Download the entire Aboriginal Legal Issues e-Newsletter — March 9, 2017.
The plaintiffs are members of the Pinaymootang First Nation (formerly known as the Fairford River Nation), the Lake St. Martin First Nation, the Little Saskatchewan First Nation and the Dauphin River First Nation. These First Nations are all located along the waterways between Lake Manitoba and Lake Winnipeg. The plaintiffs claim damage from flooding that occurred on the reserves in 2011. They allege that the flood was caused by Manitoba while exercising its water control functions during the spring and summer of 2011. In particular, they claim that the operation of the Shellmouth Dam, the Portage Diversion, and the Fairford Dam caused massive amounts of water to be diverted into Lake Manitoba. The claim against Manitoba in this respect was based upon three causes of action: (1) negligence; (2) nuisance and (3) breach of treaty.
In December 2014, the certification judge (Dewar J.) held that a class action was not a preferable procedure, and declined to certify the class action. The decision of the certification judge (indexed at 2014 MBQB 255) was summarized in our e-Newsletter of 24 March 2015.
The earlier decision was based largely on the certification judge's conclusion that there was no "common issue" in relation to the plaintiffs' nuisance claim due to the individual nature of such claims. Dewar J. concluded that the plaintiffs experienced the flooding in different ways, and that success on this common issue therefore would not mean success for all members of the proposed class. Since one of the main claims brought by the plaintiffs (nuisance) did not give rise to a common issue, then a class action was not the preferable procedure. Certifying only parts of other causes of action (like nuisance and breach of treaty) would mean that the nuisance claim would still have to be decided. There would not be much saving in time or expense.
In December 2015, the Manitoba Court of Appeal granted leave to appeal (2015 MBCA 123) on the following questions:
- Did the certification judge apply the correct legal test to the question of common issue with respect to nuisance?
- If he did so err, did that impact his decision on the question of preferability?
The appeal was allowed on this basis. The Court of Appeal held that the certification judge failed to apply the correct legal test in determining whether there was a common issue in nuisance.
Manitoba's Class Proceedings Act provides that the court must certify a class action if various criteria are met, including that the claims raise a common issue. Pfeutzner J.A. also referred to section 7(a) of the Act which provides that the Court must not refuse to certify a proceeding because the relief claimed includes a claim for damages that would require individual assessment.
The Court of Appeal held that the certification judge erred in his analysis of the nuisance claim:
In my view, the certification judge did not apply the correct test for determining the existence of a common issue. He failed to consider the actual question posed, which is focused on the actions of Manitoba, and whether those actions caused the flooding event in the waterway. Instead, he considered whether there was sufficient commonality in the effects of the flooding on each member of the proposed class of plaintiffs. Those considerations are relevant to the other two questions in nuisance, which relate to interference with each plaintiff's individual use and enjoyment of property and whether it was unreasonable... However, they are not relevant to the proposed question at issue in this appeal.
The certification judge should have considered whether resolution of the proposed question is necessary to the resolution of each class member's claim, and whether the issue is a substantial ingredient to each claim. The certification judge effectively refused to certify the action on the basis that individual assessments of damages would be required, which is contrary to s. 7(a) of the Act.
The Court of Appeal held that a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues. The addition of nuisance as a common issue would tilt the balance in favour of certification on the basis of judicial economy.
The Court of Appeal therefore allowed the appeal, and ordered that the issues relating to nuisance, negligence and breach of treaty rights be certified as a class proceeding. There was no order as to costs.