AVIATION NOISE LAW
Sutherland v. Vancouver Int. Airport Authority
Cite as: 40 Cal.App.3d 471


SUPREME COURT OF BRITISH COLUMBIA

WILFRED GARY SUTHERLAND and SHERRYL SARA STEWART SUTHERLAND, Plaintiffs
AND:
THE ATTORNEY GENERAL OF CANADA and THE VANCOUVER INTERNATIONAL AIRPORT AUTHORITY, Defendants

Nov. 14, 1997
Docket C971485
Registry: Vancouver

REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE K. SMITH


Counsel for the Plaintiffs: Susan A. Griffin, Tracy Wachman

Counsel for the Defendant The Attorney General of Canada: George Carruthers, Laura Wanamaker

Counsel for the Defendant The Vancouver International Airport Authority: Allan P. Seckel, Ward K. Branch

Place and Date of Hearing: Vancouver, B.C., September 15, 16, 17, 18, 1997

[1] The plaintiffs claim damages for nuisance and compensation for expropriation of their land, both allegedly arising from the use of the recently-opened third runway at the Vancouver International Airport.

[2] The federal government, represented here by the defendant the Attorney General of Canada, owns the airport. The other defendant, the Vancouver International Airport Authority, operates the airport under a lease from the government through the Minister of Transport.

[3] The plaintiffs, since 1980, have owned and resided in a home in the Bridgeport area of Richmond, near the airport. By this application, they seek to have their claim in nuisance certified as a class proceeding pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50, and to have themselves appointed as representative plaintiffs. Their counsel abandoned their application to certify their claim based on expropriation.

[4] The plaintiffs' allegations of nuisance are set out in their statement of claim as follows:

15. The Third Runway opened on November 4, 1996 and to the present time the Defendants have operated or permitted the Third Runway to be used for both landings and takeoffs by jet aircraft flying at extremely low altitudes directly above or in close proximity to residences in the GVRD [the Greater Vancouver Regional District], especially the Bridgeport area of Richmond, which landings and takeoffs create excessive, deafening and disturbing noise and vibrations in residential areas of the GVRD including areas known as Bridgeport, Marpole, and South Vancouver ("Affected Areas") and have caused and continue to cause substantial and unreasonable interference with residential use and enjoyment of property in the Affected Areas, all of which amounts to actionable nuisance.

16. Particulars of the actionable nuisance created by the Defendants in the operation of the Third Runway include, but are not limited to:

(a) interference with normal conversation both in and out of the home;

(b) interference with the use of telephones, radio and television;

(c) interference with the performance of daily tasks;

(d) interference with and reduction in the quality of rest and sleep;

(e) creation or aggravation of hypertension;

(f) interference with the reasonable and comfortable use of gardens, patios, yards, and recreational property;

(g) interference in the normal use and enjoyment of community amenities in the Affected Areas;

(h) creation of fear and apprehension; and

(i) expulsion of noxious fumes in the vicinity of residential homes.

17. As a result of the nuisance created by the Defendants as set out in paragraphs 15 - 16, supra, the Plaintiffs and other members of the Class, have suffered substantial and unreasonable interference with the use and enjoyment of their properties and further have suffered reduction in the market value of their properties by rendering such properties undesirable, or significantly less desirable, as residences.

[5] The statements of defence deny the plaintiffs' allegations and, in the alternative, raise two dilatory pleas: that the alleged nuisance is authorized by statute and that it amounts to public nuisance for which no private action lies. As well, they plead contributory fault and failure to mitigate the alleged loss. The Crown pleads a further defence: novus actus interveniens. The identity of the third persons whose intervening acts are said to have caused the alleged loss is not disclosed in the pleading, but counsel for the Crown advised that the intention was to designate the airlines that use the airport.

[6] This action follows a long public process in relation to the third runway, which began in 1976 after it was identified as essential to enable the airport to handle expected increases in air traffic. An Environmental Assessment and Review Panel was formed in 1976 to conduct a public review of the environmental and socio-economic effects of the proposed runway and to consider ways of mitigating its negative effects and of compensating persons affected by them. Ultimately, the Panel reported to the Environment and Transport Ministries in September 1991. The Ministry of Transport accepted and acted on many of the Panel's recommendations. However, it rejected the recommendation that persons adversely affected by increased noise be identified and compensated. The Ministry took the position that it should concentrate on measures to mitigate the effects of noise on surrounding neighbourhoods, rather than to "give the airport a licence to be noisy." This lawsuit is a result of that decision.

[7] The relevant provisions of the Act are as follows:

4. (1) The court must certify a proceeding as a class proceeding on an application under section 2 or 3 if

(a) the pleadings disclose a cause of action,

(b) there is an identifiable class of 2 or more persons,

(c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members,

(d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, and

(e) there is a representative plaintiff who

(i) would fairly and adequately represent the interest of the class,

(ii) 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

(iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members.

(2) 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

(a) whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members,

(b) whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions,

(c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings,

(d) whether other means of resolving the claims are less practical or less efficient, and

(e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.

. . .

7. The court must not refuse to certify a proceeding as a class proceeding merely because of one or more of the following:

(a) the relief claimed includes a claim for damages that would require individual assessment after determination of the common issues;

(b) the relief claimed relates to separate contracts involving different class members;

(c) different remedies are sought for different class members;

(d) the number of class members or the identity of each class member is not known;

(e) the class includes a subclass whose members have claims that raise common issues not shared by all class members.

[8] If the five conditions in sub-sections 4(1)(a) to (e) are satisfied, the Act requires that the action be certified as a class proceeding. Here, the defendants agree that the plaintiffs have pled a cause of action in private nuisance as is required by sub-section (a), concede that the plaintiffs' last of three alternative class definitions satisfies the condition in sub-section (b), and contend that the plaintiffs have not satisfied the conditions in sub-sections (c) to (e) inclusive.

[9] The purpose of the Act is described in the following passage in Campbell et al v. Flexwatt Corporation et al (7 November 1997) Victoria CA22124/V02849/V02850/V02852/V02853/ V02856/V02867/V02895 (B.C.C.A.) at para. 25:

The Legislature enacted the Class Proceedings Act on 1 August 1995 to make available in this province a procedure for the fair resolution of meritorious claims that are uneconomical to pursue in an individual proceeding, or, if pursued individually, have the potential to overwhelm the courts' resources. Class proceedings are an efficient response to market demand only if they can resolve disputes fairly.

Those objectives must inform the consideration of this application.

[10] The plaintiffs define the proposed class as follows:
All persons who as of November 4, 1996 owned residential property including, but not limited to townhomes, condominiums, and detached and semi- detached homes, in Richmond or Vancouver, and whose property has been exposed to an increase in noise as a result of the use of the Third Runway at Vancouver International Airport. The Third Runway commenced operations on November 4, 1996.
[11] In their amended notice of motion, the plaintiffs ask for an order certifying a number of common issues. I have reproduced them in an appendix to these reasons.

[12] The plaintiffs delivered the amended notice of motion after the certification hearing to record their changed positions in response to questions that arose during the hearing. The first set of amendments developed out of and were presented during the plaintiffs' submissions. The final amendments were proposed in the plaintiffs' reply, after the defendants had presented their arguments. For convenience, I will refer to the original proposed issues as issues 1(a) to 1(o), to the first amended set of proposed issues as issues 2(a) to 2(k), and to the final amended set of proposed issues as issues 3(a) to 3(k).

[13] Issues 1(e) and 1(f) were abandoned during submissions. Issue 1(c) is misconceived; a cause of action in nuisance is not complete without damage, so issue 1(c) is subsumed in issue 1(a).

[14] The remaining issues can be grouped by their subjects. Issues 1(a), 1(b), 2(a), and 3(a) to 3(d) inclusive ("Group I") are concerned with the plaintiffs' burden of proving the elements of a claim in nuisance. The issue stated in 1(h) and 2(d) ("Group II") is a question of law. Issues 1(g), 1(i), 1(j), 2(c), 2(e), 2(f), 3(g), 3(h), and 3(i) ("Group III") relate to the defences of statutory authority and public nuisance. The issue repeated in 1(k), 2(g), and 3(j) ("Group IV") raises the substantive defence of novus actus interveniens. Issues 1(d), 2(b), and 3(k) ("Group V") deal with quantification of damages. Issues 1(l), 1(m), 1(n), 1(o), 2(h), 2(i), 2(j), 2(k), 3(e), and 3(f) ("Group VI") involve mitigation of the loss by the plaintiffs.

[15] The analysis must begin with the Group I issues, which relate to proof by the representative plaintiffs of the liability of the defendants to members of the proposed class. As was stated by the Court of Appeal in Campbell et al v. Flexwatt Corporation et al, supra, at para. 52:

This question of commonality of issues lies at the heart of a class proceeding, for the intent of a class proceeding is to allow liability issues to be determined for the entire class based on a determination of liability of the defendants to the proposed representative plaintiffs.
[16] To justify certification, a liability issue must, if resolved favorably to the representative plaintiffs, assist class members in the proof of their individual claims by establishing a material fact for all: Harrington v. Dow Corning Corp. (1996), 22 B.C.L.R. (3d) 97 (S.C.) at para. 47, or must at least substantially assist the class members to establish a material fact by deciding some important threshold factual issue - some important element of liability - common to all: Harrington, supra, at pars. 41, 47, Tiemstra v. I.C.B.C. (7 July 1997), Vancouver CA021870 (B.C.C.A.) at paras. 4, 14, Campbell et al v. Flexwatt Corporation et al, supra, at para. 53.

[17] The first step in the analysis is to identify the material facts to be proven by the plaintiffs. They will establish the yardstick against which the significance of the proposed common issues may be measured.

[18] A material fact is one that is necessary to formulate a complete cause of action: Wyman et al v. Vancouver Real Estate Board (1957), 8 D.L.R. (2d) 724 (B.C.C.A.) at p. 726, Troup v. McPherson (1965), 53 W.W.R. 37 (B.C.S.C.) at p. 39.

[19] The plaintiffs' cause of action is in nuisance, which is described as follows in J.G. Fleming, The Law of Torts, 8th ed. (Sydney: Law Book, 1992) at p. 416:

The gist of private nuisance is interference with an occupier's interest in the beneficial use of his land.
In Zbarsky v. Lukashuk (1991), 61 B.C.L.R. (2d) 349 (C.A.), at p. 355, the Court referred to the decision of the Supreme Court of Canada in St. Pierre v. Ontario (Minister of Transportation & Communications, [1987] 1 S.C.R. 906, 40 C.C.L.T. 200, 45 R.P.R. 298, 75 N.R. 291, 22 O.A.C. 63, 39 D.L.R. (4th) 10, 38 L.C.R. 1, and said:
The action in St. Pierre was based on nuisance. At p. 15 [D.L.R.], McIntyre J. referred with approval to the test for nuisance set forth in Fleming, The Law of Torts, 4th ed. (1971), p. 346:

The paramount problem in the law of nuisance is, therefore, to strike a tolerable balance between conflicting claims of landowners, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other. Reconciliation has to be achieved by compromise, and the basis for adjustment is reasonable user. Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort of the time and place. Reasonableness in this context is a two- sided affair. It is viewed not only from the standpoint of the defendant's convenience, but must also take into account the interest of the surrounding occupiers. It is not enough to ask: is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, Is he using it reasonably, having regard to the fact that he has a neighbour?

At pp. 16-17 Mcintyre J. stated:

The only basis for an action to recover damages in the circumstances of this case would be the tort of nuisance. Nuisance has been variously described. In this case both parties have suggested definitions and there seems to be little if any dispute between them on the general description of the concept of nuisance. Reference has already been made to the comprehensive definition in Fleming, The Law of Torts. I would add the definition expressed in Street, The Law of Torts, 6th ed. (1976), at p. 219:

A person then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.

(Emphasis added.)

[20] The test is an objective one: Fleming, The Law of Torts, supra at p. 421, that is, whether there is an actionable nuisance will depend in each case upon whether the interference would be substantial, not just with reference to the plaintiff, but with reference to any reasonable person occupying the plaintiff's premises: see Clerk & Lindsell on Torts, 17th ed., (London: Sweet & Maxwell, 1995) p. 895, 18-10, Walker v. Pioneer Construction Co. (1967) Ltd. (1975), 8 O.R. (2d) 35 (H.C.J.) at pp. 48-9. In Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181, LaForest J. observed, at p. 1191, that the modern law of nuisance is based in large part on the standards enunciated by Knight-Bruce V.C. in Walter v. Selfe (1851), 4 De G. & Sm. 315, 64 E.R. 849, and by Bramwell B. in Bamford v. Turnley (1862), 3 B. & S. 66, 122 E.R. 27. Of those cases, he said:
There it was observed that the very existence of organized society depended on a generous application of the principle of "give and take, live and let live". It was therefore appropriate to treat as actionable nuisances only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes. In effect, the law would only intervene to shield persons from interferences to their enjoyment of property that were unreasonable in the light of all the circumstances.
[21] The plaintiffs do not allege physical injury to their land. Accordingly, to establish liability here, they must prove the following material facts:
1. That the defendants' use of the third runway has caused sound to be heard by them on their property that has substantially interfered with their use and enjoyment of the property; and

2. That the interference with their use and enjoyment of the property is unreasonable in light of all the surrounding circumstances.

[22] Unlike in negligence, where proof of some damage, however minimal, is sufficient to complete the cause of action, the measure of the legal culpability of the defendant's conduct in nuisance is a function of the degree of harm it causes. The implications of this observation loom large for the plaintiffs here because of the nature and characteristics of the agency of the alleged nuisance -- sound.

[23] Sound is absorbed and dissipates as it travels. High frequency sound is absorbed over a shorter distance than low frequency sound. The rate and degree of absorption are affected by the topography and type of terrain over which the sound travels and by climatic conditions, such as temperature, wind, humidity, meterological inversions, and cloud-cover. Further, sound may be blocked or deflected by natural objects, like hills, or by artificial structures, like buildings.

[24] The plaintiffs have characterized the sound of which they complain as "noise". "Noise" is loud or unpleasant or undesired sound: The Concise Oxford Dictionary 8th ed., (Oxford 1990) p. 804. It is inherently subjective: what is noise to one person may not be noise to another. In the present context, the sound of overflying aircraft may not be "noise" to a nearby resident who is employed in a business that is dependent on the airport.

[25] Liability for each plaintiff in the class will therefore depend on many factors, including, for example:

1. The vertical and horizontal distance of the particular plaintiff from the sound of the aircraft, whether in flight or on the third runway; the volume, frequency, and duration of the sound; the topography, type of terrain, and nature, size, and location of objects and structures between the aircraft and that plaintiff;

2. The nature and type of construction of the residential dwelling of the particular plaintiff: whether it is a detached house or a condominium in the centre of a complex, where the sound would be shielded by surrounding structures; whether it is built of wood or brick, or other materials with differing sound-absorption qualities; whether it is insulated, the number of windows it has, etc.;

3. The nature of the immediate neighbourhood of the particular plaintiff: the defined area includes areas zoned for school and public use, light industrial, automobile-oriented commercial, townhouses, agricultural, golf courses, downtown commercial, limited industrial retail, apartments, high-density residential, health care facilities, business district, marina, industrial storage, recreational vehicle parks, two-family and single-family housing, industrial;

4. Sound from other sources: Richmond and Marpole, the areas emphasized by the plaintiffs, include several major automobile traffic arteries, railroads, a major hospital, firehalls, the Fraser River, which is used for marine traffic and floatplanes and has mills and manufacturing plants along its banks, and the airport as it existed before the third runway was constructed;

5. The time of the sound in relation to climatic conditions and to the living patterns of the particular plaintiff: some members of the class will reside in their homes within the affected area, others will not; some will be away from their homes during the day, when noise from the third runway is more prominent, and at home at night, when it is not; some will spend time in their yards and some will not; some will take vacations in winter, some in summer; some will sleep during periods of heightened aircraft sound, others will sleep when the sound is less;

6. The response of the particular plaintiff to sound: some members of the class will be extremely sensitive to sound, others less sensitive; some will be prone to sleep disruption and hypertension, others not; some will have impaired hearing, others not; some will become accustomed to the sound, others not.

[26] Thus, issues 1(a), 1(b), and 2(a), which raise the question whether a nuisance exists or existed, are quintessentially individualistic and are not suitable for trial as common issues. The following comments in City of San Jose v. The Superior Court of Santa Clara County, 525 P.2d 701 (Sup. Ct. of Calif., In Bank 1974) at p. 710, where the court refused to certify a class action in nuisance for airport noise, are apt here:
[T]he present action for nuisance . . . is predicated on facts peculiar to each prospective plaintiff. An approaching or departing aircraft may or may not give rise to actionable nuisance . . . depending on a myriad of individualized evidentiary factors. While landing or departure may be a fact common to all, liability can be established only after extensive examination of the circumstances surrounding each party. Development, use, topography, zoning, physical condition, and relative location are among the many important criteria to be considered. No one factor, not even noise level, will be determinative as to all parcels.
[27] Issues 3(a) to 3(d) inclusive represent the plaintiffs' attempt to isolate some common threshold issue of fact capable of advancing the claims of members of the class. The proposition that the objective proof of sound levels throughout the geographic area occupied by the class will substantially assist all class members is superficially attractive. However, on closer analysis it can be seen that any possible measurement of sound is significantly subjective and so general as to be of little benefit to individual class members.

[28] The basic unit of measurement of sound is the decibel (dB), which is essentially a measurement of pressure. The most commonly used measure of sound is the A-weighted decibel (dBA), which de-emphasizes low- and high-frequency sounds to more closely approximate subjective judgments of loudness.

[29] The defendants monitor sound emanating from operations at the Vancouver International Airport. They presently have twelve "noise monitoring terminals" in operation, two on Sea Island, where the airport is located, five on Lulu Island, immediately west and south of the airport, three in southwest Vancouver adjacent to and north of the airport, and one to the northwest of the airport near the western tip of Point Grey. These stations measure sound levels in dBA. However, they are unable to distinguish aircraft sound from other sounds present.

[30] It is necessary for the defendants to abstract useful information from the raw data provided by these terminals. Thus, they derive measurements known as "noise metrics", such as SEL ("Sound Exposure Level" or "Single Event Level"), which is a function of the duration and intensity of sound over a short period of time, as occurs in an aircraft overflight; Leq ("Equivalent Sound Level"), which is that level of continuous, steady sound that would, over a given period of time, contain the same acoustic energy as a series of SEL's, including the background noise; Ldn ("Day-Night Noise Level"), which is the average of Leq's for each hour over a twenty-four-hour period, weighted to penalize night-time noise because of an assumption that it is perceived as more annoying; and NEF ("Noise Exposure Forecast"), which is the sum of all sound in a twenty-four-hour period weighted to estimate the annoyance level of sound as opposed to its loudness.

[31] The defendants use these noise metrics to attempt to predict the general effects of airport sounds in areas subjected to the sounds. For example, Mr. Haboly, an Environmental Specialist employed by the defendant Authority, described the use of NEF as follows:

NEF contours are calculated (or modeled) by time- averaging the annual aircraft operations (actual or forecast), considering fleet mix, aircraft range, runway utilization, flight path, and time of day (nighttime operations from 10:00 pm to 7:00 am are weighted by 16.7). The NEF cannot be directly measured.

The NEF is presented as contours of equal noise energy, as plots on maps at and in the vicinity of the airport. NEF contours are best used for comparative purposes, rather than for absolute analysis. That is, NEF calculations provide comparisons between different conditions, so long as consistent assumptions and the same basic data are used for all calculations. A contour drawn on a map through this computer modelling cannot determine that a noise problem exists for any particular individual or population on one side of a line and that no problem exists for any particular individual or population on the other side of a line.

[32] Accordingly, it is not possible, using such measurements, to identify the volume, frequency, and duration of sound from the third runway operations at any particular time or place in the area in question. The best that can be done is to arrive at predictions based on averages and subjective judgments. Moreover, such predictions hold only in general. They cannot be narrowed with the particularity necessary to have application to discrete properties occupied by individual plaintiffs. Even if they could be narrowed to "affected neighbourhoods", as suggested in the plaintiffs' proposed common issues 3(a) to 3(d), that would still not be sufficiently confined to permit valid inferences on the balance of probabilities with respect to the individual experiences of each class member in the affected neighbourhood. There are simply too many variables in each case.

[33] In the result, no meaningful measurement of sound emanating from the operation of the third runway can be ascertained for the class. To permit inferences to be drawn for all class members on such general findings as are suggested would be unfair to persons in the geographic area who, individually, experience greater adverse effects than the findings would predict, and would be unfair to the defendants in that it would preclude them from defending each individual claim to its fullest.

[34] Accordingly, in respect of the plaintiffs' burden of proof of liability, there is no material fact or important threshold factual issue that is common to all members of the proposed class or to members of identifiable sub-classes.

[35] The Group II issue, whether foreseeability of damage is a necessary requisite of a cause of action in nuisance, is a pure question of law that could be determined fairly and efficiently in a test case. It is not an appropriate issue for certification.

[36] The Group III issues -- the defences of statutory authority and public nuisance -- and the Group IV issue -- the defence of novus actus interveniens -- are, in a sense, liability issues. However, they are subordinate liability issues; that is, it is not necessary to consider them if the plaintiffs do not first prove facts that would otherwise amount to nuisance. Whether or not that necessarily disqualifies them as common issues, I have concluded that they should not be certified here.

[37] The defence of public nuisance suffers from the same defects for present purposes as the liability issues already discussed. The nature of a public nuisance is summarized in Allen M. Linden, Canadian Tort Law, 5th ed. (Vancouver: Butterworths, 1993) at p. 505 as follows (citations omitted):

A public nuisance must materially affect the reasonable comfort and convenience of life of a class of Her Majesty's subjects. It is not necessary to establish that every member of the public has been affected, so long as a substantial number is. Whether the number of persons affected is sufficient to be described as a class is a question of fact.
The learned author goes on, at p. 507, to describe the procedural consequences of a public nuisance:
In the case of civil proceedings, the Attorney- General also has the responsibility for commencing an action to enjoin the continuance of a public nuisance. As long as the suffering or inconvenience is general and uniformly injurious, there is no place for an independent action by private citizens, either as individuals or in a group. The role of ordinary individuals is merely to urge the government to act, and it is in this sense that public nuisance is "within the ambit of administrative discretion".

Private citizens are entitled to sue for public nuisance by way of civil action in tort, only if it causes "special damage" to them, over and above the general suffering or inconvenience to the public. In other words, individual tort claimants must demonstrate that the injury or damage suffered has placed them in a different position than other members of the public.

[38] Thus, to succeed on this defence, the defendants must prove that the nuisance, if any, affects a substantial number of persons, and to defeat the defence, each plaintiff must establish "special damage". These inquiries are inherently individualistic and do not raise any precursory common issues.

[39] The defence of statutory authority requires the defendants to prove that they were under a statutory duty to construct the third runway and that the nuisance, if any, was an inevitable result of the discharge of that duty: Tock v. St. John's Metropolitan Area Board, supra, at p. 1214. The first proposition, that the statute imposed a mandatory duty to construct the runway, is a question of law that could be fairly and efficiently determined in a test case. The second, that nuisance resulted inevitably, involves the same individual factual inquiry. In the result, the issues raised in this defence are not appropriate for certification.

[40] The defence of novus actus interveniens requires proof of some intervening act, subsequent in time to the defendants' act or omission, that was the sole legal cause of the harm caused: see Athey v. Leonati, [1996] 3 S.C.R. 458 at pp. 466-68, The Dictionary of Canadian Law, 2nd ed. (Carswell: Toronto, 1995), pp. 813-14. Thus, the harm in each individual case is implicated and this issue is disqualified from certification.

[41] The remaining proposed issues relate to the quantification of damages and mitigation. These are subordinate to and dependent upon the liability issues and are not properly the subject of a class proceeding in their own right. Moreover, they are intrinsically individualistic and would inevitably reduce to discrete adjudications for each plaintiff. Little or no benefit would accrue to class members from a common trial of any of these issues and, in the circumstances, a class proceeding would not be a fair and efficient method for resolving them.

[42] The application is therefore dismissed.


"K.J. Smith, J."
APPENDIX

PLAINTIFFS' PROPOSED COMMON ISSUES

1. (a) Does the operation of the Third Runway (08L/26/R) at Vancouver International Airport cause a nuisance affecting properties owned by members of the Class (the Plaintiffs and other members of the class are hereinafter described together as the "Plaintiffs")?

(b) Is the nuisance continuing and, if so, is it probable that it will worsen over time, ie. as air traffic increases?

(c) Have the Plaintiffs suffered damage as a result of the nuisance?

(d) Is the damage measurable and, inter alia, reflected in a loss of market value of the properties owned by the Plaintiffs, and can an aggregate award of damages be made?

(e) Does the operation of the Third Runway (08L-26R) render uninhabitable any properties owned by the Plaintiffs, such that the operation of the Third Runway by the Defendants constitutes an expropriation of those properties?

(f) Does such expropriation give rise to a right of compensation to the Plaintiffs, and if so, does the liability for compensation lie with either one of the Defendants?

(g) If nuisance is established in answer to issues 1 to 3 [sic], is the Vancouver International Airport Authority (the "Authority") or the Attorney General of Canada (the "Crown) or are both liable to the Plaintiffs for damages for the nuisance?

(h) Is it necessary to the establishment of liability for nuisance to establish that the damage is a reasonably foreseeable consequence of the operation of the Third Runway, and if so, is the damage a reasonably foreseeable consequence of the operation of the Third Runway?

(i) Does the defence of "statutory authority" apply as a defence to the nuisance, in particular:

(i) does the Crown have the statutory duty to create or operate the Third Runway in the location and manner in which it is being operated;

(ii) is the nuisance the inevitable consequence of the Crown discharging the statutory duty identified in the answer to (i);

(iii) is this a defence applicable to both the Crown and the Authority, or only to the Crown?

(j) Does the defence of "public nuisance" apply so as to limit the Plaintiffs' right to sue for private nuisance, as pleaded in the Crown Statement of Defence para. 27 and the Authority Statement of Defence para 10? ie.

(i) does the alleged nuisance interfere with the Plaintiffs' private rights to use and enjoy their property, and if so,

(ii) is this actionable without the consent of the Attorney General of British Columbia?

(k) Does the defence of novus actus interveniens apply as a defence to liability of the Crown, as pleaded in the Crown Statement of Defence in para. 26?

(l) Prior to the commencement of operations of the Third Runway on November 4, 1996, was there any duty owed by a prospective purchaser of property to the Defendants to investigate, the failure of which could constitute a defence to nuisance created by the Defendants after the purchase takes place?

(m) In regards to issue (l):

(i) what would constitute reasonable investigations by prospective purchasers into the impacts of the operation of the Third Runway;

(ii) what information would prospective purchasers have received as a result of these investigations; and,

(iii) what are the legal implications of these facts?

(n) Was there any notice placed on the titles to property of the Plaintiffs which gave rise to a duty on the part of the Plaintiffs owed to the Defendants to "pay sufficient regard" to the notice whereby failure to do so would constitute contributory negligence by the Plaintiffs and would be a defence to nuisance?

(o) Are there any reasonable steps which the Plaintiffs could take which would have the effect of minimizing the effects of the nuisance, and is there an obligation on the Plaintiffs to take such steps, and would failure to do so constitute contributory negligence or failure to mitigate?

or alternatively:

2. (a) Does the operation of the Third Runway (08l/26R) at Vancouver International Airport cause a nuisance affecting properties owned by members of the Class (the Plaintiffs and other members of the class are hereinafter described together as the "Plaintiffs")?

(b) Is the damage measurable by, inter alia, a loss of market value of the properties owned by the Plaintiffs, and can an aggregate award of damages be made?

(c) If nuisance is established in answer to common issue 1 [sic], is the Vancouver International Airport Authority (the "Authority") or the Attorney General of Canada (the "Crown"), or are both liable to the Plaintiffs for damages for nuisance?

(d) Is it necessary to the establishment of liability for nuisance to establish that the damage is a reasonably foreseeable consequence of the operation of the Third Runway, and if so, is the damage a reasonably foreseeable consequence of the operation of the Third Runway?

(e) Does the defence of "statutory authority" apply as a defence to the nuisance as pleaded in the Crown's Statement of Defence, para. 19 and the Authority's Statement of Defence, para. 9, and is this a defence applicable to both the Crown and the Authority, or only to the Crown?

(f) Does the defence of "public nuisance" apply so as to limit the Plaintiffs' right to sue for private nuisance, as pleaded in the Crown's Statement of Defence, para. 27 and the Authority's Statement of Defence para. 10?

(g) Does the defence of novus actus interveniens apply as a defence to liability of the Crown, as pleaded in the Crown's Statement of Defence para. 26?

(h) Prior to the commencement of operations of the Third Runway on November 4, 1996, was there any obligation on a prospective purchaser of property to investigate, the failure of which could cause contribution to fault, as pleaded in the Crown's Statement of Defence para. 25 and the Authority's Statement of Defence para. 15?

(i) In regards to issue h:

(i) what would constitute reasonable investigation by prospective purchasers into the impacts of the operation of the Third Runway;

(ii) what information would prospective purchasers have received as a result of those investigations; and

(iii) what are the legal implications of these facts?

(j) Was there any notice placed on the titles to property of the Plaintiffs which gave rise to a duty on the part of the Plaintiffs owed to the Defendants to "pay sufficient regard" to the notice whereby failure to do so would constitute contributory negligence by the Plaintiffs and would be a defence to nuisance as pleaded in the Crown's Statement of Defence, para. 25, and the Authority's Statement of Defence, para. 15?

(k) Are there any reasonable steps which the Plaintiff could take which would have the effect of minimizing the effects of the nuisance, and is there an obligation on the Plaintiffs to take such steps, and would failure to do so constitute contributory negligence or failure to mitigate as pleaded in the Crown's Statement of Defence, para. 25 and the Authority's Statement of Defence, para. 15?

or alternatively:

3. (a) Since the Third Runway (08L/26R) at Vancouver International Airport commenced operations on November 4, 1996:

(i) has there been an increase in noise in residential neighbourhoods caused by the operations of the Third Runway?

(ii) if so, are there identifiable residential neighbourhoods which have experienced this increase in noise (the "Affected Neighbourhoods")?

(iii) can these increases in noise be measured and the increases identified in a map of the Affected Neighbours, and if so, what method of measurement will best correlate the effect of these noise increases on people living in the Affected Neighbourhoods?

(iv) are the noise increases likely to continue or are they likely to change, and if so, can the changes be reasonably projected and identified on a map using the method of measurement determined in answer to (c), above?

(b) Is the identified increased level of noise caused by the operations of the Third Runway reasonable in the context of the character of each Affected Neighbourhood?

(c) For each Affected Neighbourhood, is there an identifiable level of noise increase which the Court can determine is a higher level than the reasonable person can be expected to bear, if exposed to that noise in the Affected Neighbourhood in the use of their residential property? In this regard, the Court will look at what constitutes reasonable human reactions to the new noise levels in the Affected Neighbourhoods, in the context of each neighbourhood.

(d) Has the increase in noise in the Affected Neighbourhoods caused a general decrease in the value of residential properties in that neighbourhood, and if so, can this effect be measured?

(e) Prior to the commencement of operations of the Third Runway on November 4, 1996, were there any facts on which fault might be attributable to a plaintiff, which fault would affect the amount of damages recoverable by a plaintiff?

(f) Subsequent to the commencement of operations of the Third Runway, is there any action a plaintiff could or should have taken, failure of which could be considered failure to mitigate the nuisance or contributory fault on the part of a plaintiff?

(g) If nuisance is established, is the Vancouver International Airport Authority (the "Authority"), or the Attorney General of Canada (the "Crown"), or both, liable to the Plaintiffs for damages for the nuisance, and is there an apportionment of liability?

(h) Does the defence of "statutory authority" apply as a defence to the nuisance as pleaded in the Crown Statement of Defence para. 19 and the Authority Statement of Defence para. 9, and is this a defence applicable to both the Crown and the Authority, or only to the Crown?

(i) Does the defence of "public nuisance" apply so as to limit the Plaintiffs' right to sue for private nuisance, as pleaded in the Crown Statement of Defence para. 27 and the Authority Statement of Defence para. 10?

(j) Does the defence of novus actus interveniens apply as a defence to liability of the Crown, as pleaded in the Crown statement of Defence para. 26?

(k) After a determination of which plaintiffs have suffered nuisance and which properties have suffered a decrease in market value as a result of the nuisance, and a determination of liability, can an aggregate award of damages be made based on a common formula which measures the aggregate loss of market value of these properties?