In Smith v. Inco Limited, a judge of the Ontario
Superior Court of Justice held Inco liable in private nuisance and
strict liability, awarding class members $36 million in damages for
loss of value to their properties as a result of emissions from a
nickel refinery operated by Inco (now Vale) in Port Colborne,
Ontario. In dismissing the action, the Court of Appeal held that
the plaintiffs had not demonstrated that Inco was liable to the
class members under the doctrines of strict liability and private
nuisance, and found that there were no damages suffered.
The class action had been brought on behalf of approximately
7,000 residential property owners of Port Colborne in respect of
Inco's operation of a nickel refinery between 1918 and
1984. Inco's operations had resulted in the
emission of nickel particles, primarily nickel oxide, onto the
properties of the class members. It was never alleged that Inco
operated the refinery in a negligent manner or that it did not
comply with all laws when it operated the refinery.
At trial, the plaintiffs did not adduce evidence of actual
health risks to humans as a result of the nickel oxide emissions or
the settlement of nickel oxide into the soil on their
properties. Rather, they argued that widespread public
concerns about potential adverse health effects had an adverse
effect on property values, which they alleged had not increased at
the same rate as comparable property values in other small cities
In overturning the trial decision, the Court of Appeal rejected
three findings made by the trial judge. Namely, that Inco had
caused a private nuisance by dispersing nickel oxide into the air,
which in turn had landed on the class members' properties; that
Inco was strictly liable for pollution of the residential
properties on the basis of strict liability; and that there was an
actual decline in the class members' property values.
The Court of Appeal rejected the trial judge's finding that
Inco's conduct amounted to a private nuisance. It held
that, for a material physical damage nuisance claim to be
successful, there must be actual, substantial physical injury or
harm to property. The mere existence of pollutants (in this case,
nickel particles) in the soil did not satisfy this
requirement. In particular, the Court held that the chemical
alteration of soil, without more, does not amount to physical harm
or damage to property. The Court stated that, for a physical damage
claim to be made out, there must be evidence of detrimental effect
on the land or on its use by the owners. In this case, that
would necessitate showing some risk to the health or wellbeing of
the residents of the properties. Concern about potential health
risks was held by the Court not to be evidence of actual harm or
damage to property. Since the claimants did not demonstrate
any physical harm, the claim in private nuisance failed.
The Court of Appeal also held that the strict liability test
enunciated in Rylands v. Fletcher was not applicable in
this case. It held that the refinery was not a non-natural
use of the property. Inco operated in a heavily industrialized part
of the city in a manner that was "ordinary and usual" and
carried out its operations in accordance with all applicable rules
and regulations. The Court held that there is no common
law rule imposing strict liability on those whose activities are
said to be "ultra hazardous," but that even if there
were, the refinery was not shown to be "ultra
hazardous." The Court held that the refinery did not
create risks beyond those that are incidental to virtually any
industrial operation, and that the imposition of liability based on
operations that are considered high risk should be left to the
legislature rather than the courts.
Finally, the Court of Appeal held that the trial judge had
incorrectly calculated damages. The Court approved the use of a
comparative model between two similar communities, but held that
the comparison must take into account other variables that could
lead to a lower price. For example, the existence of 314
undeveloped residential lots in Port Colborne brought down the
average residential property value. When these lots were included
in the calculations, no decline in the class members' property
values could be shown.
In the end, the appeal was allowed, the trial judgment was set
aside and costs of $100,000 were awarded against the claimants in
respect of the appeal.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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