Background
In November 2021, the Sumas Prairie in Abbotsford experienced severe flooding, which led to significant damage and displacement. The plaintiffs have applied to certify this action as a class proceeding, alleging negligence and nuisance against the City of Abbotsford. The plaintiffs claim that the magnitude of the flooding resulted from Abbotsford’s failure to close the flood gates at the Barrowtown Pump Station in a timely manner.
The Sumas Prairie, a floodplain in Abbotsford, is continually drained by the Pump Station, operated and maintained by Abbotsford. Regardless of precipitation, without the Pump Station’s operation, the Prairie would be submerged within two to three days. The Pump Station features four flood gates designed to regulate water flow from the Fraser, Sumas, and Vedder rivers. Under normal conditions, the Sumas River flows through the open flood gates, merging with the Vedder River, and ultimately into the Fraser River. However, during reverse flow conditions, when the Fraser River’s water level is higher than the Sumas River, leaving the flood gates open can result in back flooding. This can flood the Outer Sumas Prairie and, if severe, the Inner Sumas Prairie. The operating procedures mandate that the flood gates be closed when the Fraser River’s water level reaches 3.0 meters.
On November 13, 2021, two atmospheric rivers brought intense rainfall to the area. By 8:25 am on November 14, 2021, the Fraser River’s water level had reached 3.04 meters. Water from the Fraser and Vedder Rivers flowed through the open flood gates, flooding the Outer Sumas Prairie. The flood gates were eventually closed at 11:35 am on November 15, 2021, by which time the Fraser River’s water level had surged to 6.87 meters. On November 16, 2021, the Sumas Dike overflowed and breached in two locations, causing extensive flooding in the Inner Sumas Prairie and forcing residents to evacuate.
The plaintiffs are seeking class action certification on behalf of those who suffered personal injury, displacement, or damages due to Abbotsford’s alleged misconduct during the Sumas Flood. The affected area includes over 1,400 properties in the Sumas Prairie.
Abbotsford contends that the flooding was caused by other sources, specifically the Nooksack River. The city opposes the class action certification and asserts that individuals with claims related to the flooding should pursue them individually.
Requirements to Certify a Class Action:
In order to certify a matter as a class action, an applicant must demonstrate that the requirements set out in s.4(1) of the Class Proceedings Act are supported by some basis in fact and that the pleadings disclose a cause of action that is not bound to fail.[1] This is not a high threshold, but while the court does not weigh the evidence, it must appropriately scrutinize it and be satisfied the evidence has some merit.
Do the Pleadings Disclose a Cause of Action?
An application for certification will not be granted if it is plain and obvious that the proposed claim cannot succeed. In making that determination, the court is to assume that the pleaded facts are true. The court was satisfied that the pleadings set out by the plaintiffs disclose causes of action in negligence, public nuisance, and private nuisance.
In regard to the negligence claim, the court recognized that it is unnecessary to undertake a full duty of care analysis where a duty of care has already been recognized in an analogous case. The court concluded that the duty of care relevant to this action has already been recognized in an analogous series of cases arising out of the 2011 Manitoba floods. In both instances, the governmental authority which controlled the waterways either took steps to divert water (Manitoba) or failed to divert water as prescribed in its operating procedures (Abbotsford). Both floods caused widespread property damage and many residents had to evacuate their homes.
The court additionally concluded that the pleadings include a relationship of foreseeability and proximity. The residents of the Sumas Prairie depend on Abbotsford to properly operate the Pump Station. Abbotsford was in control of the Pump Station at all times and would have been aware of the harm that the residents of the Sumas Prairie would suffer if it was not operated according to its operating procedures. The court was satisfied that the plaintiffs’ claims in negligence disclose a cause of action.
While Abbotsford argued the cause of the flooding originated from the Nooksack river, the court pointed out that a plaintiff does not have to prove the defendant was the sole cause of any injury or harm suffered. However, the full merits of Abbotsford’s argument are to be assessed at trial and not in a certification proceeding.
A public nuisance has been defined as any activity which unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort, or convenience. For a claim in private nuisance, the plaintiff must prove that the defendant’s conduct or acts, substantially and unreasonably interfered with their use and enjoyment of property. The court was satisfied the pleadings make the necessary allegations supported by reference to material facts to justify the claims in public and private nuisance.
Is There an Identifiable Class of Two or More Persons?
The applicant in a certification hearing must show there is an identifiable class containing two or more persons. The plaintiffs brought this action on behalf of three overlapping sub-classes consisting of all persons (and their estates) who were residents in the Sumas Prairie at the time of the flood and who claim to have suffered personal injury and/or damage to personal and/or real property as a result of the flooding. The sub-classes are divided by cause of action: negligence, public nuisance, and private nuisance.
The court was satisfied that the plaintiffs have established that there is an identifiable class of two or more members.
Class Definitions:
Abbotsford brought a number of objections to the proposed classes, one of which was that the area that the plaintiffs defined as the “Sumas Prairie” was overbroad. The court agreed as the area within which the sub-classes are to be identified must bear a relationship to the pleaded duty of care and the proximity relationship, and there must be some basis of fact to support the area of the sub-classes. The court ruled that the area identified by the November 16th Evacuation Order will be used to define the “Sumas Prairie”.
Abbotsford argued that the classes are not properly defined in a manner that would permit a member of the public to determine whether they are a member of the class as a whole or the sub-classes, but this objection failed.
Conflicting Interests Between Class Members:
A class action should not be allowed if class members have conflicting interests.
Abbotsford argued there is conflict between the Inner and Outer Sumas Prairie residents because if the Sumas Dike had not been breached, there would have been no damage to the Inner Sumas. The court determined that while there may be a conflict on damages based on whether the residents resided in the Outer or Inner Sumas Prairie, there is no conflict relating to Abbotsford’s duty of care in its operation of the Pump Station. However, each area should have it own representative plaintiff and the court granted the plaintiffs leave to amend the style of cause accordingly.
Abbotsford also argued that there is a conflict between residents who are subject to a covenant that may preclude them from obtaining relief, and those residents whose covenants provide Abbotsford with a right to indemnification. The court agreed that the issues facing residents with covenants are unique and are deserving of their own representative plaintiffs. The court granted leave to allow for the addition of such representative plaintiffs and to arrange for other counsel to represent the properties that are encumbered with the indemnification covenant.
Do the Claims of the Class Members Raise Common Issues?
An issue is considered “common” where its resolution is necessary to the resolution of each class member’s claim. The critical question that must be assessed is whether granted the certification of a class proceeding will avoid duplication of fact-finding or legal analysis. This is a low threshold for a plaintiff to meet as they need only show that the determination of a triable factual or legal issue will advance the litigation.
The court was satisfied that each of the following issues raised by the plaintiffs are issues in common:
- What caused the Sumas Flood;
- whether Abbotsford caused of contributed to the extent of the Sumas Flood;
- whether Abbotsford owed the Negligence Subclass Members a duty of care, what the standard of care owed was, and whether Abbotsford breached the standard of care;
- whether the Sumas Flood and Abbotsford’s associated activities unreasonably interfere with the public’s interest in health, safety, morality, comfort, or convenience, amounting to an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference;
- whether Abbotsford’s acts or omissions cause or contribute to the issuance of the evacuation order(s) issued with respect to the Private Nuisance Subclass Members’ properties and did the Sumas Flood or resulting evacuation amount to non-trivial and unreasonable interference with their use and enjoyment or properties subject to one or more mandatory evacuation order;
- whether some Private Nuisance Subclass Members who were ordered to or put on alert to evacuate from their homes as a result of the Sumas Flood, suffer damages for which Abbotsford is liable;
- whether a part of the Private Nuisance Subclass Members’ damages be assessed in aggregate, and if so, in what amount;
- whether Abbotsford is liable for damages and whether an award of punitive damages is required, and if so, in what amount;
- whether Abbotsford is liable to pay interest on an award of damages, and if so, in what amount;
- whether Abbotsford should pay the costs of individual damages assessments if they are liable for damages;
- what is the appropriate distribution of damages to the class, and whether Abbotsford should pay the costs of distribution, and if so, in what amount.
Despite Abbotsford’s objections, the court held all of these were common issues because they are common on a class-wide basis and will advance the litigation. The plaintiffs satisfied the evidentiary burden of showing some basis in fact that issues relating to causation will affect the entire class. The fact-finding process involved in determining whether Abbotsford is liable for punitive damages is also common to the entire class. Other issues such as those of interest, cost of individual damages assessment, and appropriate distribution of damages to the class will follow naturally if there is a finding of liability and an award of damages.
Is a Class Proceeding the Preferable Procedure?
There are at least 1,428 properties that have been identified by Abbotsford as lying within the Sumas Prairie. Even if only a small fraction of those properties decided to pursue claims arising out of the flooding, this would result in a multitude of proceedings. For each litigant to come forward individually would result in a duplication of expenses for each litigant and there would exist the very real possibility for inconsistent verdicts. Proceeding as a class action would serve judicial economy in this case.
The court also acknowledged that as in most cases where a class action is contemplated, Abbotsford would likely have more resources and a better ability to withstand individual litigants. The cost of proceeding individually would likely discourage many litigants who do not have the financial ability to fund their own proceeding. These potential claimants would be denied access to justice.
The court was satisfied that the common issues, particularly as they relate to causation predominate over any issues affecting only individual members. While some individual issues will remain, they can be determined after the common issues regarding liability and remedies have been determined on a class-wide basis.
The court concluded that a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues.
Are the Plaintiffs Appropriate Representatives?
The proposed representative plaintiffs must show they are able to fairly and adequately represent the interests of the class, that they have 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 that they do not have an interest that is in conflict with the interests of the other class members on common issues.
The plaintiffs acknowledged that the representative plaintiffs will need to be updated to include the interests of those who reside in the Outer Sumas Prairie and those who are subject to the indemnification covenant. Otherwise, the court had no concern about the appropriateness of the representative plaintiff.
Is the Litigation Plan Workable?
The court determined that the litigation plan will need some amendments given the need for further consultation with the new representative plaintiffs and counsel for those properties covered by the indemnification covenant. However, the litigation plan showed that the representative plaintiffs and class counsel understand the complexities of this litigation. The plan provides for a reasonable method for advancing the litigation, providing appropriate notices, a disclosure and discovery process and determination of individual issues. The court concluded that the litigation plan is workable.
Holding:
Certification of this claim as a class proceeding was granted.
If you have any questions about this article, please contact David McKnight, or a member of our Class Action group.
[1] Class Proceedings Act, R.S.B.C. 1996, c.50. (s.4(1))
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