Many landfills cause a variety of emissions that generate undesirable effects for surrounding property owners, such as odour, dust and noise. In Canada, it has historically been too expensive for individuals to sue landfill operators and owners over such nuisance concerns. This has changed with the introduction of class actions.
Class actions allow large groups of individuals, often thousands, to undertake legal action in specific circumstances. Where many have suffered injury or other damages a defendant may be required to pay out substantial monetary awards. Based on the experience in the U.S., court awards against a defendant can have catastrophic consequences.
In 1998, an Ontario judge ordered the “certification” (the first step in a class action lawsuit for nuisance and negligence) of a class of 30,000 residents in the area surrounding the Keele Valley landfill site. The landfill is owned and operated by the City of Toronto and receives the majority of the city’s waste. The city appealed the certification to the divisional court. Recently, the court unanimously allowed the city’s appeal and overturned the certification.
In reaching its decision, the court made a number of observations. Of the 30,000 or more members of the proposed class, the city recorded complaints of 150 persons (or 0.5 per cent of the proposed class) from 1991 to 1997. Ten individuals complained more than once and the primary complaints were of odours, allegedly emanating from the landfill.
Other industries near the landfill include: two landfills, a quarry, a waste transfer station, various recycling activities, a plastics factory, an asphalt plant, private compost operations and farms. The court noted that the Keele Valley landfill had been commended to the United Nations as a world leader in greenhouse gas reduction due to its “highly sophisticated” landfill gas extraction plant.
In support of the position that the landfill had caused him injury, plaintiff John Hollick swore that his home (which was east and downwind of the landfill) had often been “saturated” by the stench of garbage, resulting in illness to his wife. Hollick also stated that a number of persons who occupy the lands generally east of the landfill had complained about the odour. However, the city denied that the facility was the source of the odour and the court found that the complaints of these people were not evidence of the legitimacy of Hollick’s allegations.
The court did find that the statement of claim disclosed a legally recognizable cause of action in alleging that Toronto permitted the landfill to emit toxic gases and odours which allegedly interfered with the enjoyment of lands and caused health problems. However, under the Ontario Class Proceedings Act there must be a class whose members (in such a case) have all suffered similar interference with the use and enjoyment of their property.
The court found that the evidence presented did not demonstrate that it was likely that all 30,000 persons had suffered the interference. To complicate matters, the city provided evidence that many of the complaints were attributable to other local industrial and farm activities. Furthermore, even if it was assumed that Keele Valley was the cause of all the complaints, the court believed that 150 people making complaints over a seven-year period was insufficient evidence that 30,000 people had been deprived of the enjoyment of their property.
From a landfill operator’s perspective, the essence of the decision is that there are tight restrictions on establishing both the appropriate class of plaintiffs and the extent of the evidence required to prove common issues for all (or substantially all) of the class members. Where there is an event such as a plane crash it can easily be established that the class of plaintiffs (passengers on the plane) have common issues. The complaints described in the case of Keele Valley, however, relate to different dates and locations spread over seven years and 16 square miles. Following this court decision, complaints about nuisance effects from landfills will have to meet a very high evidentiary standard in order to be able to rely on a class action to achieve judicial relief.
A flood of American-style large class action lawsuits appears unlikely for the time being. However, landfill operators shouldn’t relax completely. Leave has been granted to appeal the decision to the Ontario Court of Appeal. That hearing is scheduled for October 14, 1999.