QL Home > Recent Decisions > LAW/NET™ Legal Update Service

LAW/NET™ Legal Update Service

Case Name:
Bryson v. Canada (Attorney General)

About Quicklaw Between

Charles Bryson and Donald Murrin, Plaintiffs, and
What's New
The Attorney General of Canada, Defendant, and
The Dow Chemical Company and Pharmacia Corporation, Third
Customer Service
Parties
Obtain Account
[2009] N.B.J. No. 237
Academic Accounts 2009 NBQB 204
Court File No. MC040506
Recent Decisions
New Brunswick Court of Queen's Bench
Trial Division - Judicial District of Moncton
S.J. McNally J.

Heard: December 8-12, 2008.

Judgment: July 23, 2009.
(97 paras.)

Counsel:

For the Plaintiffs, Charles Bryson and Donald Murrin: Howard A. Spalding,
Q.C., Talia C. Profit, Nathalie Maude and Clint Docken.

For the Defendant, Attorney General of Canada: John Spencer, William A.

Knights, Victor J. Paolone, Roslyn Mounsey and Christian Michaud.

For the Third Party, The Dow Chemical Company: Allan Mark, Thomas G.
O'Neill, Q.C. and Michael Brown.

For the Third Party, Pharmacia Corporation: Ivan G. Whitehall, Q.C., Robert
G. Vincent Q.C., Christian Monnin and Alyssa Tomkins.

DECISION MOTION FOR CERTIFICATION

OF A CLASS PROCEEDING

S.J. McNALLY J.:—

INTRODUCTION & OVERVIEW

¶1 The plaintiffs, Charles Bryson and Donald Murrin, apply for

certification of a proposed class proceeding against the Attorney General of
Canada in which they allege that they and other proposed class members
suffered injuries, losses and damages as a result of the application of
herbicides by or on behalf of the Department of National Defence at its
Canadian Forces Military Base located at Gagetown, New Brunswick ("Base
Gagetown") from the year 1956 to the present.

¶2 The plaintiff, Bryson, filed this action on June 14, 2006 under the
common law and pursuant to Rule 14.01 of the Rules of Court. The action
was amended on May 30, 2007 to be continued under and in anticipation of
the proclamation of the Class Proceedings Act, S.N.B. 2006, c. C-5.15 (the
"CPA") which occurred on June 30, 2007. The defendant filed Third Party
proceedings on December 17, 2007 against The Dow Chemical Company and
Pharmacia Corporation, producers of some of the chemicals allegedly sprayed
at the Base. Donald Murrin was added as a representative plaintiff and the
action was further amended by Amended Notice of Action with Fourth
Amended Statement of Claim Attached on October 28, 2008. The certification
motion was heard from December 8 to 12, 2008.

¶3 The plaintiffs' claim identifies some 74 different defoliants, herbicides

and pesticides that they allege were sprayed or applied at Base Gagetown
over the past 53 years which they allege are, and they have labeled as, "Toxic
Chemicals". The plaintiffs seek on their own behalf and on behalf of proposed
class members, damages for personal injury, injury to property, future costs
of medical monitoring, and aggravated and punitive damages, allegedly
caused by exposure to these substances. They identify a panoply of diseases,
health problems and conditions allegedly caused by or related to exposure to
the toxic chemicals. These include various cancers, neurological conditions,
cardiovascular disease, spina bifida and diabetes, to name but a few.

FACTUAL BACKGROUND AS PLEADED BY THE PLAINTIFFS

¶4 In this proceeding the plaintiffs allege, inter alia, that:

 In 1952, the Canadian Armed Forces Base at CFB Gagetown
(a) opened and areas of forestation were manually and
mechanically cleared to allow for building of the site. In
1956, the defendant commenced a spray program to control
vegetation and forest in and around the Base, using Toxic
Chemicals which were applied via ground and aerial
programs.
Between the years 1956 and 1984, 181,038 acres were
(b) sprayed with 6,504 barrels of Toxic Chemicals (1,328,767
liters). In 1965, the defendant switched the spraying
application method of the Toxic Chemicals from fixed wing
aircraft to helicopter.
During the years 1966 and 1967, the defendant conducted
(c) tests and various Toxic Chemicals were used, sprayed,
tested or otherwise applied including six varieties
containing, 2, 4, 5-T and nine varieties containing Picloram.
Also during the years 1966 and 1967, the defendant
authorized the military forces of the United States of
America to conduct testing, allowing them to emit Agents
Orange, Purple and White as well as other Toxic chemicals
in and around the Base.
Between the years 1967 and 1984 the herbicide Tordon was
(d) used, sprayed, tested or otherwise applied in and around
the Base by the Defendant. In 1985, personnel with the
Canadian Forces briefed members of the New Brunswick
Cabinet on the use, spraying, testing or other application of
Toxic Chemicals at the Base. Major Michael Rushton advised
the Cabinet that the Canadian Government knew of and
was concerned by the dioxin in 2, 4, 5-T as far back as
1964.
The Plaintiffs submit that at all material times from January
(e) 1, 1956 up to and including the present day, the Defendant
used, sprayed, tested or otherwise applied, or allowed the
use, spraying, testing, or application of Toxic Chemicals at
the Base.
Until June 2005, when officials from the Defendant held the
(f) first public briefing in 30 years on the spraying of Toxic
Chemicals at the Base, the Plaintiffs and Class Members
were effectively unaware of the nature, extent and
ramifications of exposure to the Toxic Chemicals in and
around the Base.
As a result of the use, testing, spraying, or other
(g) applications of the Toxic Chemicals at the Base, the
Plaintiffs and Class Members submit that they have
suffered, continue to suffer and/or have died from
numerous health problems as a result of the exposure to
the Toxic Chemicals. The use, spraying, testing or other
application of the Toxic Chemicals has also caused the Class
Members to suffer and continue to suffer from property
damage and loss due to exposure to the Toxic Chemicals.
On August 15, 2005, the Defendant announced its plan to
(h) conduct a Fact-finding project regarding the spraying of
chemicals at the Base.
On August 27, 2007 the "CFB Gagetown Herbicide Spray
(i) Programs 1952-2004 Fact-Finder's Report" was completed
by Dr. Dennis Furlong. Various other reports had been
prepared during that time as part of the Fact-Finder's study.
In September 2007 a one-time, tax-free ex gratia payment
(j) of $20,000 was announced by the defendant. This payment
was for testing of unregistered military herbicides, including
Agent Orange, at the Base in 1966 and 1967.
The plaintiffs, Charles Bryson and Donald Murrin, as well as
(k) numerous other Class Members suffer trademark illnesses
associated with exposure to the Toxic Chemicals emitted at
the Base. The plaintiff, Donald Murrin, was diagnosed with
soft tissue sarcoma and has applied to be appointed as the
Representative Plaintiff for the class in the present action.

OBJECTIVES OF CLASS PROCEEDINGS & APPLICABLE LAW

¶5 The plaintiffs' action was originally brought prior to proclamation of

the Class Proceedings Act. In Western Canadian Shopping Centers Inc.
v. Dutton [2001] 2 S.C.R. 534 (S.C.C.) the Supreme Court of Canada ruled
that although class proceedings legislation removes many of the procedural
impediments to a class action, such actions could nevertheless be
accommodated in the absence of a legislative framework under provincial
rules of procedure and the court's "inherent power to settle the rules of
practice and procedure as to disputes brought before them". In addition to
addressing this procedural issue, Chief Justice McLachlin, writing for the
Court, also set out in that case the practical advantages of class proceedings
at paragraphs 26 to 29:

26 The class action plays an important role in today's world.

The rise of mass production, the diversification of corporate
ownership, the advent of the mega-corporation, and the
recognition of environmental wrongs have all contributed to its
growth. A faulty product may be sold to numerous consumers.
Corporate mismanagement may bring loss to a large number of
shareholders. Discriminatory policies may affect entire categories
of employees. Environmental pollution may have consequences
 for citizens all over the country. Conflicts like these pit a large
group of complainants against the alleged wrongdoer.
Sometimes, the complainants are identically situated vis-à-vis
the defendants. In other cases, an important aspect of their claim
is common to all complainants. The class action offers a means of
efficiently resolving such disputes in a manner that is fair to all
parties.
27 Class actions offer three important advantages over a
multiplicity of individual suits. First, by aggregating similar
individual actions, class actions serve judicial economy by
avoiding unnecessary duplication in fact-finding and legal
analysis. The efficiencies thus generated free judicial resources
that can be directed at resolving other conflicts, and can also
reduce the costs of litigation both for plaintiffs (who can share
litigation costs) and for defendants (who need litigate the
disputed issue only once, rather than numerous times): see W.K.
Branch, Class Actions in Canada (1998), at para. 3.30; M.A.
Eizenga, M.J. Peerless and C. M. Wright, Class Actions Law and
Practice (1999), at para. 1.6; Bankier, supra, at pp. 230-31;
Ontario Law Reform Commission, Report on Class Actions (1982),
at pp. 118-19.
28 Second, by allowing fixed litigation costs to be divided over
a large number of plaintiffs, class actions improve access to
justice by making economical the prosecution of claims that
would otherwise be too costly to prosecute individually. Without
class actions, the doors of justice remain closed to some
plaintiffs, however strong their legal claims. Sharing costs
ensures that injuries are not left unremedied: see Branch, supra,
at para. 3.40; Eizenga, Peerless and Wright, supra, at para. 1.7;
Bankier, supra, at pp. 231-32; Ontario Law Reform Commission,
supra, at pp. 119-22.
29 Third, class actions serve efficiency and justice by ensuring
that actual and potential wrongdoers do not ignore their
obligations to the public. Without class actions, those who cause
widespread but individually minimal harm might not take into
account the full costs of their conduct, because for any one
plaintiff the expense of bringing suit would far exceed the likely
recovery. Cost-sharing decreases the expense of pursuing legal
recourse and accordingly deters potential defendants who might
otherwise assume that minor wrongs would not result in
litigation: see "Developments in the Law -- The Paths of Civil
Litigation: IV. Class Action Reform: An Assessment of Recent
Judicial Decisions and Legislative Initiatives" (2000), 113 Harv. L.
Rev. 1806, at pp. 1809-10; see Branch, supra, at para. 3.50;
Eizenga, Peerless and Wright, supra, at para. 1.8; Bankier,
supra, at p. 232; Ontario Law Reform Commission, supra, at pp.
11 and 140-46.

¶6 In Hollick v. Toronto (City), [2001] 3 S.C.R. 158 (S.C.C.) the

plaintiff brought an action as the representative of some 30,000 residents
who lived in the vicinity of a city landfill site against the City of Toronto for
damages for noise and physical pollution from the site. Certification of the
action was granted at first instance but was overturned by the Divisional
Court on the basis that the plaintiff had not stated an identifiable class and
had not satisfied the commonality requirement. This decision was sustained
by the Ontario Court of Appeal.

¶7 On further appeal, the Supreme Court of Canada found that the

plaintiff had established the existence of an identifiable class within the
meaning of section 5(1)(b) of the Act and the commonality requirement under
section 5(1)(c) -- (section 5 of the Ontario legislation is comparable to section
6 of the New Brunswick statute). Nevertheless, the Court dismissed the
appeal on the basis that a class proceeding was not the preferable procedure
in the circumstances of that case. Again, Chief Justice McLachlin delivered the
judgment of the Court. At paragraph 15 of the decision she noted that "The
Act reflects an increasing recognition of the important advantages that the
class action offers as a procedural tool" and that it "... is essential therefore
that courts not take an overly restrictive approach to the legislation, but
rather interpret the Act in a way that gives full effect to the benefits foreseen
by the drafters".

¶8 The Chief Justice also addressed the burden of proof and evidentiary
threshold issues in class proceedings at paragraphs 24 & 25:

24 In Taub v. Manufacturers Life Insurance Co. (1998), 40

O.R. (3d) 379 (Gen. Div.), the representative sought to bring a
class action on behalf of the residents in her apartment building,
alleging that mould in the building was exposing the residents to
health risks. The representative provided no evidence, however,
suggesting that the mould had been found anywhere but in her
own apartment. The court wrote (at pp. 380-81) that "the CPA
requires the representative plaintiff to provide a certain minimum
evidentia[ry] basis for a certification order" (emphasis added).
While the Class Proceedings Act, 1992 does not require a
preliminary merits showing, "the judge must be satisfied of
certain basi[c] facts required by s. 5 of the CPA as the basis for a
certification order" (p. 381).
25 I agree that the representative of the asserted class must
show some basis in fact to support the certification order. As the
court in Taub held, that is not to say that there must be affidavits
 from members of the class or that there should be any
assessment of the merits of the claims of other class members.
However, the Report of the Attorney General's Advisory
Committee on Class Action Reform clearly contemplates that the
class representative will have to establish an evidentiary basis for
certification: see Report, at p. 31 ("evidence on the motion for
certification should be confined to the [certification] criteria").
The Act, too, obviously contemplates the same thing: see s. 5(4)
("[t]he court may adjourn the motion for certification to permit
the parties to amend their materials or pleadings or to permit
further evidence"). In my view, the class representative must
show some basis in fact for each of the certification requirements
set out in s. 5 of the Act, other than the requirement that the
pleadings disclose a cause of action. That latter requirement is of
course governed by the rule that a pleading should not be struck
for failure to disclose a cause of action unless it is "plain and
obvious" that no claim exists: see Branch, supra, at para. 4.60.

¶9 Section 6 of New Brunswick's Class Proceedings Act sets out the

criteria to be considered on a motion for certification of a class proceeding. It
provides:

The court shall certify a proceeding as a class proceeding on

6(1) a motion under section 3 or 4 if, in the opinion of the court,

the pleadings disclose or the Notice of Application

(a) discloses a cause of action,
there is an identifiable class of 2 or more persons,
(b)
the claims of the class members raise a common issue,
(c) whether or not the common issue predominates over
issues affecting only individual members,
a class proceeding would be the preferable procedure
(d) for the fair and efficient resolution of the dispute, and
there is a person seeking to be appointed as
(e) representative plaintiff for the class who

(i) would fairly and adequately represent the interests

of the class,
(ii) has produced a plan for the class proceeding that
sets out a workable method of advancing the class
proceeding on behalf of the class and of notifying
class members of the class proceeding, and
does not have, with respect to the common issues,
(iii) an interest that is in conflict with the interests of
other class members.

In determining whether a class proceeding would be the

6(2) preferable procedure for the fair and efficient resolution of
the dispute, the court shall consider

whether questions of fact or law common to the class

(a) members predominate over any questions affecting only
individual members,
whether a significant number of the class members
(b) have a valid interest in individually controlling the
prosecution of separate proceedings,
whether the class proceeding would involve claims that
(c) are or have been the subject of any other proceedings,
whether other means of resolving the claims are less
(d) practical or less efficient,
whether the administration of the class proceeding
(e) would create greater difficulties than those likely to be
experienced if relief were sought by other means, and
any other matter the court considers relevant.
(f)
¶ 10 The defendant and the third parties submit that this case meets none
of the five certification requirements enumerated in section 6 of the Class
Proceedings Act. It should be noted that although the Attorney General
joined Dow and Pharmacia as third parties to this proceeding, they combined
their efforts in opposition to the motion for certification. In doing so, however,
they divided the issues between them so as to avoid duplication in evidence
and presentation. For the purposes of this motion they each adopt the others'
respective positions on the individual issues each of them has addressed.
When I refer to one of these parties positions, in effect, I am referring to all
of their positions on the particular issue being addressed.

Preliminary Motion Re: Opinion Evidence of Dr. Sears

¶ 11 At the outset of the hearing of the certification motion, counsel for

the defendant moved to strike the affidavits of Dr. Margaret Sears that were
filed in support of the plaintiffs' motion for certification. They argued that her
affidavits were inadmissible as they constituted expert opinion evidence in
medical/scientific fields in which Dr. Sears did not possess the requisite
expertise. The third parties joined in the defendant's motion to exclude Dr.
Sears' affidavits. The parties were content with a conditional admission of
these affidavits for the hearing with my decision on their ultimate
admissibility being deferred to my decision on the motion.

¶ 12 By her affidavits, Dr. Sears purports to offer an "environmental

medical perspective" regarding the chemicals allegedly used at Base Gagetown
and to offer opinions on the associations or links of these chemicals to medical
conditions that are the subject of the proposed class action. She attaches to
her affidavit various articles and publications of other authors and researchers
in support of her opinions.

¶ 13 A party seeking to admit expert opinion evidence must satisfy four

preconditions to its admissibility: a) that the proffered opinion evidence is
relevant; b) that it is necessary to assist the Court; c) that it is tendered by a
properly qualified expert (i.e. a witness who is shown to have acquired special
or peculiar knowledge through study or experience in respect of the matters
on which he or she undertakes to testify); and d) that it is not subject to an
exclusionary rule -- R. v. Mohan, [1994] 2 S.C.R. 9 (S.C.C.).

¶ 14 In Risorto v. State Farm Mutual Automobile Insurance Co.,

[2007] O.J. No. 676 (S.C.J.) Cullity, J. held that although the Court is not
called upon to ultimately decide the merits of the expert evidence on a
certification motion, a properly qualified expert is nevertheless a precondition
to admitting expert opinion evidence on such a motion. At paragraph 53 of
the decision he said:

I am in complete agreement with the opinion of Nordheimer, J. in

Liberty Mutual that it is not the function of a court on a
certification motion to make decisions on the merits of the
evidence of experts. Such decisions are for the trial judge.
However, before even a motions court can place any weight, for
any purpose, on opinions presented as expert evidence, it must
be satisfied that the deponent has sufficient knowledge of the
subject on which he undertakes to testify: Sopinka Lederman
Bryant, The Law of Evidence in Canada (3rd edition, 1999), para.
12.41. Without such knowledge, the expertise that is a condition
of admissibility will be lacking.

¶ 15 In White v. Merck Frosst Canada, [2004] O.J. No. 623 (S.C.J.),

Winkler, J., as he then was, stated:

It is trite law that if a party intends to rely on an expert opinion

on a motion, that party must file an affidavit sworn by the
expert, or another expert adopting that opinion as his or her
own. A party to a motion cannot rely on an expert report
appended to the affidavit of a non-expert.

¶ 16 By her affidavits, Dr. Sears purports to offer expert opinion evidence

relating to the fields of epidemiology, toxicology, immunology and
endocrinology. Dr. Sears has a Ph.D. in chemical engineering which she
acquired in 1985. The evidence filed on this motion establishes that Dr.
Sears:

has acquired no academic qualifications or degrees in the

a. fields of epidemiology, toxicology, immunology or
endocrinology;
does not have a degree in medicine;
b.
did no work or study in the fields of epidemiology,
c. toxicology, immunology or endocrinology as part of her
undergraduate or graduate studies;
has not taken any academic course in oncology,
d. immunology or endocrinology;
advised a Senate Standing Committee in December 2002
e. that she was not an expert in toxicology;
has published no articles on the subjects of oncology,
f. immunology or endocrinology in a peer reviewed academic
journal.

¶ 17 Dr. Sears did conduct research and produced copies of various

articles and papers prepared by other authors that related to these medical or
scientific fields and she attached them to her affidavits filed in these
proceedings. Dr. Sears has significant experience in this type of work and has
conducted medical research in the past in conjunction with or under the
direction of medical professionals. However, she has no specific expertise in
the fields of epidemiology, toxicology, immunology and endocrinology. Upon
review of the materials filed in this motion, neither Dr. Sears nor the plaintiffs
have established that she possesses the requisite knowledge or qualifications
to adopt or comment on the views expressed in the articles and publications
of the other researchers or authors that she has attached to her affidavits. In
such circumstances, her affidavits and opinions do not meet the test of
admissibility for expert opinion evidence. Accordingly, they are not admissible
in these proceedings and are struck from the record.

¶ 18 Counsel for the defendants and the third parties also submitted that
Dr. Sears reports should not be admitted as they alleged that her opinions
were biased and driven by some personal agenda of her own. In my view,
such allegations have not been established by the evidence and I have not
been persuaded that Dr. Sears was not genuine in her intent to comment
fairly on the materials she produced. I am satisfied, however, that it was not
demonstrated that she possessed the necessary qualifications to do so and
that any of the alleged deficiencies in her opinions were more likely a result
of insufficient expertise in the field than a conscious effort on her part to
promote a personal agenda.

¶ 19 The defendant and third parties also objected to the admission of Dr.
Richard W. Clapp's affidavit that was filed by the plaintiff's in support of the
motion. Dr. Clapp is an epidemiologist specializing in epidemiology and public
health with a focus on cancer and other diseases caused by toxic chemicals
and other environmental agents. He has a Master's Degree in Public Health
from the Harvard School of Public Health and a Doctoral Degree in
epidemiology from the Boston University School of Public Health where he is
currently a professor of Public Health. He is also an adjunct Professor at the
University of Massachusetts in Lowell. He was the director of the
Massachusetts Cancer Registry in the Department of Public Health from 1980
to 1989 where he examined the patterns of cancer in communities and among
workers exposed to carcinogenic substances.

¶ 20 The defendant and third parties did not challenge Dr. Clapp's
qualifications or expertise. They object to the admission of his affidavit on the
basis that it constitutes improper reply evidence after the plaintiff has closed
its case, that it was filed late and that it did not comply with the terms of the
Case Management schedule worked out by the parties and the Court on
December 20, 2007.

¶ 21 Dr. Clapp's affidavit was filed on November 25, 2008 in response to

the affidavits of the four experts filed by the third parties and more
particularly in response to Dr. Mandel's affidavit. In my view, in the
circumstances of this case, fairness dictates that the plaintiff be given an
opportunity to present evidence to address the evidence led by experts
retained by the third parties. Additionally, neither the defendant nor the third
parties alleged that they suffered any prejudice by the receipt of Dr. Clapp's
affidavit and made no request for an adjournment to remedy any prejudice.
Counsel for the plaintiffs confirmed they were prepared to consent to an
adjournment if requested. Finally, the defendants and third parties made no
request for leave to file additional evidence in response to Dr. Clapp's
affidavit. I am satisfied that Dr. Clapp's affidavit is relevant, that the
defendant and third parties will suffer no undue prejudice by its admission
that could not be remedied by an adjournment or presentation of further
evidence, which was not requested. I therefore admit Dr. Clapp's report into
evidence and the Record on Motion.

CERTIFICATION REQUIREMENTS

¶ 22 In Sauer v. Canada (Minister of Agriculture), [2008] O.J. No.

3419 (S.C.J.), Lax, J. very aptly summarized the Court's task in deciding a
motion for certification of a class proceeding at paras. 12-14:

12 On a certification motion, the question that underlies each

of the statutory requirements is whether the claims in the action
can be appropriately prosecuted as a class proceeding: Hollick v.
Toronto (City), [2001] 3 S.C.R. 158 at para. 16. Under s. 5(1) of
the CPA, the court shall certify a proceeding as a class proceeding
if: (a) the pleadings disclose a cause of action; (b) there is an
identifiable class; (c) the claims of the class members raise
common issues of fact or law; (d) a class proceeding would be the
preferable procedure; and (e) there is a representative plaintiff
who would adequately represent the class without conflict of
interest and who has produced a workable litigation plan. The
plaintiff must show some basis in fact for each of the certification
requirements, other than the requirement that the pleading
discloses a cause of action. However, the purpose of a
certification motion is not to determine whether the litigation can
succeed, but how the litigation is to proceed: Hollick, at paras.
25, 28-29.
13 The CPA is a procedural statute that provides a mechanism
for the resolution of mass claims. Although each of the five
requirements for certification is commonly addressed separately
by counsel and by the court, Winkler J. (as he then was) captured
the first three criteria for certification in a single sentence:
"There must be a cause of action, shared by an identifiable class,
from which common issues arise": Frohlinger v. Nortel Networks
Group, [2007] O.J. No. 148 at para. 25. As he helpfully observed,
at the core of a class proceeding is the element of commonality
and implicit in that concept is that the cause of action, the scope
of the class and the common issues are inextricably linked.
14 The remaining two requirements for certification are linked
to the first three and the single sentence proposed by Chief
Justice Winkler can be expanded to incorporate them in this way:
"There must be a cause of action, shared by an identifiable class,
from which common issues arise that can be resolved in a fair,
efficient and manageable way that will advance the proceeding
and achieve access to justice, judicial economy and the
modification of behaviour of wrongdoers." I find it helpful to keep
this linkage in mind in considering the individual criteria for
certification. In view of this linkage, it is not always easy to
separate the certification analysis into distinct components and
overlap is unavoidable.

¶ 23 Recognizing the potential difficulties with strictly compartmentalizing

the individual certification criteria referred to by Justice Lax, I will
nevertheless, for the purpose of articulating my reasons on the motion,
address each of the certification criteria under section 6 of the New Brunswick
Class Proceedings Act individually, as they relate to the circumstances of
this case and the evidence presented on the motion for certification, while
attempting, at the same time, to keep the linkage or interconnection of these
issues in mind in light of the overall context of the proposed action.

Section 6(1)(a) -- Reasonable Cause of Action

¶ 24 The first requirement for certification of a class proceeding is that the
pleadings must disclose a cause of action. In Risorto v. State Farm, supra,
Cullity, J. summarized the principles that apply in determining whether the
statement of claim discloses a cause of action:

[23] ... It is well-established that this question must be decided

on the basis of the facts alleged in the pleading on the
assumption that they will be proven at trial. Accordingly,
evidence is not admissible to rebut such allegations. The test to
be applied is whether it is plain and obvious that the plaintiffs
could not succeed in establishing the alleged causes of action that
are said to arise from the facts pleaded. For this purpose, the
pleading is to be read generously and allowance made for
drafting inadequacies. It has been held that the novelty of a
cause of action is not, in itself, a reason for rejecting it and that a
decision to do so should not be made if the court would be
required to decide matters of law that are not fully settled in the
jurisprudence and that should be viewed in light of a full
evidential record.

¶ 25 At the outset, I note that the Crown has not raised any issue of
Crown immunity or any other common law or statutory immunity with respect
to the claims being advanced by the plaintiffs.

¶ 26 At common law the Crown could not be held liable for torts allegedly
committed by it or Crown servants. The Crown Liability and Proceedings
Act, R.S.C. 1985, c. C.50 (CLPA) alters the common law and imposes
statutory tort liability in certain instances. The relevant sections of the CLPA
provide as follows:

The Crown is liable for the damages for which, if it were a

3. person, it would be liable ...

... in respect of
(b)
a tort committed by a servant of the Crown, or
(i)
a breach of duty attaching to the ownership,
(ii) occupation, possession or control of property.

10. No proceedings lie against the Crown by virtue of

sub-paragraph 3 ... (b)(i) in respect of any act or omission of
a servant of the Crown unless the act or omission would,
apart from the provisions of this Act, have given rise to a
cause of action for liability against that servant or the
servant's personal representative or succession.

¶ 27 The plaintiffs' claims are for damages for personal injury, injury to
property, future costs of medical monitoring, and aggravated and punitive
damages, allegedly caused by exposure to the toxic chemicals that were
applied at the Base since 1956. The claim is drafted rather broadly and names
as the defendant, the Attorney General of Canada, representing Her Majesty
the Queen in right of Canada, which for the purposes of this action is stated
to include all agencies and all departments of the Government of Canada, all
of its contractors, sub-contractors, agents, and servants pursuant to Sections
2, 3 and 10 of the Crown Liability and Proceedings Act., (- see paragraph
8 of Fourth Amended Statement of Claim).

¶ 28 The claim also alleges various forms of tortious conduct on the part
of the defendant which include battery, strict liability & nuisance, trespass,
negligence. It also claims a breach of fiduciary duty. At paragraph 118 of the
Fourth Amended Statement of Claim the plaintiffs plead and rely on sections
2, 3 and 4 of the Crown Liability and Proceedings Act and allege that the
defendant is vicariously liable for the actions of its agents, servants,
employees and contractors.

¶ 29 The allegations of negligence on the part of the defendant are set out
in paragraph 107 of the Fourth Amended Statement of Claim:

Negligence

107. The Plaintiffs and the Direct Class Members

adverse health effects and/or property
state that the
damage they
experienced were solely as a result of the negligence of
Canada, particulars of which are as follows:

a) failing to maintain the Base property

area in a safe condition for human use;
and surrounding

b) breaching their duty of care to safeguard the Plaintiffs

and the Direct Class Members from the foreseeable risks
of adverse health effects and/or property damage;
c) creating a danger which Canada
foreseen would cause adverse
knew or ought to have
health effects and/or
property damage to the Plaintiffs and the Direct Class
Members;
failing to use reasonable care in insuring that the Base
d) could be used by the Plaintiffs and the Direct Class
Members, without the risk of adverse health effects
and/or property damage;
 e) failing to inform the Plaintiffs and the Class Members of
the toxic nature of the Chemicals that had been used,
sprayed, tested or otherwise applied on the Base, when
they knew or ought to have known that these Toxic
Chemicals have been linked with serious adverse health
effects and/or property damage;
failing to post signs warning of danger as a result of the
f) use, spraying, testing or application of Toxic Chemicals on
the Base;
failing to use reasonable care to prevent a danger from
g) developing on the Base; and
such further and other negligence as may appear.
h)
¶ 30 The Attorney General submits that with respect to the claims in
negligence and battery the pleadings fail to disclose reasonable causes of
action and that it is plain and obvious that the action cannot succeed. The
Attorney General submits that pursuant to the CLPA, the Crown's liability in
tort is limited to vicarious liability only, that the plaintiffs' action fails to
connect any specific tortious conduct to any Crown servant and therefore
since the plaintiffs' battery and negligence claims purport to enforce a direct
liability against the crown, they are not causes of action recognized in law
(paras. 78 & 79 of Attorney General's Pre-Hearing Brief).

¶ 31 As indicated previously, the plaintiffs have pleaded vicarious liability

against the defendant. It is not essential for the plaintiffs to specifically
identify the specific Crown's servants whose conduct they allege was tortious.
In Liability of the Crown, Third Edition, Hogg & Monahan, the authors state
at page 117:

A plaintiff who sues the Crown for the tort of a Crown servant
need not bring proceedings against the servant personally
(although sometimes the plaintiff will see advantages in adding
the individual servant as a defendant). This is a change from the
era when the Crown was not liable in tort, but did make an
informal practice of standing behind a servant who committed a
tort in the course of employment. One of the defects of the
informal practice was that the plaintiff had to sue the individual
Crown servant who caused the plaintiff's injury. If that person
could not be identified, the plaintiff had no one to sue. Now that
the Crown is vicariously liable for the torts of its servants, the
individual Crown servant need not be sued, and the identification
of the actual tortfeasor is no longer essential. In one case, for
example, the plaintiff successfully sued the Crown in right of
Canada for the loss of a parcel of diamonds in the premises of a
customs postal branch. The Court found as a fact that the parcel
had been stolen by a Crown servant in the course of
employment, although the identity of the thief was never
established. The Crown was held vicariously liable for the tort of
the unknown Crown servant.

¶ 32 More specifically with respect to the issue of negligence, the Attorney

General also submits that the pleadings and facts as alleged (even presuming
they are proven) do not establish a duty of care and therefore it is plain and
obvious that the action cannot succeed. The Attorney General argues that in
order to determine whether there is a private law duty of care owed by the
Crown to the plaintiffs, the Court must undertake the two step analysis as set
down in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.)
and applied by the Supreme Court of Canada in Kamloops (City of) v.
Nielson, [1984] 2 S.C.R. 2 to: 1) determine whether there is a relationship
of sufficient proximity between the parties to warrant the imposition of a duty
of care; and if so, 2), whether there are reasons to negate, reduce or limit the
scope of that duty.

¶ 33 In Adams et al. v. Borrel et al. 2008 NBCA 62, Robertson, J.A.

provides a very helpful review and summary of the Canadian law relating to
the issue of the duty of care in a negligence claim.

34 I do not propose to retrace the entire jurisprudential

history surrounding the concept of government liability in
negligence, which begins with the Supreme Court's acceptance of
the decision of the House of Lords in Anns v. Merton London
Borough Council, [1978] A.C. 728 (H.L.). While the House of
Lords would ultimately reject Anns in Murphy v. Brentwood
District Council, [1991] 1 A.C. 398 (H.L.) our Supreme Court
continues to ascribe to the basic tenets of Anns on the basis that
it provides a useful framework for addressing whether a duty of
care should be imposed. The development of the modern
Canadian doctrine begins with the Supreme Court's decision in
Kamloops (City) v. Nielsen et al., [1984] 2 S.C.R. 2, [1984]
S.C.J. No. 29 (QL) as reformulated in Just v. British Columbia,
[1989] 2 S.C.R. 1228, [1989] S.C.J. No. 121 (QL) and as more
recently elaborated upon in Cooper v. Hobart, [2001] 3 S.C.R.
537, [2001] S.C.J. No. 76 (QL), 2001 SCC 79 and its companion
case Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R.
562, [2001] S.C.J. No. 77 (QL), 2001 SCC 80. For purposes of
deciding this appeal, the legal framework set out in Cooper is the
focal point of my analysis.
...
 36 The analytical framework set down in Cooper v. Hobart
involves the application of the two-part test first set out in Anns.
First, it must be determined whether a prima facie duty of care
exists. To make that determination the court must consider
whether there was "reasonable foreseeability" of the harm plus a
relationship of "proximity". As a starting point, proximity is
generally established by reference to previously recognized or
analogous categories of negligence. This simplifies the "duty of
care" analysis so long as the case is one that falls within a
recognized or analogous category. Conversely, in a "novel" case,
the issues of foreseeability of harm and proximity must be
examined afresh. These points were recently affirmed by the
Supreme Court in Design Services Ltd. v. Canada, [2008] S.C.J.
No. 22 (QL), 2008 SCC 22.
37 Once foreseeability and proximity are established, a prima
facie duty of care is assumed. This takes us to the second stage
of the Anns analysis. It is at this stage that residual policy
considerations for negating that prima facie duty are to be
considered. These policy considerations are not concerned with
the relationship of the parties, but rather with the effect of
recognizing a duty of care on other legal obligations. Notably,
would recognition of the duty of care create the specter of
unlimited liability to an unlimited class? As well, it is necessary to
ask whether there are other reasons of broad policy that suggest
that the duty of care should not be recognized. This is the point
where the distinction between the formulation and execution of
government policy is to be considered. The law declares that
government actors are not liable in negligence for policy
decisions, only for those that are operational in nature.
38 In Cooper, the Supreme Court makes two important
observations with respect to the second stage of the Anns
analysis. First, the need to proceed to the second stage generally
arises only in cases where the duty of care asserted does not fall
within a previously recognized or analogous category of recovery.
As the Court qualified this observation with the adverb
"generally", one must accept that resort to the second stage will
be necessary if the case involves the distinction between policy
and operational decisions. This is true even in cases that fall
within a previously recognized or analogous category (such as
negligent maintenance of highways). The Court's second
observation is that in a "novel" case, it is necessary to consider
both steps of the Anns test. As the Court stated at paragraph 39
of Cooper, "[t]his ensures that before a duty of care is imposed in
a new situation, not only are foreseeability and relational
proximity present, but there are no broader considerations that
would make imposition of a duty of care unwise."

¶ 34 In identifying the categories in which proximity has been recognized,

McLachlin, C.J. and Major, J. delivering the judgment of the Court in Cooper
v. Hobart, supra, stated at para. 36:

36 What then are the categories in which proximity has been

recognized? First, of course, is the situation where the
defendant's act foreseeably causes physical harm to the plaintiff
or the plaintiff's property. This has been extended to nervous
shock (see, for example, Alcock v. Chief Constable of the South
Yorkshire Police, [1991] 4 All E.R. 907 (H.L.)). Yet other
categories are liability for negligent misstatement: Hedley Byrne
& Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), and
misfeasance in public office. A duty to warn of the risk of danger
has been recognized: Rivtow Marine Ltd. v. Washington Iron
Works, [1974] S.C.R. 1189. Again, a municipality has been held
to owe a duty to prospective purchasers of real estate to inspect
housing developments without negligence: Anns, supra;
Kamloops, supra. Similarly, governmental authorities who have
undertaken a policy of road maintenance have been held to owe
a duty of care to execute the maintenance in a non-negligent
manner: Just v. British Columbia, [1989] 2 S.C.R. 1228,
Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R.
445, etc. Relational economic loss (related to a contract's
performance) may give rise to a tort duty of care in certain
situations, as where the [page 554] claimant has a possessory or
proprietary interest in the property, the general average cases,
and cases where the relationship between the claimant and the
property owner constitutes a joint venture: Norsk, supra; Bow
Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,
[1997] 3 S.C.R. 1210. When a case falls within one of these
situations or an analogous one and reasonable foreseeability is
established, a prima facie duty of care may be posited.

¶ 35 In my view, on its face the Fourth Amended Statement of Claim as

pleaded would fall under the first category identified in Cooper v. Hobart;
that is a "situation where the defendant's act foreseeably causes physical
harm to the plaintiff or the plaintiff's property". As the allegations are against
the Crown and Crown servants, it is necessary to distinguish between policy
and operational decisions on the question of the duty of care. In my view, the
evidentiary record presented is insufficient to make such a determination at
this stage and that would be more appropriately fleshed out on the trial of the
issue.
¶ 36 Likewise, the Crown submitted that at the stage two analysis of
Anns, there were overriding policy considerations militating against the
finding of a duty of care in the instant case, including:

a) recognition of a duty of care would create

unlimited liability to an unlimited class;
the specter of

b) recognition of a duty of care may have a negative impact on

the government's ability to balance all relevant interests when
making regulatory decisions regarding national, defence,
military training and operations;
recognition of a duty of care is not in the interests of society
c) generally in that it is not consistent with the societal interests
of allowing the Crown to exercise its authority for the purpose
of the defence of Canada, and the training or maintaining the
efficiency of its military.

¶ 37 At the certification stage, however, the Court is concerned only with

the determination of "whether it is plain and obvious that the plaintiffs could
not succeed in establishing the alleged causes of action that are said to arise
from the facts pleaded". In my view it is not. That is not to say that following
the presentation of a more fulsome, focused and complete evidentiary record
on the issues of policy versus operational decisions and the further policy
reasons advanced by the Crown militating against the imposition of a duty of
care, that the common issues or trial judge might not conclude otherwise.
Ultimately, in my opinion however, those determinations should only be made
in the instant case with the advantage of viewing these issues in the light of a
more complete and full evidentiary record. This is the same approach that
should be taken with respect to determination of the availability of the novel
remedy being sought by the plaintiffs for medical monitoring which was
opposed on the basis that such a claim has not been recognized in Canadian
jurisprudence and that it does not meet the two stage analysis to establish a
duty of care as set down in Anns.

¶ 38 In my view, it is not plain and obvious that the plaintiffs could not
succeed in establishing the alleged causes of action that are said to arise from
the facts pleaded.

Section 6(1)(b) -- Identifiable Class

¶ 39 The plaintiffs propose certification of two distinct but overlapping

classes defined as "Direct Class Members" and "Family Class Members":

Class Members who are defined as all persons who

(a) Direct
were/are residents and/or employed and/or visited within 10
kilometers of the perimeter of the Canadian Armed Forces
Base in Gagetown, and/or within the Base itself, between
January, 1956 and the present time, and:

who claim to have suffered injury or whose death is

(i) claimed to have been caused or was materially
contributed to as a result of exposure to one or more
Toxic Chemicals used, sprayed, tested or otherwise
applied by the Defendant at the Base; and/or
who claim to have suffered damage to property that
(ii) they own/owned or occupy/occupied as a result of
exposure to one or more Toxic Chemicals used, sprayed,
tested or otherwise applied by the Defendant at the
Base.

Class Members are defined as all persons who have

(b) Family
a derivative claim, including damages pursuant to the Fatal
Accidents Act, R.S.N.B. 1973, c. F-7, specifically sections 2,3
and 6(4) and related extra-provincial legislation, as a result
of a family relationship with a person described in the Direct
Class.

¶ 40 In Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913

(S.C.J.), Justice Winkler explained the purpose of the class definition in a
class proceeding at paras. 10 & 11:

10 The purpose of the class definition is threefold: a) it

identifies those persons who have a potential claim for relief
against the defendant; b) it defines the parameters of the lawsuit
so as to identify those persons who are bound by its result; and
lastly, c) it describes who is entitled to notice pursuant to the Act.
Thus for the mutual benefit of the plaintiff and the defendant the
class definition ought not to be unduly narrow nor unduly broad.
11 In the instant proceeding the identities of many of the
passengers who would come within the class definition are not
presently known. This does not constitute a defect in the class
definition. In Anderson v. Wilson (1998), 37 O.R. (3d) 235 (Div.
Ct.), Campbell J. adopted the words of the Ontario Law Reform
Commission and stated at 248:

... a class definition that would enable the court to

determine whether any person coming forward was or was
not a class member would seem to be sufficient.

On this point, Newberg on Class Actions (3d ed. Looseleaf) (West

Publishing) states at 6-61:
 Care should be taken to define the class in objective terms
capable of membership ascertainment when appropriate,
without regard to the merits of the claim or the seeking of
particular relief. Such a definition in terms of objective
characteristics of class members avoids problems of circular
definitions which depend on the outcome of the litigation on
the merits before class members may be ascertained ...

The Manual for Complex Litigation, Third (1995, West Publishing)

states at 217:

Class definition is of critical importance because it identifies

the persons (1) entitled to relief, (2) bound by a final
judgment, and (3) entitled to notice in a [class] action. It is
therefore necessary to arrive at a definition that is precise,
objective, and presently ascertainable ... Definitions ...
should avoid criteria that are subjective (e.g. a plaintiff s
state of mind) or that depend upon the merits (e.g., persons
who were discriminated against). Such definitions frustrate
efforts to identify class members, contravene the policy
against considering the merits of a claim in deciding
whether to certify a class, and create potential problems of
manageability.

¶ 41 In Western Canadian Shopping Centres Inc. v. Dutton, supra,

Chief Justice McLachlin addressed the issue of class definition in the following
manner at paragraph 38:

First, the class must be capable of clear definition. Class

definition is critical because it identifies the individuals entitled to
notice, entitled to relief (if relief is awarded), and bound by the
judgment. It is essential, therefore, that the class be defined
clearly at the outset of the litigation. The definition should state
objective criteria by which members of the class can be identified.
While the criteria should bear a rational relationship to the
common issues asserted by all class members, the criteria
should not depend on the outcome of the litigation. It is not
necessary that every class member be named or known. It is
necessary, however, that any particular person's claim to
membership in the class be determinable by stated, objective
criteria.
[Emphasis added]

¶ 42 The plaintiffs' proposed definition is very broad on its face from both
a temporal and geographic perspective. Although no real estimate of the
amount of potential class members was provided in the evidence, it seems
clear that potentially the numbers could be very significant, particularly
considering the time frame included (approximately 53 years) and the
geographic location covered (the entire area of the Base and a 10 kilometer
perimeter surrounding it, which encompasses large portions of the Town of
Oromocto and significant portions of major highways through the Province).

¶ 43 In advancing this proposed definition, the objective of counsel for the

plaintiffs appears to be to avoid an overly broad definition while at the same
time providing that all potential claimants who might have a claim arising
from the spray of herbicides at the Base would be included in the one action.

¶ 44 The plaintiffs take no issue that the class definition should be

objective and not based on the merits or outcome of the litigation. They also
acknowledge that the proposed class ought not to be defined in unnecessarily
broad terms but submit on the other hand that it should not be under
inclusive so as to exclude potential class members with legitimate claims.

¶ 45 The plaintiffs appear to have attempted to avoid the pitfalls of an

overly broad definition by including in the definition of class members the
words "who claim to" have suffered injury or to have suffered property
damage in subparagraphs (a) and (b) of the proposed definition of Direct
Class Members. This was the solution adopted by the motions judge in Ring
v. A.G. of Canada, [2007] N.J. No. 273 where he narrowed the proposed
class definition, which the defendants alleged was overly broad, from "All
individuals who were at CFB Gagetown between 1956 and the present" by
adding the words "... and who claim they were exposed to dangerous levels of
dioxin or HCB while on the base" (paras. 127 and 161(c)).

¶ 46 In my respectful view, the addition of the qualifying words "who

claim to" does not, rectify the underlying problem with the overly broad
definition of class members, in the sense that many members of the proposed
class would likely have no claim for actual damages against the defendant and
in those instances there would be no rational relationship or connection
between those individuals and the common issues asserted in the action. In
effect, the proposed class includes anyone who was within 10 kilometers of
the base during the approximate 53 year period since 1956, and claims to
have suffered injury or risk of injury from the application of the chemicals.
The proposed definition does not require any actual exposure to the chemicals
as a condition of class membership. It is axiomatic that without exposure in
some manner there can be no damage and no claim for damages or personal
injury.

¶ 47 Further, included in the plaintiffs' action is a claim for a medical

monitoring regime for those who were placed at risk of injury from the spray
program. The determination of the appropriateness of such a regime is one of
the common issues proposed by the plaintiffs for the common issues trial. This
necessarily contemplates that the word "injury" in the putative class definition
would be broadly interpreted to include "the risk of illness or injury".

¶ 48 As it stands, the proposed class has virtually no meaningful

restriction and would potentially include hundreds of thousands of claimants
including many who had no actual exposure to the chemicals, as the evidence
confirms that the chemicals were generally applied seasonally at fairly specific
times of year and in specific areas of the base to which many in the proposed
class would likely have had no access or exposure and therefore no real
interest in the resolution of the proposed common issues. Nevertheless, one
could reasonably anticipate that many such persons would have an interest in
being tested for the effects of any possible exposure, even if never exposed or
if in fact exposed, no matter how minimal the exposure, even though they
exhibit no symptoms whatsoever. They would be class members under the
terms of the proposed definition. The potential class would be limitless with
many potential members, in many respects, having no real interest in the
determination of the proposed common issues. In short, the proposed
definition of class members is overly broad and more importantly, the criteria
of membership do not "bear a rational relationship to the common issues
asserted by all class members" and do not satisfy the requirements of section
6(1)(b) of the CPA.

¶ 49 I note that there is not universal acceptance within the courts

on whether claims based definitions or delimiters are appropriate in defining
class membership -- (for an interesting discussion and analysis on the issue
see -- Attis v. Canada (Minister of Health) (2007), 46 C.P.C. (6th) 129
(Ont. S.C., Winkler, J., as he then was). I do not believe it is necessary to
delve into that discussion in the instant case as I have concluded at the outset
that the proposed class definition is overly broad and does not bear a rational
relationship to the common issues advanced in the proposed action.

¶ 50 Counsel for the plaintiffs encouraged the Court to consider amending

the proposed definitions if they were found to be unsuitable. In Hollick v.
Toronto (City), supra, Chief Justice McLachlin described a somewhat flexible
process in determining class definitions that contemplated potential
amendments to the definition, particularly with respect to overly broad class
definitions. At paragraph 21 of the decision she said that when faced with an
overly broad class definition the motions judge could "either disallow or allow
certification on condition that the definition of the class be amended". Counsel
for the plaintiffs however, did not propose any specific amendments or
wording for potential amendments to address any problems with the proposed
class definitions. In the absence of any specific submissions in this regard and
considering the very broad range of potential claimants sought to be included
in the class (which include all persons within 10 kilometers of the Base over a
period of 53 years exposed to various types of chemicals, to varying degrees
by a multitude of methods of exposure, at different times and places within
the geographic area identified, allegedly resulting in numerous types of
injuries and conditions), the broad nature of the claims being advanced,
(which include a claim for a medical monitoring regime), as well as the overall
context and contents of the Fourth Amended Statement of Claim, it would be
difficult, if not impossible, for the Court to presume where to begin with
directing amendments to the class definition.

Section 6(1)(c) -- Common Issues

¶ 51 Section 6(1)(c) of the CPA requires that "the claims of the class
members raise a common issue, whether or not the common issue
predominates over issues affecting only individual members" and section 1
defines "common issues" as: "(a) common but not necessarily identical issues
of fact, or (b) common but not necessarily identical issues of law that arise
from common but not necessarily identical facts".

¶ 52 In Western Canadian Shopping Centres Inc. v. Dutton, supra,

McLachlin, C.J. explained the commonality requirements of class proceedings
at paras. 39 & 40:

39 Second, there must be issues of fact or law common to all

class members. Commonality tests have been a source of
confusion in the courts. The commonality question should be
approached purposively. The underlying question is whether
allowing the suit to proceed as a representative one will avoid
duplication of fact-finding or legal analysis. Thus an issue will be
"common" only where its resolution is necessary to the resolution
of each class member's claim. It is not essential that the class
members be identically situated vis-à-vis the opposing party. Nor
is it necessary that common issues predominate over
non-common issues or that the resolution of the common issues
would be determinative of each class member's claim. However,
the class members' claims must share a substantial common
ingredient to justify a class action. Determining whether the
common issues justify a class action may require the court to
examine the significance of the common issues in relation to
individual issues. In doing so, the court should remember that it
may not always be possible for a representative party to plead
the claims of each class member with the same particularity as
would be required in an individual suit.
40 Third, with regard to the common issues, success for one
class member must mean success for all. All members of the class
must benefit from the successful prosecution of the action,
 although not necessarily to the same extent. A class action
should not be allowed if class members have conflicting interests.

¶ 53 In Hollick v. Toronto (City), supra, the Court addressed the

"common issues" criteria at para. 18:

The more difficult question is whether "the claims ... of the class
members raise common issues", as required by s. 5(1)(c) of the
Class Proceedings Act, 1992. As I wrote in Western Canadian
Shopping Centres, the underlying question is "whether allowing
the suit to proceed as a representative one will avoid duplication
of fact-finding or legal analysis". Thus an issue will be common
"only where its resolution is necessary to the resolution of each
class member's claim" (para. 39). Further, an issue will not be
"common" in the requisite sense unless the issue is a "substantial
... ingredient" of each of the class members' claims.

¶ 54 The plaintiffs propose the following seventeen common issues for

certification:

(a) Did the Defendant cause or allow the use, spraying or testing
of Toxic Chemicals onto the persons and properties within 10
kilometres of the perimeter of the Canadian Armed Forces
Base in Gagetown, and/or within the boundaries of the Base
itself (hereinafter "exposed area")?
If the answer to (a) is yes, do the Toxic Chemicals emitted
(b) pose a risk to the lives and health of persons exposed to
them or to the use enjoyment and value of properties
exposed to one or more of the Toxic Chemicals?
Did the Defendant know, ought to have known, or was the
(c) Defendant reckless or willfully blind when it caused or
allowed the use, spraying or testing of the Toxic Chemicals,
that the Toxic Chemicals created a risk to the lives and
health of persons exposed to them or to the use, enjoyment
and value of properties exposed to them? If so, when did the
Defendant have or ought to have had such knowledge?
Did the exposed area constitute an unusual or unreasonable
(d) danger thereby causing risk to the lives and health of persons
exposed to one or more of the Toxic Chemicals, or to use,
enjoyment and value of properties exposed to one or more
Toxic Chemicals?
Ought the Defendant to have known about or reasonably
(e) foreseen the unusual or unreasonable danger caused by
exposure to one or more Toxic Chemicals in the exposed
area?
Did the Defendant owe the Class Members a duty of care to
(f) take steps to contain, reduce, minimize or eliminate the use,
spraying or testing of the Toxic Chemicals that they knew or
ought to have known presented a serious risk to the lives,
health and property of the Class Members?
Did the Defendant breach the duty of care owed to Class
(g) Members by failing to take available and/or reasonable steps
to contain, reduce, minimize or eliminate the use, spraying or
testing of Toxic Chemicals?
Did the Defendant breach the duty of care owed to Class
(h) Members by failing to take available and/or reasonable steps
to monitor for the potential adverse health effects as a result
of its use, spraying or testing of Toxic Chemicals?
Did the Defendant have a duty to warn the Class Members of
(i) the adverse health risks to which they were exposed as a
result of allowing the use, spraying or testing of Toxic
Chemicals, and if so, did the Defendant warn in a timely,
reasonable and effective manner?
Did the Defendant intentionally cause the Toxic Chemicals to
(j) come into contact with Class Members as to constitute a
battery at law?
Did the Defendant carelessly use, spray or test Toxic
(k) Chemicals when they know or ought to have known that they
would come into contact with the Class Members so as to
constitute a negligent battery at law?
Does having allowed the use, spraying or testing of Toxic
(l) Chemicals by the Defendant on the Class Members' properties
within the exposed area constitute a trespass at law?
Is the Defendant strictly liable to Class Members for damages
(m) in tort or, pursuant to the principle in Rylands v. Fletcher, for
the use, spraying or testing of Toxic Chemicals escaping from
the Defendant's properties?
Did the Defendant owe the Class Members a fiduciary duty to
(n) act in the best interests of Class Members in dealing with the
dissemination of information concerning the existence of the
use, spraying or testing of Toxic Chemicals on the exposed
area, and the remediation within the exposed area? If so, did
they breach that duty by:

Concealing the known nature and effects of the Toxic

(iii) Chemicals;
(iv) Concealing the health risks associated with exposure
to the Toxic Chemicals from the Plaintiff and Class
Members
 (v) Continuing to allow the use, spraying or testing of the
Toxic Chemicals within the exposed area in spite of
the knowledge; and
(vi) Declining to remediate the exposed area?
(o) Is a medical monitoring regime an appropriate and effective
way to improve the emotional, mental and physical health
effects of the use, spraying or testing of Toxic Chemicals that
the Defendant has caused or allowed?
Are the Toxic Chemicals still escaping from the exposed area
(p) over or under the land, through the air or water and, if so, is
the Defendant required to improve the ongoing exposure of
Class Members to Toxic Chemicals which they allowed to be
used, sprayed or tested in the exposed area, either by
remediating those properties or, where not possible to,
effectively do so by hearing the cost of relocating such Class
Members to reasonably equivalent properties that do not
present such a risk?
Should the Defendant be liable to pay punitive damages in
(q) the aggregate and, if so, what is an appropriate amount of
such aggregate damage?

¶ 55 These seventeen common issues can be grouped generally into two

distinct categories; the first group relating to causation issues which include
common issues (a), (b), (d) and (o) and relate to the determination of
whether exposure to the alleged toxic chemicals cause or caused a risk of
personal injury or property damage to members of the putative class. The
second group of common issues relates to alleged tortious acts which
include the remaining proposed common issues as well as the alleged tortious
acts and alleged breaches of duties on the part of the Crown with respect to
its use, spraying or testing of the alleged toxic chemicals at the Base.

¶ 56 In addressing the commonality requirement one must not confuse

the concept of "common issues" with that of "common cause of action". As
Cumming, J. stated in Williams v. The Mutual Life Assurance of Canada
(2000), 51 O.R. (3d) 54 (S.C.J.) at para. 39:

The causes of action are asserted by all class members. But the
fact of a common cause of action does not in itself give rise to a
common issue. A common issue cannot be dependent upon
findings of fact which have to be made with respect to each
individual claimant. While the theories of liability can be phrased
commonly the actual determination of liability for each class
member can only be made upon an examination of the unique
circumstances with respect to each class member's purchase of a
policy.

¶ 57 In Rumley v. British Columbia, supra, the Supreme Court of

Canada also cautioned against certifying overly broad or general common
issues that at first blush appear to be common but which in fact may not be
when considered in the overall context of the action:

[39] It would not serve the ends of either fairness or efficiency

to certify an action on the basis of issues that are common only
when stated in the most general terms. Inevitably such an action
would ultimately break down into individual proceedings. That
the suit had initially been certified as a class action could only
make the proceeding less fair and less efficient.

¶ 58 In my view, that is precisely what the plaintiffs propose with respect

to the common issues in this case. They have attempted to frame the issues
in fairly simple, straight forward language and propose what appears to be a
simple but ultimately generic and aggregate inquiry with regards to the
relationship of 74 different chemicals to a multitude of possible injuries and
health conditions or risks of developing such conditions. In effect, the
plaintiffs propose that the common issues judge take on the huge task of
determining the toxicity of all of these chemicals and their possible
relationships to the various health conditions enumerated in the Fourth
Amended Statement of Claim irrespective of any considerations for actual
exposure or dosage experienced by potential claimants for which the plaintiffs
have not established that there are, or will be, any claimants who actually
claim to suffer the injuries and conditions that are enumerated in the action
and related to any particular chemical.

¶ 59 In short, as counsel for Dow argues, the problem with the plaintiffs'
proposed common issues dealing with risk and general causation on a
common issues basis for the class as a whole is that the methodology inherent
in such an inquiry, considering the number of chemicals involved, the number
of diseases alleged, the potential size of the proposed class, the length of the
class period and the multitude of variations in exposure, would necessitate a
determination of potentially hundreds or thousands of separate inquiries to
answer the proposed general causation issue and each of these very
individual inquiries may in fact be "common" to only a small number of class
members or perhaps to none of them at all.

¶ 60 Dr. Philip Guzelian, a qualified medical expert in the field of

toxicology, provided expert opinions by way of affidavit on behalf of Dow and
Pharmacia. He began his analysis by pointing out that the plaintiffs' use of the
term "Toxic Chemicals" in their pleadings was not scientific. He explained that
all chemicals if received at a high enough dose are toxic and that it is
preferable to speak of toxic exposures or toxic dose of a chemical when
conducting a toxicological analysis of a particular chemical.

¶ 61 Dr. Guzelian also confirmed that the accepted toxicological

methodology for determining whether a specific individual's disease or
medical condition was caused by that individual's exposure to a specific
chemical, requires an assessment of five inquiries and that failure to satisfy
any one of these criteria is usually fatal to the proposition that exposure to a
specific chemical has caused a specific medical condition in a specific
individual:

Causation: Is the chemical known to be capable of

(a) General
causing the effects at issue?
and Dose: Did the individual in question have an
(b) Exposure
opportunity for contact with the chemical, and, if so, did the
exposure result in a dose received in a sufficient magnitude?
Was the chemical exposure temporally related to
(c) Timing:
the onset of the effect in question?
Cause: Can plausible alternative causes of the
(d) Alternative
effect in question be ruled out?
Is there logical coherence and consistency in the
(e) Coherence:
clinical toxicologic and relevant epidemiologic evidence, taken
as a whole?

¶ 62 This causation model was adopted by the other experts who filed
affidavits on behalf of Dow and Pharmacia, Drs. Geizy, Lorber and Mandel. In
response to these experts, the plaintiffs presented the affidavit evidence and
opinions of Dr. Richard Clapp, an epidemiologist specializing in epidemiology
and public health with a focus on cancer and other diseases caused by toxic
chemicals and other environmental agents. He also carries impressive
qualifications in his field. Dr. Clapp first points out that, contrary to Dr.
Guzelian's view, a number of chemicals are universally recognized as toxic.
He notes for example that 2, 4, 5, -T has been banned for three decades and
pentachlorophenol and various herbicides are restricted use pesticides. Dr.
Clapp disagrees with the causation methodology suggested by Dr. Guzelian
and says at paragraph 8 of his affidavit that:

Drs. Giesy, Guzelian and Mandel all confuse the legal standard
with the scientific standard of cause and effect in each individual
exposed to a toxic chemical. In so doing, they strive to add
unnecessary complexity where it is neither required nor
warranted. They propose that each and every one of the plaintiffs
be evaluated individually for their exposure, internal dose,
medical history, family history and other factors. This is
completely unnecessary in a situation where exposure of
individuals within 10 kilometers of the Gagetown base has been
demonstrated by Fact Finders and other historical records ...

¶ 63 I am not certain, for the purposes of this proceeding, that it is

necessary or that it would be particularly useful to attempt to resolve the
dispute between the experts concerning the appropriateness or
inappropriateness of labeling certain substances as "toxic". The main point of
contention between the two camps is obviously the correct approach to apply
to the determination of the causation issues raised in this case.

¶ 64 The issue of the legal standard of proof of causation in a medical

malpractice case was canvassed by the Supreme Court of Canada in Snell v.
Farrell, [1990] 2 S.C.R. 311. In rejecting a shifting of the burden of proof
approach to the issue of causation in that case, Sopinka, J. also reviewed the
often confusing distinction between medical or scientific standards of
causation and the legal standard:

33 The legal or ultimate burden remains with the plaintiff, but

in the absence of evidence to the contrary adduced by the
defendant, an inference of causation may be drawn although
positive or scientific proof of causation has not been adduced. If
some evidence to the contrary is adduced by the defendant, the
trial judge is entitled to take account of Lord Mansfield's famous
precept. This is, I believe, what Lord Bridge had in mind in
Wilsher when he referred to a "robust and pragmatic approach to
the ... facts" (p. 569).
34 It is not therefore essential that the medical experts
provide a firm opinion supporting the plaintiff's theory of
causation. Medical experts ordinarily determine causation in
terms of certainties whereas a lesser standard is demanded by
the law. As pointed out in Louisell, Medical Malpractice, vol. 3,
the phrase "in your opinion with a reasonable degree of medical
certainty," which is the standard form of question to a medical
expert, is often misunderstood. The author explains, at p. 25-57,
that:

Many doctors do not understand the phrase ... as they

usually deal in "certainties" that are 100% sure, whereas
"reasonable" certainties which the law requires need only
be more probably so, i.e., 51%.

¶ 65 In my view, there is no basis upon which to conclude that Dr.

Guzelian, or the other experts presented by the Third Parties, are confusing
the medical and legal standards. As I understand their approach, at this phase
of the analysis on the issue of causation they are not even at a stage where
they are in a position to offer an opinion on the issue of causation. What they
are addressing is their opinions with respect to the proper methodology that
must be applied to reach the point where an opinion can be offered or a
conclusion made on the issue of whether a certain product causes or caused a
certain effect, whether it be on what is commonly recognized as the more
rigid medical/scientific standard of certainty or the less stringent legal
standard of balance of probability.

¶ 66 Dr. Clapp recommends that a more general approach may be applied

to the issue of causation and that such an approach has "been used to
determine that mixtures of chemicals, such as those found in cigarette smoke
are causally associated with a number of diseases. Similarly, the National
Academy of Sciences Institute of Medicine's review of the health effects of
Agent Orange and herbicides used in Vietnam, concluded that scientific
evidence demonstrated that mixtures of chemicals were associated with a
number of diseases, contrary to Dr. Mandel's assertion" (para. 9 of Dr. Clapp's
affidavit). Dr. Clapp also confirms that the IOM model was adopted to review
the scientific literature regarding Agent Orange, dioxin and various other
chemicals (which include those listed by the plaintiffs in this proceeding) to
determine whether an association existed between exposures to these
chemicals and specific health outcomes as the data necessary for carrying out
quantitative risk assessments in Vietnam Veterans was not available. The IOM
reports make conclusions about the strength of the evidence for several
diseases, conditions and specific cancers which is used by the Veteran's
Administration to compensate Vietnam veterans for various service related
diseases. Dr. Clapp further opines that "Just as the conclusions of the IOM
analysis contributed to the adoption of a global compensation scheme for All
Vietnam veterans by the U.S. Department of Veterans Affairs, a global
compensation scheme may be developed in this matter".

¶ 67 Although this general approach may have been appropriate for the
Institute of Medicine's and Veteran's Affair's purposes, I have not been
convinced that such an approach would be appropriate in the context of the
case at bar and I accept Dr. Guzelian's opinion in this regard. The plaintiffs'
action is a tort action not an administrative compensation claim. It targets 74
different chemicals, applied in various locations, at differing times, by
different methods, resulting in very different degrees of exposure, if any, for
a wide variety of potential claimants. This is clearly not a situation akin to a
VA compensation claim; or a situation such as a pharmaceutical claim where
all claimants ingested the same product, at similar dosages resulting in similar
conditions; or an environmental claim where all claimants were exposed to
the same substance, perhaps at even somewhat varying degrees, but who
develop or complain of similar effects or conditions. In such situations general
inquiries regarding toxicity of the product and causation may be meaningful,
however, in my view, such an approach would do little, if anything, to serve
or advance the resolution of the common issues in this proposed class
proceeding and even if they did, it would do little to advance the resolution of
the claims of the individual claimants in an efficient and fair manner.

¶ 68 An inquiry such as proposed by the plaintiffs on the common issue of

causation being "do the Toxic Chemicals emitted pose a risk to the lives and
health of those exposed to them ..." suggests a single inquiry and a single
answer for all class members. In reality, the determination of even the
general causation inquiry of whether a particular substance is known to be
capable of causing (or "associated" with) the effects at issue, although
perhaps interesting in itself, would likely be of little utility in the context of
the proposed class action. Again, on this point it must be kept in mind that
the plaintiffs identify 74 individual products as toxic which are alleged to have
been sprayed at the Base. A general inquiry into the toxicity of all of these
products where it is not known if any of the potential claimants were ever
exposed to a particular product, or that there is a potential claimant that has
a condition that might be caused by a particular product, may be pointless
and such a situation could hardly be seen to advance the interests of judicial
economy or fairness to any of the parties.

¶ 69 Further, even if it were feasible to conduct the general inquiry

proposed with respect to the toxicity of each of these products, these inquiries
would do little to advance an individual claimant's claims as the court would
still be required to undertake a separate inquiry on each of the remaining
four questions identified by Dr. Guzelian involved in this type of inquiry to
determine causation for each chemical as it relates to each individual and
each individual's level of exposure to provide any meaningful information to
the court or to advance either the class proceeding as a whole or an
individual's particular claim. In undertaking such an inquiry much of the same
evidence presented on the general causation inquiry relating to a particular
product would likely have to be presented once again to address potential
effects of the product and actual causation in light of the particular exposures
of the particular claimants and the conditions they developed. In this sense,
any advantage that might be gained by a common issues trial in determining
general causation questions would likely be lost and/or overwhelmed by the
necessity of revisiting these same causation issues as they relate more
specifically to the individual circumstances of each potential claimant in
deciding each individual claim.

¶ 70 In Merck Frosst Canada Limited et al v. Wuttunee et al. 2009

SKCA 43, the Saskatchewan Court of Appeal addressed a similar issue on an
appeal of a certification of a multijurisdictional class action brought on behalf
of consumers of Vioxx. In that case one of the questions was whether the
requirements of commonality were established and in determining that they
were not, Smith, J.A. stated at paragraphs 143 to 146 in addressing proposed
common issue #1 -- "Whether Vioxx can cause or exacerbate cardio vascular
or gastrointestinal conditions":
 [143] Finally, the appellants argue that the resolution of the
question could not, in any case, contribute substantially to any
class member's claim of injury because the question of individual
causation would turn on many factors other than the inherent
properties of Vioxx. The appellants argue that "a class-wide"
determination of whether Vioxx "can" cause or exacerbate
"cardiovascular conditions" in the abstract would not alleviate in
any significant respect a particular class member's obligation to
prove that Vioxx caused his or her particular cardiovascular
conditions.
[144] While Klebuc C.J. was faced with some of these same
arguments, he relied on the fact that similar arguments had been
raised and rejected in other class actions involving
pharmaceutical drugs. To the argument that a general answer to
the question of whether Vioxx poses an increased risk of, for
example, heart attack or stroke does not go far in "proving" that
an individual's heart attack or stroke was caused by his having
taken Vioxx, other judges have pointed out that legal proof need
only be on the balance of probabilities and that the certainty of
scientific proof is not required. Thus, compelling epidemiological
or statistical evidence might be sufficient to establish individual
causation, or go a long way to doing so. Moreover, it is not
appropriate at the certification stage to try to anticipate the
extent to which the plaintiffs will succeed in relation to the
common issues.
[145] However, the wide diversity of complaints to which this
issue is addressed was not considered below. In my respectful
view, this diversity is fatal to consideration of this issue as a
"common" issue. Clearly it is not susceptible to a single answer
that would apply to the claims of all members of the class. Thus,
while it is conceivable that proof that Vioxx significantly
increased the risk of, for example, high blood pressure, might
support the claims of the induced or purchaser subclasses (and I
am by no means certain that it would), it would be irrelevant to
those who claim other unrelated adverse conditions or injuries.
[146] While, in theory, this lack of commonality across the
class could be addressed by reference to subclasses (more refined
and detailed, to be sure, than those identified in the certification
order), it is significant that no attempt was made at the
certification stage to do so, even though the class was divided
into subclasses at that stage. In fact, any realistic attempt to
break the question down into an array of distinct questions in a
way that would apply to every claim asserted shows how very
complex the question is. The appellants do not exaggerate, in my
view, when they assert that this issue would require the court to
determine and evaluate all of the effects that Vioxx may have on
all of the gastrointestinal and cardiovascular body systems. The
answers would almost necessarily vary from one sub-subclass
complaint to another. This is a far cry, in my respectful view,
from the "limited differentiation amongst class members"
envisaged in the suggestion, in Rumley, of the possibility of a
"nuanced" answer, where there might be variations in the answer
to a common issue among class members.

¶ 71 In commenting on additional proposed common issues at paragraph

154 and concluding her remarks on the commonality issue at paragraph 160,
Madam Justice Smith stated:

[154] This is a case, in my respectful view, where description of

an issue in a general way gives the impression of commonality,
where commonality in fact does not exist. While it may be true
that each claim depends on establishing that Vioxx was, in some
sense, "defective", the various claims mentioned in this
paragraph vary not merely in the degree of defectiveness
alleged, but in the very nature of the defect alleged.
...
[160] It is my conclusion that the fragmentation of the class into
subclasses, together with the range and diversity of claims
asserted by members of the subclasses against the appellant,
have together posed an insurmountable challenge to the quest
for commonality in relation to the proposed common issues. The
result is that each of the first five proposed common issues
necessarily encompasses a significant number of sub-issues, none
of which is common across the class, and the combination of
which renders each of the common issues and its proposed
resolution unacceptably complex.

¶ 72 Justice Smith's comments and conclusions on the issue of lack of

commonality are particularly apt and applicable to the circumstances of the
case at bar even though it does not share the same problems with respect to
multiple proposed subclasses.

¶ 73 In short, in my view, the determination of the proposed common

issues relating to causation in a common trial in the instant case will do little,
if anything, "to avoid duplication of fact finding or legal analysis". Further, it
has not been established that the resolution of the question of causal
associations or links between all of the chemicals enumerated in the plaintiffs'
action are "necessary to the resolution of each class members claim" and in
fact that the resolution of this issue with respect to many or most of these
chemicals is necessary to the resolution of any of the potential claims. The
plaintiffs have undertaken an ambitious claim to address all of the potential
claims that might arise out of the effects of the spray program conducted at
Base Gagetown over the past 53 years. In doing so, they have over reached
and framed an overly broad action defining the causation issues in very
general terms and for which they have not demonstrated that the proposed
common issues could be resolved in a practical or manageable fashion or
would advance the resolution of the claims in a fair, efficient and manageable
way.

Section 6(1)(d) -- Preferable Procedure

¶ 74 The fourth criteria for certification under the CPA is whether a class
proceeding "would be the preferable procedure for the fair and efficient
resolution of the dispute". The requirement that the class proceeding be
the preferable procedure for resolving the dispute differs from the
comparable Ontario and British Columbia sections which speak to the
"preferable procedure for resolving the common issues".

¶ 75 Although the New Brunswick legislation specifically directs the Court

to consider the greater context of the overall "dispute" and not merely the
"common issues" in determining the preferable procedure criteria, the
distinction in the wording does not appear to provide for any significant
difference in the analytical approach to be undertaken than what is required
with respect to the preferability criteria under the Ontario CPA. In Hollick v.
Toronto (City), supra, (at paras. 29 & 30) the Supreme Court of Canada
directed that in considering the preferability criteria under the Ontario
legislation the Court must assess the common issues in relation to the claims
as a whole:

29 The Act itself, of course, requires only that a class action

be the preferable procedure for "the resolution of the common
issues" (emphasis added), and not that a class action be the
preferable procedure for the resolution of the class members'
claims. I would not place undue weight, however, on the fact that
the Act uses the phrase "resolution of the common issues" rather
than "resolution of class members' claims". As one commentator
writes:

The [American] class action [rule] requires that the class

action be the superior method to resolve the "controversy."
The B.C. and Ontario Acts require that the class proceeding
be the preferable procedure for the resolution of the
"common issues" (as opposed to the entire controversy).
[This] distinctio[n] can be seen as creating a lower
threshold for certification in Ontario and B.C. than in the
U.S. However, it is still important in B.C. and Ontario to
assess the litigation as a whole, including the individual
hearing stage, in order to determine whether the class
action is the preferable means of resolving the common
issues. In the abstract, common issues are always best
resolved in a common proceeding. However, it is important
to adopt a practical cost-benefit approach to this procedural
issue, and to consider the impact of a class proceeding on
class members, the defendants, and the court.
See Branch, supra, at para. 4.690. I would endorse that
approach.

30 The question of preferability, then, must take into account

the importance of the common issues in relation to the claims as
a whole. It is true, of course, that the Act contemplates that class
actions will be allowable even where there are substantial
individual issues: see s. 5. It is also true that the drafters
rejected a requirement, such as is contained in the American
federal class action rule, that the common issues "predominate"
over the individual issues: see Federal Rules of Civil Procedure,
Rule 23(b)(3) (stating that class action maintainable only if
"questions of law or fact common to the members of the class
predominate over any questions affecting only individual
members"); see also British Columbia Class Proceedings Act, s.
4(2)(a) (stating that, in determining whether a class action is the
preferable procedures, the court must consider "whether
questions of fact or law common to the members of the class
predominate over any questions affecting only individual
members"). I cannot conclude, however, that the drafters
intended the preferability analysis to take place in a vacuum.
There must be a consideration of the common issues in context.
As the Chair of the Attorney General's Advisory Committee put it,
the preferability requirement asks that the class representative
"demonstrate that, given all of the circumstances of the
particular claim, [a class action] would be preferable to other
methods of resolving these claims and, in particular, that it would
be preferable to the use of individual proceedings" (emphasis
added): M. G. Cochrane, Class Actions: A Guide to the Class
Proceedings Act, 1992 (1993), at p. 27.

¶ 76 Section 6(2) of the New Brunswick CPA sets out six factors for the
Court to consider in determining whether a class proceeding would be the
preferable procedure for the fair and efficient resolution of the dispute:

6(2) In determining whether

preferable procedure for
a class proceeding would be the
the fair and efficient resolution of
 the dispute, the court shall consider

whether questions of fact or law common to the class

(a) members predominate over any questions affecting only
individual members,
whether a significant number of the class members
(b) have a valid interest in individually controlling the
prosecution of separate proceedings,
whether the class proceeding would involve claims that
(c) are or have been the subject of any other proceedings,
whether other means of resolving the claims are less
(d) practical or less efficient,
whether the administration of the class proceeding
(e) would create greater difficulties than those likely to be
experienced if relief were sought by other means, and
any other matter the court considers relevant.
(f)
¶ 77 These factors are not included in the Ontario legislation and although
the specific wording differs somewhat in fairly minor respects, the New
Brunswick legislation basically tracks the British Columbia provisions relating
to preferability considerations, with the addition of a sixth consideration in
section 6(2)(f) directing that the court shall also consider any other matter it
considers relevant. The legislation in Alberta and Newfoundland and Labrador
are similar to the British Columbia model while Nova Scotia's includes the
sixth consideration present in the New Brunswick legislation.

¶ 78 In Tiemestra v. Insurance Corp. of B.C., [1996] B.C.J. No. 952

(B.C.S.C.), Esson, J. discussed the differences between the Ontario and British
Columbia provisions on the question of "predominancy" and concluded that
the British Columbia provisions dealing with the preferable procedure criteria
were more restrictive than Ontario's. In addressing the British Columbia
provisions at paragraph 14 of his decision he stated:

That section, not being mandatory in its terms, is less restrictive

than the American Rule 23(3). But by requiring predominancy
and four other matters to be considered in relation to the
important question of "preferable procedure," it is more
restrictive than the Ontario Act. Although the other four
sub-sections of s. 4(2) may be less significant in this regard, they
all tend in some degree to restrict the circumstances in which
certification should be granted.

¶ 79 This decision was affirmed on appeal ([1997] B.C.J. No. 1628),

however in Campbell v. Flexwatt Corp., [1997] B.C.J. No. 2477, the British
Columbia Court of Appeal held that although the issue of predominance must
be considered it is not necessarily determinative of the question of
preferability and stated:

Although the issue of predominance still arises as a factor for

consideration when determining whether or not a class
proceeding would be the preferable procedure for the fair and
efficient resolution of the common issues, nowhere does the Act
mandate that if an individual issue should predominate, an action
must not be certified. Instead, the Act sets out a variety of
factors to be considered. The existence of an individual issue is
not necessarily determinative.

¶ 80 In Class Actions Law and Practice, Second Edition, Eizenga,

Peerless, Wright & Callaghan, LexisNexis Canada Inc. 2008, the authors
discuss the differences between the two approaches and conclude that despite
the "predomination" consideration mandated in the British Columbia statute
being considered a more restrictive test it has not differed greatly from the
approach taken in Ontario. At paragraph 3.127 of the text the authors state:

s. 3.127 Despite the statutory language, a review of the

reasons delivered by the courts of British Columbia and Ontario
to date has not indicated that in reality the presence of the
reference to predomination in the British Columbia statute has
generated a more restrictive test for certification. The presence
of numerous individual issues is a matter which Ontario courts
have considered in determining the preferability of class
proceedings.

¶ 81 Section 6(2) of the New Brunswick CPA specifies generally the same
five considerations on the question of preferability as provided in the British
Columbia provisions, however, it adds the sixth directive that the court is to
consider "any other matter the court considers relevant". Arguably this
additional directive could make the New Brunswick provisions less restrictive
than British Columbia's and more in line with the Ontario approach, although
I am not convinced that it is particularly important from a practical standpoint
to engage in an over analysis of the distinctions in the provisions from the
various jurisdictions. In the final analysis, differences in the wording of the
various Acts would appear to be more distinctions without any real or
significant differences as ultimately the court's task is to determine whether
"a class proceeding would be the preferable procedure for the fair and efficient
resolution of the dispute" (sec. 6(1)(d)), while considering the factors listed in
section 6(2)(a) to (e) as well as any other matter the court considers relevant
(section 6(2)(f)).

¶ 82 With this said, the jurisprudential starting point for addressing the
issue of preferability is Hollick v. Toronto (City), supra, at paragraphs 27 &
28:

27 I cannot conclude, however, that "a class proceeding would

be the preferable procedure for the resolution of the common
issues", as required by s. 5(1)(d). The parties agree 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 also Abdool v. Anaheim Management
Ltd. (1995), 21 O.R. (2d) 453 (Div. Ct.); compare British
Columbia Class Proceedings Act, s. 4(2) (listing factors that court
must consider in assessing preferability). Beyond that, however,
the appellant and respondent part ways. In oral argument before
this Court, the appellant contended that the court must look to
the common issues alone, and ask whether the common issues,
taken in isolation, would be better resolved in a class action
rather than in individual proceedings. In response, the
respondent argued that the common issues must be viewed
contextually, in light of all the issues -- common and individual --
raised by the case. The respondent also argued that the inquiry
should take into account the availability of alternative avenues of
redress.
28 The report of the Attorney General's Advisory Committee
makes clear that "preferable" was meant to be construed broadly.
The term was meant to capture two ideas: first the question of
"whether or not the class proceeding [would be] a fair, efficient
and manageable method of advancing the claim", and second, the
question of whether a class proceeding would be preferable "in
the sense of preferable to other procedures such as joinder, test
cases, consolidation and so on": Report of the Attorney General's
Advisory Committee on Class Action Reform, supra, at p. 32. In
my view, it would be impossible to determine whether the class
action is preferable in the sense of being a "fair, efficient and
manageable method of advancing the claim" without looking at
the common issues in their context.

¶ 83 Thus "preferability" incorporates these two concepts which have been

included in sections 6(1)(d) and 6(2) of the New Brunswick CPA. The guiding
principles relating to the preferability criteria under the CPA were very
succinctly summarized in Pearson v. Inco Ltd., supra, by the Ontario Court
of Appeal at para. 67:

67 In Cloud, at paras. 73-75 Goudge J.A. identified a number

of principles that apply in determining whether the plaintiff has
met the preferable procedure requirement. I would summarize
them as follows:

The preferability requirement has two concepts at its

1. core: first, whether the class action would be a fair,
efficient and manageable method of advancing the
claim; second, whether the class action would be
preferable to other reasonably available means of
resolving the claims of class members.
The analysis must keep in mind the three principle
2. advantages of class actions: judicial economy, access to
justice, and behaviour modification.
This determination requires an examination of the
3. common issues in their context, taking into account the
importance of the common issues in relation to the
claim as a whole.
The preferability requirement can be met even where
4. there are substantial individual issues; the common
issues need not predominate over the individual issues.

¶ 84 None of the parties to this motion addressed, argued or raised issues

with respect to the considerations enumerated in sections 6(2)(b), (c) or (e)
of the CPA and those considerations do not come into play to any significant
degree in the case at hand.

¶ 85 With respect, however, to the provisions of sub-section 6(2)(d) of the

CPA and the second concept of preferability referred to in the Hollick,
Pearson and Cloud decisions, the Attorney General submits that the
administrative regimes created through the federal Pension Act, R.S.C.
1985, c. P-6, the Department of Veteran's Affairs Act, R.S.C. 1985, c. V-1,
the Veterans Review and Appeal Board Act, S.C. 1995, c. 18, the
Canadian Forces Members and Veterans Re-establishment and
Compensation Act, S.C. 2005, c. 21 and the Government Employees
Compensation Act, R.S.C. 1985, c. G-8, s. 4, together with their respective
compensation and benefit schemes available to members of the military,
veterans, federal employees and other potential beneficiaries under the
schemes would provide preferable methods of resolving class members'
claims.

¶ 86 The proposed definition of class members as discussed previously is

very broad and includes anyone who was located within 10 kilometers of the
base over a 53 year period and claims injuries or risk of injury from exposure
to the toxic chemicals or property damage from this use. Obviously, that
definition potentially includes many claimants that would not be military
personnel, veterans or federal employees and would not meet the basic
eligibility requirements to receive benefits under the related regimes. Refusal
to certify the broadly defined proposed class on the basis that many of them
might be eligible for benefits under these federal schemes would do little to
promote access to justice for all of the potential claimants who are not eligible
for compensation or benefits under those schemes.

¶ 87 Further, resort solely to the federal compensation and benefit

regimes as avenues of potential compensation would not provide an
instrument for the resolution of all of the "claims" of the potential claimants.
Section 6(2)(d) directs that as part of the preferable procedure analysis the
court is to consider "whether other means of resolving the claims are less
practical or less efficient". It does not direct that the court is to consider
whether some members of the putative class might be eligible to receive
some benefits from other regimes, although arguably those considerations
might fall under section 6(2)(f) where the court is directed to consider any
other matter it considers relevant. In any event, the plaintiffs' claims as
pleaded and the relief being sought go far beyond what would be covered or
available to potential claimants by way of benefits or compensation under the
federal regimes.

¶ 88 The plaintiffs claim, inter alia, compensatory damages including

aggravated damages for personal injuries, general and special damages,
damage to property, diminution of property values, costs of relocating, special
damages for medical expenses, punitive and exemplary damages, funding for
a medical monitoring program and damages pursuant to the Fatal Accidents
Act, arising as a result of alleged negligence, battery, trespass, strict liability
and nuisance and breaches of fiduciary duties in the administration of the
herbicide spray program.

¶ 89 I have not been persuaded that the potential availability of some

benefits to some members of the putative class, as benefits or compensation
for some of the claims being advanced in the proposed action would constitute
a preferable procedure for the fair and efficient resolution of the claims of the
members of the putative class as proposed in this case. Such a restricted
approach would not serve the objective of access to justice. Be that as it may,
I have also not been persuaded that the plaintiffs established that the class
proceeding as proposed would provide for an efficient and manageable
method for the resolution of the dispute.

¶ 90 Arguably the use of a class proceeding would likely more readily

facilitate access to justice to those potential claimants who are interested in
advancing a claim against the defendant related to herbicide use at Base
Gagetown. The costs of pursuing an individual environmental tort action with
its inherent complexities from a legal, factual and proof perspective may be
prohibitive for many individual claimants but would be less so if several
claimants and or their counsel could pool their resources and efforts in a
common cause. The benefits of the economies of scale created by such pooling
of resources and efforts would seem at first glance readily apparent. The
economies of scale are less apparent, however, where significant individual
issues remain to be determined in a common issues trial as a result of too
broadly stated proposed common issues together with an inefficient and
unmanageable plan to try the proposed common issues.

¶ 91 Access to justice, although one of the most important objectives of

class proceedings, is not the only consideration and I am not satisfied that the
proposed class proceeding would result in any significant advancement of the
goal of judicial economy or that it would provide an efficient and manageable
method of resolving the dispute. As explained previously in addressing the
common issues (section 6(1)(c)) criteria of these reasons, the trial of the
proposed common issues would quite likely either become overwhelmed or
bogged down by the individual issues contained within them; or their
resolution, even if possible to resolve in a common issues trial, would do little
to advance the resolution of the individual issues which would still be largely
left to be dealt with in the individual proceedings.

¶ 92 Further, the resolution of many of the proposed common issues, may

have no effect on any of the individual claims or issues in any event, as it has
not been established that there are any claimants who have potential claims
relating to all of the enumerated chemicals or that all of the disease or
medical conditions enumerated have been contracted or are likely to be
contracted by any of the potential claimants. An inquiry into those areas may
very well result in no benefit or advancement of the class proceeding or be of
benefit to any of the proposed class members. Such potentially needless
inquiries could very well result in a significant disservice to the interests and
objective of judicial economy.

¶ 93 For these reasons, I have not been persuaded that the plaintiffs'
proposed class proceeding, as presently constituted, would be the preferable
procedure for the fair and efficient resolution of the dispute or that it would
advance, to any degree, the objectives of judicial efficiency and economy.

Section 6(1)(e) -- Appropriateness of Proposed Plaintiff

Representatives

¶ 94 With respect to the criteria under section 6(1)(e) of the CPA, there
is no issue that the plaintiffs would fairly and adequately represent the
interests of the class or that they do not have a conflict with the other class
members with respect to the common issues. Neither is there any issue that
they have produced a workable plan to notify class members of the class
proceeding.

¶ 95 Sub-section 6(1)(e)(ii) also requires, however, that the person or

persons who seek to be appointed as the representative plaintiffs produce "a
plan for the class proceeding that sets out a workable method of advancing the
 class proceeding on behalf of the class". In my view, and for the reasons
already stated and relating to the commonality and preferred procedure
criteria, the plaintiffs have not established that they have a workable method
for advancing the proposed class proceeding in a fair, efficient and
manageable way. In fact, I am satisfied that the evidence tendered on this
issue establishes that the plan they have proposed is indeed unworkable.

Property Damage Claims

¶ 96 With respect to the property damage component of the proposed

class proceeding, no evidence was presented to establish that in fact there is
an actual claimant who claims property damages caused by the spraying
conducted on the base. Absent evidence of an actual potential claimant
consideration of whether any of the criteria under section 6 of the CPA have
been met would be a wholly academic and unwarranted exercise. The
plaintiffs bear the burden of establishing the certification criteria have been
met. In short, they have failed to show any basis in fact to support the
certification of the property damage claims.

Conclusion and Disposition

¶ 97 In conclusion and for the foregoing reasons, I find that the plaintiffs
have failed to establish an identifiable class, to define workable and
manageable common issues and to establish that a class action would be the
preferable procedure for proceeding within the requirements of sections
6(1)(b),(c) and (d) of the Class Proceedings Act. Their motion for class
certification is therefore dismissed.

S.J. McNALLY J.

cp/e/ln/qlrxg/qlmxb

Top

Legal Disclaimer | Privacy Policy | Copyright 2004 LexisNexis Canada Inc. All rights reserved.