to allow the court to decide the certification motion.  The “primary concern”, the court wrote, is “[t]he adequacy of the record”, which “will vary in the circumstances of each case” (p. 319).

24          In Taub v. Manufacturers Life Insurance Co. (1998), 40 O.R. (3d) 379 (Gen. Div.), the representative sought to bring a class action on behalf of the residents in her apartment building, alleging that mould in the building was exposing the residents to health risks.  The representative provided no evidence, however, suggesting that the mould had been found anywhere but in her own apartment.  The court wrote (at pp. 380-81) that “the CPA requires the representative plaintiff to provide a certain minimum evidentia[ry] basis for a certification order” (emphasis added).  While the Class Proceedings Act, 1992 does not require a preliminary merits showing, “the judge must be satisfied of certain basi[c] facts required by s. 5 of the CPA as the basis for a certification order” (p. 381).

25          I agree that the representative of the asserted class must show some basis in fact to support the certification order.  As the court in Taub held, that is not to say that there must be affidavits from members of the class or that there should be any assessment of the merits of the claims of other class members.  However, the Report of the Attorney General’s Advisory Committee on Class Action Reform clearly contemplates that the class representative will have to establish an evidentiary basis for certification: see Report, at p. 31 (“evidence on the motion for certification should be confined to the [certification] criteria”).  The Act, too, obviously contemplates the same thing: see s. 5(4) (“[t]he court may adjourn the motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence”).  In my view, the class representative must show some basis in fact for each of the certification requirements set out in s. 5 of the Act, other than the requirement that the pleadings disclose a cause of action.  That latter requirement is of course governed by the rule that a pleading should not be struck for failure to disclose a cause of action unless it is “plain and obvious” that no claim exists: see Branch, supra, at para. 4.60.

26          In my view the appellant has met his evidentiary burden here.  Together with his motion for certification, the appellant submitted some 115 pages of complaint records, which he obtained from the Ontario Ministry of Environment and Energy and the Toronto Metropolitan Works Department.  The records of the Ministry of Environment and Energy document almost 300 complaints between July 1985 and March 1994, approximately 200 complaints in 1995, and approximately 150 complaints in 1996.  The Metropolitan Works Department records document almost 300 complaints between July 1983 and the end of 1993.  As some people may have registered their complaints with both the Ministry of Environment and Energy and the Metropolitan Works Department, it is difficult to determine exactly how many separate complaints were brought in any year.  It is sufficiently clear, however, that many individuals besides the appellant were concerned about noise and physical emissions from the landfill.  I note, further, that while some areas within the geographical area specified by the class definition appear to have been the source of a disproportionate number of complaints, complaints were registered from many different areas within the specified boundaries.  I conclude, therefore, that the appellant has shown a sufficient basis in fact to satisfy the commonality requirement.

27          I cannot conclude, however, that “a class proceeding would be the preferable procedure for the resolution of the common issues”, as required by s. 5(1)(d).  The parties agree that, in the absence of legislative guidance, the preferability inquiry should be conducted through the lens of the three principal advantages of class actions – judicial economy, access to justice, and behaviour modification: see also Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (2d) 453 (Div. Ct.); compare British Columbia Class Proceedings Act, s. 4(2) (listing factors that court must consider in assessing preferability).  Beyond that, however, the appellant and respondent part ways.  In oral argument before this Court, the appellant contended that the court must look to the common issues alone, and ask whether the common issues, taken in isolation, would be better resolved in a class action rather than in individual proceedings.  In response, the respondent argued that the common issues must be viewed contextually, in light of all the issues – common and individual – raised by the case.  The respondent also argued that the inquiry should take into account the availability of alternative avenues of redress.

28          The report of the Attorney General’s Advisory Committee makes clear that “preferable” was meant to be construed broadly.  The term was meant to capture two ideas: first the question of “whether or not the class proceeding [would be] a fair, efficient and manageable method of advancing the claim”, and second, the question of whether a class proceeding would be preferable “in the sense of preferable to other procedures such as joinder, test cases, consolidation and so on”: Report of the Attorney General’s Advisory Committee on Class Action Reform, supra, at p. 32.  In my view, it would be impossible to determine whether the class action is preferable in the sense of being a “fair, efficient and manageable method of advancing the claim” without looking at the common issues in their context. 

29          The Act itself, of course, requires only that a class action be the preferable procedure for “the resolution of the common issues” (emphasis added), and not that a class action be the preferable procedure for the resolution of the class members’ claims.  I would not place undue weight, however, on the fact that the Act uses the phrase “resolution of the common issues” rather than “resolution of class members’ claims”.  As one commentator writes:

The [American] class action [rule] requires that the class action be the superior method to resolve the “controversy.”  The B.C. and Ontario Acts require that the class proceeding be the preferable procedure for the resolution of the “common issues” (as opposed to the entire controversy). [This] distinctio[n] can be seen as creating a lower threshold for certification in Ontario and B.C. than in the U.S.  However, it is still important in B.C. and Ontario to assess the litigation as a whole, including the individual hearing stage, in order to determine whether the class action is the preferable means of resolving the common issues.  In the abstract, common issues are always best resolved in a common proceeding.  However, it is important to adopt a practical cost-benefit approach to this procedural issue, and to consider the impact of a class proceeding on class members, the defendants, and the court.

See Branch, supra, at para. 4.690.  I would endorse that approach.

30          The question of preferability, then, must take into account the importance of the common issues in relation to the claims as a whole.  It is true, of course, that the Act contemplates that class actions will be allowable even where there are substantial individual issues: see s. 5.  It is also true that the drafters rejected a requirement, such as is contained in the American federal class action rule, that the common issues “predominate” over the individual issues: see Federal Rules of Civil Procedure, Rule  23(b)(3) (stating that class action maintainable only if “questions of law or fact common to the members of the class predominate over any questions affecting only individual members”); see also British Columbia Class Proceedings Act, s. 4(2)(a) (stating that, in determining whether a class action is the preferable procedures, the court must consider “whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members”).  I cannot conclude, however, that the drafters intended the preferability analysis to take place in a vacuum.  There must be a consideration of the common issues in context.  As the Chair of the Attorney General’s Advisory Committee put it, the preferability requirement asks that the class representative “demonstrate that, given all of the circumstances of the particular claim, [a class action] would be preferable to other methods of resolving these claims and, in particular, that it would be preferable to the use of individual proceedings” (emphasis added): M. G. Cochrane, Class Actions: A Guide to the Class Proceedings Act, 1992 (1993), at p. 27.

31          I think it clear, too, that the court cannot ignore the availability of avenues of redress apart from individual actions.  As noted above, the preferability requirement was intended to capture the question of whether a class proceeding would be preferable “in the sense of preferable to other procedures such as joinder, test cases, consolidation and so on”: see Report of the Attorney General’s Advisory Committee on Class Action Reform, supra, at p. 32; see also Cochrane, supra, at p. 27; M. A. Eizenga, M. J. Peerless and C. M. Wright, Class Actions Law and Practice (loose-leaf), at para. 3.62 (“[a]s part of the determination with respect to preferability, it is appropriate for the court to review alternative means of adjudicating the dispute which is before it”).  In my view, the preferability analysis requires the court to look to all reasonably available means of resolving the class members’ claims, and not just at the possibility of individual actions.

32          I am not persuaded that the class action would be the preferable means of resolving the class members’ claims.  Turning first to the issue of judicial economy, I note that any common issue here is negligible in relation to the individual issues.  While each of the class members must, in order to recover, establish that the Keele Valley landfill emitted physical or noise pollution, there is no reason to think that any pollution was distributed evenly across the geographical area or time period specified in the class definition.  On the contrary, it is likely that some areas were affected more seriously than others, and that some areas were affected at one time while other areas were affected at other times.  As the Divisional Court noted, “[e]ven if one considers only the 150 persons who made complaints – those complaints relate to different dates and different locations spread out over seven years and 16 square miles” (p. 480).  Some class members are close to the site, some are further away.  Some class members are close to other possible sources of pollution.  Once the common issue is seen in the context of the entire claim, it becomes difficult to say that the resolution of the common issue will significantly advance the action.

33          Nor would allowing a class action here serve the interests of access to justice.  The appellant posits that class members’ claims may be so small that it would not be worthwhile for them to pursue relief individually.  In many cases this is indeed a real danger.  As noted above, one important benefit of class actions is that they divide fixed litigation costs over the entire class, making it economically feasible to prosecute claims that might otherwise not be brought at all.  I am not fully convinced, however, that this is the situation here.  The central problem with the appellant’s argument is that, if it is in fact true that the claims are so small as to engage access to justice concerns, it would seem that the Small Claims Trust Fund would provide an ideal avenue of redress.  Indeed, since the Small Claims Trust Fund establishes a no-fault scheme, it is likely to provide redress far more quickly than would the judicial system.  If, on the other hand, the Small Claims Trust Fund is not sufficiently large to handle the class members’ claims, one must question whether the access to justice concern is engaged at all.  If class members have substantial claims, it is likely that they will find it worthwhile to bring individual actions.  The fact that no claims have been made against the Small Claims Trust Fund may suggest that the class members claims are 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 is not a serious concern.  Of course, the existence of a compensatory scheme under which class members can pursue relief is not in itself grounds for denying a class action – even if the compensatory scheme promises to provide redress more quickly: see Rumley v. British Columbia, [2001] 3 S.C.R. 184, 2001 SCC 69, at para. 38.  The existence of such a scheme, however, provides one consideration that must be taken into account when assessing the seriousness of access-to-justice concerns.

34          For similar reasons I would reject the argument that behaviour modification is a significant concern in this case.  Behavioural modification may be relevant to determining whether a class action should proceed.  As noted in Western Canadian Shopping Centres, supra, at para. 29, “[w]ithout class actions, those who cause widespread but individually minimal harm might not take into account the full costs of their conduct, because for any one plaintiff the expense of bringing suit would far exceed the likely recovery”.  This concern is certainly no less pressing in the context of environmental litigation.  Indeed, Ontario has enacted legislation that reflects a recognition that environmental harm is a cost that must be given due weight in both public and private decision-making: see Environmental Bill of Rights, 1993, S.O. 1993, c. 28, and Environmental Protection Act.  I am not persuaded, however, that allowing a class action here would serve that end.  If individual class members have substantial claims against the respondent, we should expect that they will be willing to prosecute those claims individually; on the other hand if their claims are small, they will be able to obtain compensation through the Small Claims Trust Fund.   In either case, the respondent will be forced to internalize the costs of its conduct. 

35          I would note, further, that Ontario’s environmental legislation provides other avenues by which the complainant here could ensure that the  respondent takes full account of the costs of its actions.  While the existence of such legislation certainly does not foreclose the possibility of environmental class actions, it does go some way toward addressing legitimate concerns about behaviour modification: see Environmental Bill of Rights, 1993, ss. 61(1) (stating that “[a]ny two persons resident in Ontario who believe that an existing policy, Act, regulation or instrument of Ontario should be amended, repealed or revoked in order to protect the environment may apply to the Environmental Commissioner for a review of the policy, Act, regulation or instrument by the appropriate minister”) and 74(1) (stating that “[a]ny two persons resident in Ontario who believe that a prescribed Act, regulation or instrument has been contravened may apply to the Environmental Commissioner for an investigation of the alleged contravention by the appropriate minister”); Environmental Protection Act,  s. 14(1) (stating that “[d]espite any other provision of this Act or the regulations, no person shall discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect”); s. 172(1) (stating that “[w]here a person complains that a contaminant is causing or has caused injury or damage to livestock or to crops, trees or other vegetation which may result in economic loss to such person, the person may, within fourteen days after the injury or damage becomes apparent, request the Minister to conduct an investigation”); and s. 186(1) (stating that “[e]very person who contravenes this Act or the regulations is guilty of an offence”).

36          I conclude that the action does not meet the requirements set out in s. 5(1) of Ontario’s Class Proceedings Act, 1992.  Even on the generous approach advocated above, the appellant has not shown that a class action is the preferable means of resolving the claims raised here. 

37          I should make one note on the scope of the holding in this case.  The appellant took pains to characterize this case as raising the issue of whether Ontario’s Class Proceedings Act, 1992 permits environmental class actions.  I would not frame the issue so broadly.  While the appellant has not met the certification requirements here,  it does not follow that those requirements could never be met in an environmental tort case.  The question of whether an action should be permitted to be prosecuted as a class action is necessarily one that turns on the facts of the case.  In this case there were serious questions about preferability.  Other environmental tort cases may not raise the same questions.  Those cases should be decided on their facts.

38          The appeal is dismissed.  There will be no costs to either party.

Appeal dismissed.

Solicitors for the appellant:  McGowan & Associates, Toronto.

Solicitor for the respondent:  H. W. O. Doyle, Toronto.

Solicitors for the interveners Friends of the Earth, West Coast Environmental Law Association and Canadian Association of Physicians for the Environment:  Sierra Legal Defence Fund, Toronto.

Solicitors for the intervener the Environmental Commissioner of Ontario:  McCarthy Tétrault and David McRobert, Toronto.

Solicitor for the intervener the Law Foundation of Ontario:  Mark M. Orkin, Toronto.