Kirk v. Executive Flight Centre Fuel Services

摘要

Selection Note: After a certification order was significantly restricted on appeal, the applications judge held that the proposed class action was still the preferable mechanism for addressing the remaining common issues of fact and law arising from a spill of aviation fuel. Environmental law-Liability for environmental harm - Nuisance - Practice and procedure - Private nuisance-Plaintiff brought action in negligence, nuisance, and rule in Rylands v. Fletcher after truck flipped and spilled 35,000 litres of jet fuel into creek - Chambers judge granted application for certification as class proceeding and certified common issues - Court of Appeal struck or amended several common issues on appeal, while some were returned to chambers judge for further consideration - Three common issues relating to nuisance claim, aggregate damages in nuisance, and Rylands v. Fletcher claim were amended and certified - Common issue as initially framed could not move nuisance claim forward - Evaluation of propensity for harm is different from and irrelevant to evaluation of actual loss, and could not meet "non-trivial interference" standard required to ground liability in nuisance -Legally pertinent question was not whether orders constituted "significant impediment" to "availability and access", it was whether fact of orders impacted class members' rights to use and enjoyment such that orders substantially and unreasonably interfered with that use and enjoyment - Common issue relating to nuisance claim amended to read, "Did the fact of the resulting evacuation and water advisory amount to nontrivial and unreasonable interference with class members' use and enjoyment of the affected properties?" - Criteria under s. 29 of Class Proceedings Act need only be met to award aggregate damages, not to certify them as common issue - If plaintiff succeeded in establishing liability in nuisance, appropriateness and amount of aggregate damages would be in issue - Issue of aggregate damages in nuisance amended to ask, "Can a part of the Class Members' damages in nuisance be assessed in the aggregate pursuant to s. 29? If so, in what amount?".