Gariepy v. Shell Oil Co. - Classaction.ca

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"Commonality tests have been a source of confusion in the courts. The commonalityquestion should be approached purposively. The underlying question is whetherallowing the suit to proceed as a representative one will avoid duplication of factfindingor legal analysis. Thus an issue will be `common' only where its resolutionis necessary to the resolution of each class member's claim. It is not essential thatthe class members be identically situated vis-à-vis the opposing party. Nor is itnecessary that common issues predominate over non-common issues or that theresolution of the common issues would be determinative of each class member'sclaim. However, the class members' claims must share a substantial commoningredient to justify a class action. Determining whether the common issues justifya class action may require the court to examine the significance of the commonissues in relation to individual issues." 56 The following factors can be drawn from the Chief Justice's observation:* the resolution of the common issues must be necessary to each member'sclaim;* the common issues need not predominate over non-common issues nor doesthe resolution of the common issues need to be determinative of eachmember's claim;* the common issues must be a "substantial" common ingredient of eachmember's claim;* whether the common issues justify a class action involves an examination ofthe "significance" of the common issues in relation to the individual issues. 57 The defendants assert that the common issues are not, in fact, common at all. They contend thateach plumbing system would have to be examined separately in order to make a properdetermination of liability. They say that whether polybutylene is appropriate for use in potable waterplumbing systems depends on the particular environment in which it is to be installed. For example,it involves a consideration of the natural quality of the water, the level of chlorine in the water, thetemperature of the water and even the prevailing climate in which the system is installed. It shouldbe noted, in this regard, that the evidence establishes that the quality of water, as well as the levelsof chlorine found in water, varies considerably around Ontario. The defendants also say that thereare any number of reasons why a given plumbing system might leak including improper installationor the use of incompatible components in the system. Consequently, the defendants contend that theliability inquiry will quickly devolve into a need for a system by system examination. 58 I accept the defendants' point that there will be a number of individual issues that will need tobe addressed in order to arrive at the ultimate determination of whether any given class member isentitled to relief. However, that is not the test for the common issues requirement as is made clearby the Chief Justice's observation above. Rather, the test is whether the determination of thecommon issues will significantly advance the litigation. 59 The difficult issue, then, is to determine what constitutes "significantly" advancing thelitigation? Should it be determined through a comparison of the number of issues to be resolved in
the common issues trial versus the overall number of issues to be tried? Should it be determinedthrough a comparison of the amount of court time it would take to resolve the common issuescompared to the amount of court time that would be required to determine the individual issues? Oris there some other comparative analysis that should determine the issue? 60 As the Chief Justice said in the quotation above, the commonality question should beapproached purposively. Having considered the various possibilities, I have concluded that there isno formulaic approach that can be taken to the determination of this requirement. In the end result,the court must balance the pros and cons of the competing positions and reach the best answer thatit can given the facts and circumstances of each particular case. In doing so, both of the comparisonsI have mentioned may ultimately form part of the overall analysis of the issue but neither is likelyto be completely determinative of it. 61 The fundamental problem with the plaintiffs' position on the common issues is that thedetermination of whether the defendants' products are defective does not, in my view, materially orsignificantly advance the overall determination of the ultimate liability issue. It does not do sobecause of the fact that there are a myriad of reasons why any given class member's plumbingsystem might fail. This fact is made clear by the plaintiffs' own experts and is exemplified in thefollowing exchange from the cross-examination of Dr. Stivala. Under cross-examination, he said:"87. Q. Now, we spoke a moment ago about some of the factors which affect theprocess. I just want run through some of these and make sure I have got themstraight. I take it, first of all, that the existence of chlorine in the water is afactor which will affect the speed of the process?A. That is correct. Well, it is speed in terms of the fact that it is a strong oxidizingagent, yes, that is correct.88. Q. Right. But I think you have said elsewhere that even if it was no chlorine,the existence of oxygen-molecules in the water by themselves would causeoxidation?A. That is correct.89. Q. If there was no chlorine and you only had the oxygen in the watercausing it, would your 50-year mandatory failure period still hold? In otherwords, would you say the oxygen in the water by itself would inevitablycause these systems to fail within 50 years?
Page 1 and 2: Case Name:Gariepy v. Shell Oil Co.P
Page 3 and 4: to adequately test their products a
Page 5 and 6: completely suitable material from w
Page 7 and 8: does not establish liability on Cel
Page 9 and 10: include persons who do not have a c
Page 11 and 12: The defendants further contend that
Page 13 and 14: Canadian Shopping Centre Inc. v. Du
Page 15: Punitive Damages10. In light of the
Page 19 and 20: 95. Q. Right. So, typically, houses
Page 21 and 22: 107. Q. And the leak could be cause
Page 23 and 24: out of some judgments to date, and
Page 25 and 26: water pressures, answering the scie
Page 27 and 28: members of the proposed class. Howe

Gariepy v. Shell Oil Co. - Classaction.ca

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