Water case law in Québec 7: Class action for contamination of municipal groundwater sources

(BY HUGO)

In an interlocutory decision Spieser v. Canada (General Attorney) (in French), the Superior Court denies a motion by the General Attorney of Canada to annul a 2007 judgement authorising a class action further to the contamination of municipal groundwater sources due to the leakage of trichloroethylene (TCE) from a military base.

According to the General Attorney, the basis for the action is extra-contractual civil liability and requires the demonstration of (i) a fault, (ii) a damage, and (iii) a causality link between both as per section 1457 of the Civil Code of Québec (CCQ) - class action is only the procedural vehicle.

The motion essentially argues that the common questions raised by the action are negligible, and that individual recourses would be more appropriate given the very limited number of persons able to reasonably argue that they were affected by TCE.

The General Attorney stresses that exposure to TCE varies widely between members of the authorised group, as well as the nature of alleged illnesses which might have been caused by a large number of external causes. According to the General Attorney's co-defendant, the medical evidence on file establishes that the existence of a damage and a causality link with exposure to TCE is a fundamentally individual question that cannot be treated collectively.

Thus, the questions addressed by the Court relate to the very conditions enabling the designation of the group required for a class action as well as the description of the group.

The dispositions of the Code of Civil Procedure relevant to class actions in Québec can be found at section 1002 and ff.

The Court first states that the General Attorney's arguments rely on an expert report analysing only a fraction of the facts that may be brought as evidence at hearing on the merits. Second, the Court establishes that analysis of the causality link might not be a fundamentally individual question because the damages claimed might be a function of the increased risk of developing an illness.

After comparing alternative procedural options, the Court concludes that class action is the best procedural vehicle for all the parties to submit their case to the tribunal and dismiss the motion.