Class Action - Keele Valley Landfill Site

The Works and Utilities Committee recommends the adoption of the following report (June 2, 1998) from the City Solicitor:

Purpose:

The purpose of this report is to inform the Committee and Council of the status of the class action lawsuit initiated by John Hollick, a resident of Maple, with respect to the operations of the Keele Valley Landfill Site and to obtain ratification of steps taken to obtain leave to appeal and to appeal from the decision to certify the action.

Recommendation:

It is recommended that Council ratify steps taken by any staff to obtain leave to appeal the decision to certify this action, and to authorize the appeal.

Council Reference/Background/History:

By Clause No. 7 of Report No. 12 of The Environment and Public Space Committee, adopted by the Council of The Municipality of Metropolitan Toronto at its meeting of September 24 and 25, 1997, the Metropolitan Solicitor was authorized to continue to represent the Metropolitan Corporation in this action, and to retain such experts as may be required for the certification process up to a maximum of $100,000.00.

Comments and/or Discussion and/or Justification:

Under the Class Proceedings Act, 1992, certification from the Court is needed in order to proceed with a class action. Mr. Justice J.H. Jenkins of the Ontario Court of Justice (General Division) heard the certification motion in Newmarket on February 25 and 26, 1998. Jenkins J. released his decision on March 30, 1998, certifying the action except for the claim for injunctive relief and claims for damages under the Family Law Act.

Leave to appeal must be filed with the Court within seven days of a decision to certify. Further, motions for leave to appeal are brought forward on an expedited basis. Accordingly, my staff, in consultation with the staff of Works and Emergency Services, took the steps necessary to protect the interests of the City of Toronto.

A motion seeking leave to appeal to the Divisional Court was filed, and the motion was heard by Mr. Justice Archie Campbell of the Divisional Court in Toronto on May 11, 1998.

Campbell J. granted leave to appeal the decision of Jenkins J. to the Divisional Court. In his reasons, Campbell J. stated that:

Having regard to the applicant's arguments about the lack of commonality within the proposed class, the lack of clearly identifiable common characteristics, the lack of any strong substratum of common fact, the lack of any clear link between the site and the proposed group, the alternative remedies available...and the lack of precision in defining common issues, the correctness of the decision is open to serious debate...

Campbell J. also issued a stay of proceedings so no further steps would be taken by the plaintiff until the appeal is determined. The plaintiff had intended to notify some 30,000 residents in the area around the landfill of the lawsuit.

The appeal is scheduled to be heard by a full panel of the Divisional Court on September 28, 1998.

Conclusions:

After the appeal is determined, further reports will be brought forward as required.

Contact Names:

George S. Monteith, 392-8062

Albert H. Cohen, 392-8041

Graham Rempe, 392-2887.