Common Law – Public Causes of Action

The judge-made common law recognizes various types of harm as being worthy of intervention by the court.  However, most of these involve harm to an individual or a small group of individuals (or their property).  The Courts have not been as responsive in considering private actions that hurt the environment, or the public at large.  If everyone suffers, the courts have had a tendency to view this as a political, rather than legal, matter. 

Nonetheless, the courts will look at harm suffered by the public at large.  Suing for a “public nuisance” has some drawbacks, however, which will be examined below. 

Moreover, British Columbia has enacted a Class Proceedings Act which allows large numbers of people who have suffered similar harm to have their cases heard as a single case (a “class action”).  While technically still focused on the harm to each person, this procedural approach may allow the private causes of action that the courts recognize to take on a more public dimension.

Any person considering litigation under these or private causes of action should consult a lawyer. 

Public Nuisance

An action may be brought for public nuisance when there has been an unreasonable interference with public convenience or welfare, affecting a substantial number of people.  This type of claim is very different from common law private nuisance claims involving damage to a particular property or person. 

On its face, public nuisance lends itself to environmental litigation.  Most environmental problems affect the public at large and the goals of the watershed advocate are probably on protecting the public, and not the rights of a particular property owner. 

However, the common law has always held that the rights of the public must be protected by the Attorney General, a minister of the provincial government.  As a general rule, private citizens cannot bring a public nuisance claim on behalf of the public.  The two recognized exceptions to this rule are:

·         Where the Attorney General has consented to the claim being brought by a private citizen; or

·         Where the private citizen has suffered a “special harm” as a result of the public nuisance that is of a fundamentally different nature than that suffered by the public at large. 

This creates a real barrier for most public interest cases, unless the provincial government is on-side (in which case there is probably no need for the public nuisance suit, as the province can usually deal with environmental problems through environmental legislation).  To make matters worse, it is not always clear what type of “special harm” will be required – the mere fact that the private citizen suffers the harm more intensely than other members of the public may not be enough.  

Public nuisance claims have been used to deal with toxic spills, air pollution and water pollution, among others.  However, the significant barriers to a citizen initiated public nuisance action will in many cases prevent the cause of action from being a useful tool. 

Class Actions

In British Columbia, class actions, or class proceedings, are authorized by the Class Proceedings Act.  Less complex representative proceedings may be brought further to Rule 5 of the Supreme Court Rules.

Class proceedings recognize that in certain cases, large numbers of people suffer similar injuries as a result of a defendant’s conduct.  In these cases it may more efficient to handle the claims of many plaintiffs against a single defendant.  The class proceedings recognizes the existence of a “class” of similarly affected people, and allows for a single claim to be filed on behalf of all class members.  Each member of the class of people must share the same common law (or sometimes statutory) private cause of action – class action legislation does not create a right to sue if there wasn’t one there already.  

One of the key advantages a class procedure offers is that it spreads the cost of litigating among all of the class members who stand to benefit from the proceeds of the litigation.  This is important, because in some cases, the cost of successfully litigating an action may actually outweigh the damages sustained by any one plaintiff, making it uneconomical to proceed with the claim.  Such prohibitive costs can effectively bar many actions from proceeding and may effectively rob plaintiffs of a legal remedy.

Access to justice, and the availability of class procedures, is a particular concern in environmental cases. Environmental cases frequently require costly scientific expertise and study to investigate and prove the causal connection between the defendant’s conduct and the injury.  It is also characteristic that injuries may be minimal to any one individual – but have been sustained by thousands of individuals.  The advantages that can be realized from banding the environmental claims of many plaintiffs together can make the difference between a case being cost-effective to litigate or not.

However, some recent attempts to use class action proceedings to fight air pollution have not been successful.  The courts have held that it will be difficult in such cases to identify legally acceptable “classes” of affected people, because different people will be affected differently depending on how far they are from the source of the pollution.

Class proceedings have been utilized in Canada to advance such claims as “toxic torts” (e.g. toxic spills, or water contamination) and product liability claims (e.g. breast implant litigation).

Related Guide Pages:

·         Common law Causes of Action

·         The Courts – Private Disputes

For more information about Public Nuisance:

·         “Report on Civil Litigation in the Public Interest” – A 1980 Report of the Law Reform Commission of B.C. on Public Nuisance.  Although dated, much of the content of the report is still relevant. 

For more information about Class Actions:

·         Electronic Text of the Class Proceedings Act.

·         How to Certify Class Actions in BC – An article by Vancouver-based lawyer Brian T. Ross.

·         “Class Actions” – A web-page on class proceedings from a lawyer referral company.