When Common Issues Ain't So Common: Decertification Of Class Actions

"I've found that common sense ain't so common" - Mark Twain

Twain's words are probably true today and there doesn't seem to be much we can do about it. However, Justice R. Smith recently held, to borrow Twain's adage, "I've found that common issues ain't so common" and decided there was something he could do about it: decertify. While Smith J. didn't actually quote Twain in Plaunt v. Renfrew Power Generation Inc., 2017 ONSC 1868, he did conclude that new evidence, obtained post-certification, demonstrated that the claims for trespass were dominated by individual issues and a class action was no longer the preferable procedure for resolving those claims. Plaunt offers some insight into a rarely litigated provision of the Class Proceedings Act ("CPA").1

Facts

Plaunt was an environmental trespass class action commenced on behalf of 400 cottage owners with property abutting Round Lake in Ontario. The class claimed that Renfrew Power Generation Inc. ("RPG") was trespassing on class members' land by storing water on their property as the defendants' activities had eroded their shorelines and raised water levels. The class was certified on the basis of a fixed dividing line between public and private lands created in 1917 - the 107.5 Contour Line. The plaintiff argued any encroachment of water past that line constituted trespass.2

The certification judge understood that the Contour Line affected all of the class members' property and was a reference point for each class members' property line. Determining whether the Contour Line created a boundary between public and private lands or was only a flooding easement would have affected all class members and moved their action forward in a substantial manner. The parties presented little or no evidence of deeds of land or surveys showing the boundary of class members' lands at the certification motion. Both parties then retained surveyors to obtain evidence and prepare expert reports on the legal descriptions and boundaries of the class members' property.3

RPG's expert found that not all of the class members' lands were affected by the Contour Line for several reasons: some lands around the lake were subsequently acquired without reference to the Contour Line; for certain properties, flooding rights were determined not with reference to the Contour line, but a 66 foot road allowance; and many categories of class members' property boundaries were not defined by reference to the Contour Line.

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