How would you apply the preferability procedure

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Reference no: EM133613227

Question: The B.C. Court of Appeal in Baker v. Rendle, 2017 BCCA 72, dismissed an appeal from a lower court decision denying class certification of a private nuisance [tort] claim, finding that a class proceeding was not the "preferable procedure" [for an environmental damage case].

The Court of Appeal found that common issues in the conduct of the defendant existed, such that the common issues certification requirement had been met, but the Court ultimately concluded that a class proceeding was not the preferable procedure. Assessing liability for nuisance involves subjective considerations that are particular to each proposed class member - namely, the effect of the defendant's conduct on each proposed class member.

Per the Class Proceedings Act:

Class certification

4 (1)Subject to subsections (3) and (4), the court must certify a proceeding as a class proceeding on an application under section 2 or 3 if all of the following requirements are met:

(a)the pleadings disclose a cause of action;

(b)there is an identifiable class of 2 or more persons;

(c)the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members;

(d)a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;

(e)there is a representative plaintiff who

(i)would fairly and adequately represent the interests of the class,

(ii)has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii)does not have, on the common issues, an interest that is in conflict with the interests of other class members.

(2)In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the court must consider all relevant matters including the following:

(a)whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members;

(b)whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions;

(c)whether the class proceeding would involve claims that are or have been the subject of any other proceedings;

(d)whether other means of resolving the claims are less practical or less efficient;

(e)whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.

a) Given what you know about this case, how would you apply the preferability procedure as stated in the Act? Comment also by using the 3 prongs (8)

Reference no: EM133613227

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