Hollick v. Toronto (2001), 277 N.R. 51 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2001] N.R. TBEd. OC.029
John Hollick (appellant) v. The 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 The Law Foundation of Ontario (interveners)
(27699; 2001 SCC 68)
Indexed As: Hollick v. Metropolitan Toronto (Municipality) et al.
Supreme Court of Canada
McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.
October 18, 2001.
Summary:
The defendant Municipality of Metropolitan Toronto (Metro) owned and operated the Keele Valley Landfill Site (Keele Valley). The plaintiff Hollick alleged that in operating Keele Valley, Metro wrongfully caused the landfill to emit “toxic gases, obnoxious odours, fumes, smoke and airborne, bird-borne or air-blown sediment, particulates, dirt and litter” and “loud noises and strong vibrations”. Hollick moved for certification of this action as a class action respecting the following classes: (1) nearby residents affected by the operation of Keele Valley; and (2) all living parents, grandparents, children, grandchildren, siblings and spouses (within the meaning of s. 61 of the Family Law Act) of the above-mentioned residents, or, if such relative was deceased, his personal representative.
The Ontario Court (General Division), in a decision reported at 63 O.T.C. 163, allowed the motion in part. The action was certified respecting the nearby residents of Keele Valley but not their relatives within the meaning of s. 61 of the Family Law Act. Toronto appealed the certification of the action. Hollick cross-appealed.
The Ontario Divisional Court, in a decision reported 116 O.A.C. 108, allowed the appeal and dismissed the cross-appeal. Hollick appealed.
The Ontario Court of Appeal, in a decision reported 127 O.A.C. 369, dismissed the appeal. Hollick appealed.
The Supreme Court of Canada dismissed the appeal.
Editor’s Note: for a related case see 63 O.T.C. 161.
Practice – Topic 209
Persons who can sue and be sued – Individuals and corporations – Status or standing – Class actions – General principles – The Supreme Court of Canada stated that the legislative history of the Class Proceedings Act (Ont.) made clear that the Act should be construed generously – See paragraph 14.
Practice – Topic 209.3
Persons who can sue and be sued – Individuals and corporations – Status or standing – Class actions – Certification – Considerations (incl. when class action appropriate) – One of the certification requirements set out in s. 5(1)(b) of the Class Proceedings Act (Ont.) was that there was an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant – The Supreme Court of Canada stated that implicit in the identifiable class requirement was the requirement that there be some rational relationship between the class and common issues – The representative need not show that
everyone
in the class shared the same interest in the resolution of the asserted common issue – There had to be some showing, however, that the class was not
unnecessarily
broad – that is, that the class could not be defined more narrowly without arbitrarily excluding some people who shared 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 paragraphs 20 and 21.
Practice – Topic 209.3
Persons who can sue and be sued – Individuals and corporations – Status or standing – Class actions – Certification – Considerations (incl. when class action appropriate) – One of the certification requirements set out in s. 5(1)(d) of the Class Proceedings Act (Ont.) was that a class proceeding would be the preferable procedure for the resolution of the common issues – The Supreme Court of Canada stated 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 paragraph 27.
Practice – Topic 209.3
Persons who can sue and be sued – Individuals and corporations – Status or standing – Class actions – Certification – Considerations (incl. when class action appropriate) – Toronto owned and operated the Keele Valley Landfill Site – The plaintiff Hollick sought to have his action for, inter alia, interference with his use and enjoyment of his property by the landfill certified as a class proceeding – A motions judge allowed the motion – The proposed class was 30,000+ persons occupying land in a 16 square mile area – The Ontario Divisional Court allowed Toronto’s appeal – The Ontario Court of Appeal dismissed Hollick’s appeal – The Supreme Court of Canada dismissed Hollick’s appeal – Hollick satisfied several of the certification requirements under s. 5(1) of the Class Proceedings Act (Ont.): his statement of claim disclosed a cause of action, there was an identifiable class, and the class members’ claims raised common issues – However, a class proceeding was not the preferable means of resolving these class members’ claims (s. 5(1)(d)) – See paragraphs 17 to 36.
Practice – Topic 209.7
Persons who can sue and be sued – Individuals and corporations – Status or standing – Class actions – Certification – Evidence and proof – The Supreme Court of Canada considered the extent to which a class representative should be allowed or required to introduce evidence in support of a certification motion – The class representative should come forward with sufficient evidence to support certification and the opposing party should be given an opportunity to respond with evidence of its own – The class representative should show some basis in fact for each of the certification requirements set out in s. 5 of the Class Proceedings Act (Ont.) (other than the requirement that the pleadings disclose a cause of action) – See paragraphs 22 to 25.
Cases Noticed:
Rylands v. Fletcher (1868), L.R. 3 H.L. 330; 37 L.J. Ex. 161, refd to. [para. 7].
Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1; 27 C.P.C.(4th) 172 (Gen. Div.), refd to. [para. 9].
Western Canadian Shopping Centres Inc. et al. v. Dutton et al. (2001), 286 A.R. 201; 272 N.R. 135 (S.C.C.), refd to. [para. 14].
Caputo et al. v. Imperial Tobacco Ltd. et al. (1997), 40 O.T.C. 30; 34 O.R.(3d) 314 (Gen. Div.), refd to. [para. 16].
Webb v. K-Mart Canada Ltd. et al. (1999), 107 O.T.C. 373; 45 O.R.(3d) 389 (S.C.), refd to. [para. 21].
Mouhteros v. DeVry Canada Inc. (1998), 70 O.T.C. 138; 41 O.R.(3d) 63 (Gen. Div.), refd to. [para. 21].
Taub v. Manufacturers Life Insurance Co. (1998), 40 O.R.(3d) 379 (Gen. Div.), refd to. [para. 24].
Abdool v. Anaheim Management Ltd. (1995), 21 O.R.(2d) 453 (Div. Ct.), refd to. [para. 27].
Rumley et al. v. British Columbia (2001), 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1 (S.C.C.), refd to. [para. 33].
Statutes Noticed:
Class Proceedings Act, S.O. 1992, c. C-6, sect. 5(1), sect. 6 [para. 11].
Authors and Works Noticed:
Branch, Ward K., Class Actions in Canada (1998), § 4.205 [para. 21]; 4.690 [para. 29].
Cochrane, Michael G., Class Actions: A Guide to the Class Proceedings Act, 1992 (1993), p. 27 [para. 30].
Eizenga, Michael A., Peerless, Michael J., and Wright, Charles M., Class Actions Law and Practice (Looseleaf), § 3.62 [para. 31].
Friedenthal, Jack H., Kane, Mary K., and Miller, Arthur R., Civil Procedure (2nd Ed. 1993), pp. 726, 727 [para. 17].
Ontario (Attorney General), Attorney General’s Advisory Committee on Class Action Reform, Report of (1990), pp. 30 [para. 16]; 31 [paras. 16, 25]; 32 [paras. 16, 28, 31]; 33 [paras. 16, 22].
Ontario, Law Reform Commission, Report on Class Actions (1982), vols. 1, pp. 117 to 145 [para. 15]; 2, pp. 422 to 426 [para. 22].
Counsel:
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.
Solicitors of Record:
McGowan & Associates, Toronto, Ontario, for the appellant;
H. W. O. Doyle, Toronto, Ontario, for the respondent;
Sierra Legal Defence Fund, Toronto, Ontario, for the interveners, Friends of the Earth, West Coast Environmental Law Association and Canadian Association of Physicians for the Environment;
McCarthy Tétrault and David McRobert, Toronto, Ontario, for the intervener, the Environmental Commissioner of Ontario;
Mark M. Orkin, Toronto, Ontario, for the intervener, the Law Foundation of Ontario.
This appeal was heard on June 13, 2001, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.A., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada, was delivered in both official languages on October 18, 2001, by McLachlin, C.J.C.
