A Statutory Solution to Ontario’s Environmental Class Action Problem: Section 99(2) of the Environmental Protection Act

Despite the immense promise of the Class Proceedings Act, 1992 as a tool to facilitate claims for environmental harms, the landscape for environmental class actions in Ontario is bleak. The seminal environmental decisions involving the Act (Hollick v Toronto and Smith v Inco) have saddled victims of environmental harms with difficult precedent to overcome at both the certification and merits stages of litigation. However, the decision in Midwest v Thordarson, in which the Court of Appeal affirmed the existence of the cause of action in section 99(2) of the Environmental Protection Act, provides plaintiffs with a new path to success in environmental class actions. The section 99(2) cause of action is versatile and powerful, and may be asserted for different types of environmental harms, by different types of plaintiffs, against different types of defendants. Section 99(2) claims can also overcome common obstacles that have prevented environmental class actions from receiving certification. Finally, section 99(2) offers a likelihood of greater success at a trial as compared to the typical common law causes of action for environmental harms. With section 99(2), plaintiffs can achieve the promise of class actions as a tool for seeking justice for widespread environmental harms.