The Nova Scotia Supreme Court has certified a
massive class action by Sydney residents against the
governments of Canada and Nova Scotia, relating to
contamination from the notorious Sydney tar ponds, and the
associated steel mill and coke ovens from the old Sydney Steel. The
plaintiffs alleged that the two governments, by owning and
operating these facilities between 1967 and 2000, caused or
permitted the emission of contaminants on nearby people and
property. The plaintiffs seek remedies including remediation of the
contaminated properties, and "remedy for nuisance and
battery", such as identification of health risks, and
monitoring medical issues, but not including damages for personal
injury or property damage. The total amount claimed is many
millions of dollars.
On July 6, Justice Murphy certified two large classes of
plaintiffs: a Property Owners' Class and a Residential Class.
The Property Owners' Class consists primarily of current owners
of properties in three neighbourhoods within 2 km of the former
steel facility, whose properties have lead contamination exceeding
CCME standards. Justice Murphy accepted expert evidence that lead
levels in soil in these neighbourhoods were accurate proxies for a
larger suite of contaminants from Sydney Steel, which included
arsenic and poly aromatic hydrocarbons (PAH). The Residential Class
consists of individuals who lived in the affected neighbourhoods
for at least seven years. The seven year minimum was based on
expert evidence from Dr. Ron Brecher, that seven years is the
minimum period for assessing chronic exposure to contaminants.
Certification of the battery claim is a significant innovation,
and an interesting way of coping with Canadian courts' refusal
to certify class actions for personal injury from pollutants. That
is, rather than claim that the pollution made them sick, the Sydney
residents claim that they were illegally assaulted by the
pollution. Then, instead of claiming monetary damages for personal
injury, they ask to be provided with medical monitoring to promptly
identify any resulting illnesses. Presumably, any necessary medical
treatment will then be provided by Medicare.
Why is Canada a defendant in this action? It is worth
remembering that federal involvement in Sydney Steel was political
pork. Its former private-sector operators could not make money and
could not find buyers. But closing the plant would have cost
significant job loss in Sydney and in the nearby coal mines. It was
rescued and subsidized by federal money, i.e. largely taxes paid
outside Nova Scotia, at the vehement demand of Nova Scotia
politicians. The plant was both heavily polluting and unprofitable
and eventually closed. Since then, vast amounts of additional
federal money have gone into cleaning up the accumulated
contamination. Has our government learned from this to stop
subsidizing polluting industries?
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