Flooding Damage Class Action in Manitoba: The Court of Appeal Comments on Common Issues and Preferability in Anderson v Manitoba

In Anderson v Manitoba,1 the Manitoba Court of Appeal overturned a decision that had denied class certification of a nuisance claim on the basis that some of the claims did not contain common issues and that a class proceeding was not the preferable procedure. In so doing, the Court of Appeal provided guidance regarding the application of the common issues test in nuisance claims, and confirmed the importance of access to justice as a factor in certifying a class action.

Background

The representative plaintiffs in Anderson are members of four First Nations in Manitoba that were affected by flooding in 2011. They allege that the Government of Manitoba's improper operation of a dam and certain other water control structures diverted excess water onto their lands causing extensive property damage and requiring many to be evacuated from their homes. The plaintiffs framed their claims against Manitoba in nuisance, negligence, breach of treaty rights and breach of fiduciary duty.

The Manitoba Court of Queen's Bench found that the claims in negligence and breach of treaty rights contained common issues but that the claims did not have common issues with respect to nuisance and breach of fiduciary duty.2 The certification judge's reasoning was evidently based on his view that many of the members of the proposed class may not have actually been affected by the flooding. As the Court considered that the nuisance claim was an important cause of action to the plaintiffs, the Court reasoned that a class proceeding was not the preferable procedure to resolve the common issues that did exist.

The plaintiffs sought and obtained leave to appeal on the questions of whether the certification judge applied the correct legal test to the question of common issue with respect to nuisance and, if not, whether that error affected his decision on the question of preferability. The plaintiffs succeeded in the appeal with respect to both issues.

The Common Issue Test

According to The Class Proceedings Act (Manitoba),3 claims of the class members must raise a common issue, whether or not the common issue predominates over issues affecting only individual members.4 A "common issue" may relate to common but not necessarily identical issues of fact, or common but not necessarily identical issues of law that arise from common but not necessarily identical facts.5

The certification judge concluded that the question of any interference with the class members' use and...