Community Mailboxes Are Not a Nuisance
In the recent decision in Benizri v. Canada Post Corporation (2017 QCCS 908), Justice Silvana Conte refused to certify the following proposed class action against Canada Post :
All persons in Quebec who are directly inconvenienced by the installation of a Canada Post community mailbox on or adjacent to their property or within a radius of 10 meters of their property, following the implementation of Respondent’s plan to replace door-to-door delivery of mail parcels with community mailboxes, which began on or around 2014.
This case sprang from Canada Post’s decision to move to community mailboxes for everyone where practicable.[1] Mr. Benizri—who was represented by his uncle as class counsel, a first perhaps—claimed that the move to these mailboxes created an actionable nuisance under art. 976 CCQ. One of these mailboxes was installed next to Mr. Benizri’s property in 2015. It contained 48 slots serving 34 addresses.
Mr. Benizri was complaining of excessive noise, safety issues and loss of privacy as a result of the increased circulation around his house :
12. The excessive noise is allegedly due to the increase in the circulation around Mr. Benizri’s property. According to Mr. Benizri, his neighbours mostly retrieve their mail by car, often at unreasonable hours, leaving their car engine running with the radio blaring loud music within earshot of his property.
13. Moreover, not only does he consider the metal community mailbox visually displeasing but he complains that his neighbours often discard unwanted mail, parcels, flyers or local advertisements thereby littering on and around his property.
14. Mr. Benizri also cites safety concerns due to the increased traffic. He claims that the community mailbox creates a risk of theft or other criminal activity regarding the contents of the mailbox and vandalism, and he asserts his concerns for his family’s security.
15. Finally, Mr. Benizri cites a loss of privacy. He claims that persons allegedly peer through his fence into his backyard during family gatherings.
After canvassing the applicable law under the class action rules and art. 976 CCQ, the Court concluded that Mr. Benizri had not disclosed an arguable cause of action under art. 572(2) CCP, in part because Mr. Benizri had offered no evidence to support his claim that the noise was excessive:
30. Mr. Benizri’s opinion that the noise from cars is excessive is not deemed to be true. The Court must assess whether it is arguable, from the facts alleged that the music and or radio from the cars is an annoyance that goes beyond that which should be tolerated by a neighbour in close proximity to a community mailbox.
31. While expert evidence is not required at the authorization stage, there needs to be some evidence to support these general assertions that the noise from the cars exceeds the normal annoyance expected by a neighbour. In this case, Mr. Benizri’s assertions are not supported by even the most basic objective evidence, such as: videos or recordings of the cars blaring music; newspaper articles about the abnormal level of noise from traffic or letters of complaints from Plaintiff or his neighbours regarding same.
32. Therefore, the Court concludes that Mr. Benizri has not demonstrated that he has an arguable case that the noise from cars exceeds the normal level of tolerance expected of a neighbour in close proximity to a community mailbox.
33. In any event, even if there were some evidence to support the bare assertion that the noise from cars is excessive and beyond that which should be tolerated by a neighbour, Mr. Benizri has not demonstrated that these annoyances are the direct and immediate result of the installation, use or maintenance of the community mailbox by Canada Post. Rather, it is evident from his complaints, that these annoyances are the direct and immediate consequence of the actions or conduct of Mr. Benizri’s neighbours when retrieving their mail. (Emphasis added)
The Court made similar findings about his other allegations.
Perhaps more surprisingly, the Court also found that the criteria of art. 575(1) CCP had not been met either. As noted by the Court:
47. As stated in the Dutton case[2], when examining the commonality requirement, “the underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analyses. Thus, an issue is common where its resolution is necessary to the resolution of each class member’s claim”.
48. Therefore, there need only be one common question of fact or law as long as that question significantly advances the outcome of the class action for all of its members[3].
49. In the present case, even had Plaintiff demonstrated an arguable case for excessive annoyances caused by Canada Post, there is no common question of fact or law that would significantly resolve each of the class member’s claims.
50. The following are the proposed common questions in Plaintiff’s application:
· Should Respondent be considered as a neighbour to the Class members who had a community mailbox installed adjacent to or on their property or within a radius of 10 meters of their property?
· If so, are the Annoyances suffered by the Class members beyond the limits of tolerance that neighbours owe to one another?
· Is the devaluation in property value attributable to the installation of community mailboxes?
· If the answers to any or all of the foregoing questions are “yes” is the Respondent liable for the loss of enjoyment, loss of privacy and loss of value of the Class members’ properties?
· What is the amount of damages sustained by the Class, collectively, as a result of Respondent’s installation of community mailboxes?
51. The first question is the only question that is common to all members of the class. However, the affirmative answer to this question would play an insignificant role in advancing the claims of the proposed class members. The status of neighbour does not automatically give rise to Canada Post’s liability under article 976 CCQ.
52. The second question is hypothetical. Mr. Benizri admitted during his examination on discovery that he has not looked into whether the value of his property has decreased as a result of his annoyances despite the assertions to the contrary in the application.
53. As for the third question, more than 7,846 community mailboxes have been installed by Canada Post since 2014. As such, the Court would have to determine the nature of the annoyances in each neighbourhood where a community mailbox has been installed, whether they are excessive and are caused by the installation, maintenance or use of the community mailbox by Canada Post. The proposed class action would be overwhelmed by thousands of mini trials defeating the purpose of a class action which is to avoid duplication of fact-finding or legal analysis[4].
54. As a result of the foregoing, the definition of the proposed class is necessarily circular in that it is dependent upon the outcome of the litigation[5].
Finally, the Court also found that Mr. Benizri was not an adequate representative under art. 575(4) CCP:
58. The Court is mindful of the very low threshold set for the class representative, however, on the facts of this case, it concludes that Mr. Benizri is not an adequate representative. The Court has already concluded that he has not demonstrated a legal interest to sue Canada Post. Moreover, the transcript from his examination out of court illustrates that he lacks an understanding of his role as class representative and his relationship to his class counsel, his nephew, places him in an apparent conflict of interest with other members of the proposed class.
59. On the issue of competency, Mr. Benizri admits that he is unaware of his role as class representative: […]
60. Also, he did not actively look for or speak with any other potential class member in order to ascertain if there are other persons with similar grievances but rather was approached by neighbours to discuss a news item publicizing his decision to file the application: […]
61. Moreover, what is truly disconcerting is the fact that Mr. Benizri did not participate in the drafting of or even read the application before it was filed. […]
62. A competent class representative should, at a minimum, read the application before it is filed and ensure the accurateness of the assertions that are relied upon by the Court as true in order to assess whether Plaintiff has an arguable case. This fact combined with his lack of understanding of the role as class representative and the failure to speak with any potential members who may have similar complaints renders Mr. Benizri inadequate to represent the class.
63. In addition, the Court finds that Plaintiff is in an apparent conflict of interest. In his examination, Mr. Benizri is candid about the fact that the filing of the application was proposed to him by his nephew, class counsel. […]
64. In its role of weeding out frivolous claims, the Court cannot ignore the fact that this proposed class action was filed on the recommendation of Mr. Benizri’s nephew and counsel, without Mr. Benizri first verifying the veracity of the assertions contained in the application or even the existence of any other potential class member.
65. Mr. Benizri’s objectivity and independence is therefore called into question by the delegation of his role as class representative to his nephew and counsel of record in the drafting of the application. This conduct gives the appearance of loyalty to his nephew and counsel that may conflict with the best interests of the class he is supposed to represent[6]. The Court is not satisfied that Mr. Benizri has the competence or independence to “vigorously and capably prosecute the interests of the class”[7].
Interestingly, the judgment does not cite Court of Appeal’s decision in Sibiga[8] on this question, where the Court held :
[101] The lead role taken by counsel and the circumstances in which the appellant was recruited to represent the class are not incompatible with her status as representative.
[102] While it is not inappropriate to be mindful of possible excesses of what some have described as “entrepreneurial lawyering” in class actions, it is best to recognize that lawyer-initiated proceedings are not just inevitable, given the costs involved, but can also represent a social good in the consumer class action setting. As Perrell J. wrote in one Ontario case, “the entrepreneurial nature of a class proceeding can be a good thing because it may be the vehicle for access to justice, judicial economy, and behaviour modification, which are all the driving policy goals of the Class Proceedings Act, 1992”. Scholars have observed that, within the proper limits of ethical rules that bind all lawyers, courts should recognize that lawyer-initiated consumer class actions can be helpful to meet the access to justice policy goals of the modern law of civil procedure. In my view, the fact that lawyers play an important, even primary role in instituting a consumer class action is not in itself a bar to finding that the designated representative has the requisite interest in the suit. Where the personal stake of a consumer representative is small – here, the appellant was charged $250.81 for roaming, of which only a portion is alleged to be overpayment – it is often unrealistic to insist upon a consumer-initiated class action.
[103] A lawyer-initiated consumer class action is not inherently incompatible with an acceptable solicitor-client relationship, nor does it mean that the client has “no control” over counsel. Article 1049 C.C.P. requires that a lawyer act for the representative. In our case, the appellant retains the authority to walk away from the class action, with permission of the court, and the lawyers cannot unilaterally “dismiss” the client as representative of the class. The judge was wrong to suggest that the fact that the lawyers chose their client here means that the appellant is an inadequate representative. As my colleague Dufresne, J.A. wrote in Fortier:
[147] Cela dit, les juges peuvent déceler, à l’occasion, des indices qui laissent croire que les démarches ayant donné naissance à la requête portent fortement l’empreinte des avocats, mais cela ne discrédite pas nécessairement celui ou celle qui fait valoir une cause d’action qui apparaît suffisamment sérieuse alors que, sans lui, le groupe serait privé de l’exercice d’un droit.
[104] Nothing in the record suggests that the appellant is not a genuine claimant and nothing suggests unethical conduct on the part of her counsel, either in the “investigative” stage of the case or after proceedings were instituted. I see nothing that would disqualify her by reason of the implication of her lawyers. In my view, denying her that status for that reason appears to contradict the policy basis upon which class actions are founded. If lawyers’ role is to be reconfigured in this setting, it strikes me that article 1003(d), as drafted, is not a sound basis for achieving that end.
It remains to be seen if this decision will be taken in appeal.
[1] As the Court points out, community mailboxes have been in place in Canada for over 25 years and serve approximately two thirds of all postal addresses served by Canada Post. Since 2015, 7846 mailboxes have been installed across Canada. However, the Trudeau government has suspended implementation of the plan.
[2] Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534 at para 39.
[3] Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3 at para 58.
[4] Vivendi, supra, at para 44.
[5] Western Canadian Shopping Centres Inc., supra.
[6] Del Guidice v. Honda Canada Inc., 2007 QCCA 922.
[7] Western Canadian Shopping Centres, supra, at para 41.
[8] 2016 QCCA 1299 (CanLII).