Principles of Certification of a Class Action

A very recent decision Kirk v. Executive Flight Centre Fuel Services, 2017 BCSC 726 outlines the principles to be considered for certification of a class action.

This is a very interesting action in which a a “single incident mass tort” resulted from an oil spill and the claim is for compensation and claims against all of the defendants in “negligence, nuisance and the rule in Rylands v. Fletcher (1868), L.R. 3 H.L. 330 (U.K.)”.


“The action arises from a spill of approximately 35,000 litres of Jet A1 fuel into Lemon Creek, which is in the Slocan Valley of the West Kootenay region of British Columbia, on July 26, 2013. 

The spill occurred as a result of a forty-foot fuel tanker truck overturning into the watercourse.  The tanker truck driven by the defendant Mr. LaSante was travelling down a forest service road which ran alongside the creek. 

Mr. LaSante was in search of a staging area for refueling helicopters involved in fighting a forest fire in the area. 

The spill led to an evacuation order being issued by the Interior Health Authority requiring people to vacate initially an area within a three-kilometre radius of the spill site and an area of three kilometres on either side of the affected waterways from an upstream point of the fuel spill site to a downstream point of the confluence of the Slocan and Kootenay Rivers.  The evacuation area is defined in the application as the Evacuation Zone.  The order affected approximately 2,776 properties.  A “do not use water” order was also issued by the Interior Health Authority for residents who drew water from Lemon Creek, Slocan River and Kootenay River.”

The applicant met the requirements outlined in Section 4(1) of the Class Proceedings Act, R.S.B.C. 1996, c 50 [CPA], and the action was certified a class proceeding.


“The goals of the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA], are access to justice, behaviour modification and judicial economy.  These goals are to be kept in mind in the certification process.  The requirements for obtaining certification are set out in s. 4(1) of the CPA:

4(1)      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:

  • the pleadings disclose a cause of action;
  • there is an identifiable class of 2 or more persons;
  • the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members;
  • a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;
  • there is a representative plaintiff who
    • would fairly and adequately represent the interests of the class,
    • 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
    • does not have, on the common issues, an interest that is in conflict with the interests of other class members

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 those specified in s. 4(2) of the CPA as follows:

  • whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members;
  • whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions;
  • whether the class proceeding would involve claims that are or have been the subject of any other proceedings;
  • whether other means of resolving the claims are less practical or less efficient;
  • whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.

The onus is on the party seeking certification to meet all of the requirements.  The burden is not an onerous one.  The cause of action requirement in s. 4(1)(a) is satisfied unless, assuming all the pleaded facts are true, it is plain and obvious that the claim cannot succeed: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980; Hollick v. Toronto (City), 2001 SCC 68 at para. 25.  With respect to the other four requirements in s. 4(1), the applicant need only provide a minimum evidentiary basis that shows some basis in fact for each of them; the certification hearing is procedural and not the forum where the merits of the action are decided: Hollick at paras. 24–25; Dow Chemical Company v. Ring, Sr., 2010 NLCA 20 at para. 14, leave to appeal ref’d [2010] S.C.C.A. No. 187.  The “some basis in fact” standard does not require the court to resolve conflicting facts and evidence at the certification stage.  The “some basis in fact” inquiry is limited as it is a low hurdle.  The authorities on this point have reiterated that at the certification stage the court is ill-equipped to resolve such conflicts: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 102 [Pro-Sys]. 

If the five conditions are met, the court must certify the action. “

This decision goes through each factor to consider and is a great overview of certification analysis.


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