Anderson v. Manitoba, 2017 MBCA 14, Manitoba Court Of Appeal (Hamilton, Mainella And Pfuetzner JJ.A), 25 January 2017

Download the entire Aboriginal Legal Issues e-Newsletter — March 9, 2017.

The Manitoba Court of Appeal reversed a lower court decision refusing the certification of a proposed class action by members of four First Nations relating to the flooding of reserves in 2011. The Court of Appeal held that the certification judge had erred in finding that a class proceeding would not be the preferable procedure for the fair and efficient resolution of the common issues. The Court of Appeal substituted a decision certifying the class proceeding on the issues of nuisance, negligence and breach of treaty rights.

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.


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