BC Court Declines to Certify Overdose Prevention Class Action After Finding No Basis in Fact for Causation

A recent decision from the Supreme Court of British Columbia underscores the Court’s cautious approach to certifying class actions in nuisance cases, particularly when the alleged harm arises from varied and diffuse conduct. In 1111 Seymour Residences Ltd. v. Vancouver (City), 2024 BCSC 2304, the Court dismissed an application to certify a proposed class action for claims in public and private nuisance relating to the operation of an overdose prevention site (OPS) in downtown Vancouver. The Court found that the plaintiffs’ class definition was arbitrary, risked conflict between class members and that there was no common causation question.

The plaintiffs’ proposed class definition was tied to an area that included properties bordering streets and alleyways one block in all directions from a downtown park. The Court found the geographic boundary to be arbitrary. The alleged disturbances occurred both inside and outside the defined area, so the boundary was not rationally connected to the alleged nuisances. Put simply, there was “no basis in fact for the plaintiffs’ proposed class definition” and “no objective basis to accept the boundaries proposed by the plaintiffs.”

The Court also held that the alleged nuisances were too diffuse because they captured diverse actions committed by various individuals over an extended period, making it impossible to frame a question for all class members.

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• In refusing to certify the causation common issue, the Court noted that class actions in nuisance will generally be certified “only where there is a clear universal question, as individual damage assessments are central to liability”, citing Kirk v. Executive Flight Centre Fuel Services Ltd., 2019 BCCA 111, a leading case on class actions involving claims of nuisance.
• In order to certify the causation common issue, the plaintiff would have required some basis in fact to establish that all the impugned conduct was committed by users of the OPS. The Court held that an increase in service call data and incident reports to Vancouver Fire and Rescue Service following the opening of the OPS did not provide that basis in fact.