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Canadian Class Actions Monitor

Individual Issues Overwhelm Common Issues in a Nuisance Claim

Posted in Class Actions
Patrick Williams

In Baker v. Rendle, 2017 BCCA 72, the British Columbia Court of Appeal upheld the lower court’s decision denying class certification of a nuisance claim. The Court found that a class proceeding was not a preferable procedure because resolving the proposed common issues would not have significantly advanced the action. The Court’s analysis is specific to claims in nuisance, but suggests that nuisance claims are not suitable for certification unless the defendant’s conduct has a near-uniform impact on the class members.

The Rendles obtained a permit to operate a composting business on their farm and thereafter began to import and compost food waste from the surrounding area. Complaints related to the noise and odours generated by the composting operation soon followed. Mr. Baker, who resides on land adjacent to the farm, brought a claim for nuisance. He sought certification as a class proceeding on behalf of other residents in the area.

For a unanimous Court, Justice Garson refused to certify the claim on the basis that a class proceeding was not a preferable procedure as required by s. 4(1)(d) of the Class Proceedings Act.

Justice Garson began by reviewing the elements of the tort of nuisance: A plaintiff must prove a substantial and unreasonable interference with his or her use and enjoyment of property. As a result, nuisance claims focus on the impact on the plaintiff as opposed to the defendant’s conduct. The common issues proposed by Mr. Baker did just the opposite.

The most relevant common issue asked the Court to determine the extent of the Rendles’ conduct. However, Justice Garson held that the Rendles’ conduct could not be meaningfully considered in isolation from its impact on each of the proposed class members and therefore accepted that the analysis of the Rendles’ liability would be inherently individual. On that basis, Justice Garson held that resolving the common issues would not significantly advance the action and that a class proceeding was therefore not a preferable procedure.

The Baker case is an example of the inherent challenges with nuisance claims for the certification process. That said, nuisance cases have been certified where it was shown that the question of substantial interference could be determined on a generic, not an individual basis: see for example Gautam v. Canada Line Rapid Transit, 2011 BCCA 275.