Dow Chemical Company v. Ring, Sr., 2010 NLCA 20 (CanLII)

This case was heard in the Supreme Court of Newfoundland and Labrador (Court of Appeal).

The plaintiffs in this case applied for certification of a proposed class action proceeding against the federal Crown. The proposed class included people who were said to have been affected adversely by the Department of National Defence’s use of chemical herbicides at the Canadian Forces Military Base in Gagetown, New Brunswick.

Under Newfoundland and Labrador’s Class Actions Act, in order to secure class action certification, applicants must prove a number of things, including that the pleadings disclose a cause of action, that the claims of the class members raise a common issue, and that a class proceeding would be the preferable way to resolve the dispute fairly and efficiently.

After considering the plaintiffs’ application, the Court held that the pleadings disclosed a cause of action, that they demonstrated a properly identifiable class, that they raised a common issue, and that there were proper representative plaintiffs who could manage the case.

Because a similar application on the same issue had been made by other plaintiffs in the New Brunswick Court of Queen’s Bench, the Court held that the issue of whether a class proceeding would be the preferable way to resolve the dispute would depend upon the decision made by the New Brunswick Court. The Court therefore issued an order for certification, but it stayed the order pending further submissions on the situation in New Brunswick.

Two months later, the plaintiffs applied to have the stay lifted so that the class action proceeding could move forward. The Attorney General of Canada and the Minister of National Defence argued that the stay should remain in place, as the applicants “would be adequately protected by pending proceedings in New Brunswick.” After consideration, the Court held that the proceedings in New Brunswick should not prevent the proceedings in Newfoundland and Labrador from moving forward, and it lifted the stay.

The defendants then appealed to the Newfoundland and Labrador Court of Appeal, which considered whether the Trial Division had erred in allowing the application for certification. After consideration, the Court held that the Trial Division had erred in finding that there was a properly identifiable class with common issues, and that it had therefore erred in certifying the class action. The Court therefore allowed the appeal and set aside the certification.

To read other decisions related to this case, go to Ring v. The Queen, 2007 NLTD 146 (CanLII) and Ring v. The Queen #2, 2007 NLTD 213 (CanLII). 

View the Decision on CanLII: https://www.canlii.org/en/nl/nlca/doc/2010/2010nlca20/2010nlca20.html

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