Traditional environmental law torts of strict liability, nuisance, trespass, and negligence, particularly for historical contamination, are difficult to certify as class actions for both procedural and substantive law reasons.
After a long and complex history, only one case that has been certified was argued on the merits. Smith v. Inco Ltd., which related to the Inco refinery’s operations in Port Colborne, Ontario, was successful at trial, but lost on appeal. A small number of other cases have been certified as class actions, but remain outstanding or have settled. The vast majority of prospective class action claims do not get certified and cannot proceed at all (see for example the most recent certification motion to be overturned on appeal: Canada v. MacQueen).
Using the class action process for any type of claim is intended to allow for large numbers of individual claimants, similarly situated with common issues, to bring forward a claim that, on its own, may not have significant damages; but as a collective of claimants, the damages are significant enough to warrant the action and may cause future behavioural change by the defendant or others.
So where are we heading? Some approaches to righting environmental wrongs may be found in product liability cases, securities claims, or constitutional law claims.
Siskinds LLP has initiated a class action claim against Syngenta and Bayer, for example, on behalf of beekeepers, claiming that the manufacturers of neonicotinoid pesticides were negligent and caused significant losses to beekeepers in Ontario.
Siskinds has also initiated a proposed class action on behalf of shareholders against Imperial Metals Corporation under securities legislation in relation to a significant failure of the tailing ponds facilities at the Mount Polley gold and copper mine in British Columbia, on August 4, 2014.
South of the border, the citizens of Flint, Michigan initiated a class action against various government actors, claiming a breach of their 14th Amendment Rights regarding life, liberty, and property, for the severely compromised and dangerous water they were allegedly subjected to, beginning April 2014.
As the law evolves and is tested in the courts, counsel and individuals who have been wronged by environmental harms will continue to bring forward class actions to address those wrongs.