Will the Supreme Court of Canada grant leave to Ellen Smith to
appeal the decision of the Ontario Court of Appeal
rejecting her class action against Inco for the historic nickel
contamination of soil in Port Colborne?
My friends in the environmental bar would appreciate
clarification of the scope of "physical damage to land"
nuisance, and of Rylands v Fletcher, but can Smith
overcome her loss on damages as well as liability? By popular
request, here in one place are Smith's Leave To Appeal Application, Inco's response, and Smith's Reply.
Inco's response includes some fascinating excerpts from the
transcript. For example, even though Ms. Smith refused to allow
Inco to perform the MOE-ordered cleanup of her property, leaving it
contaminated well above the 8000 ppm Community Based Risk
Assessment standard, (and even farther above the province-wide
standard for nickel), she and her husband obtained a mortgage on
the contaminated property in 2009 from a major bank. (Nor did she
know of no one else in Port Colborne who had had trouble getting a
mortgage because of the nickel.) Her husband used the money to buy
another Port Colborne property, apparently without testing the soil
Also, although nickel refinery dust is classed as a possible
carcinogen in the workplace, Inco cites repeated studies showing no
unusual health problems in Port Colborne that could be caused by
nickel exposure, either when the refinery was operating or in the
following decades. Thus, Inco says, how can the presence of nickel
in the soil constitute "physical damage to property" if
it is invisible, doesn't impede daily activities, and
doesn't endanger health? And especially if, as found by the
Court of Appeal, there was no loss in property value either?
"In this case the Applicant staked her claim on the theory
that there was material physical damage to her land. Harrnless
depositions of nickel causing no physical or other damage and
causing no economic damages do not fall within the ambit of tort
law. Absent any hartn and any damages, all of the 50 questions
posed for the Court to consider are academic and
Smith rejects the Court of Appeal's finding on damages, and
claims that loss in value is itself "physical damage" to
land. She makes a heartfelt plea that Inco's calculations are
unfair and ignore the reality she experienced:
"Inco's Response fails to squarely confront the very
issue underpinning this case: who is responsible in law for damage
to property precipitated by reasonable regulatory intervention,
extensive health studies, risk, uncertainty and widespread media
coverage caused by discovered pollution?...
Missing from Inco's Response is a rationale for why tort law
ought not respond to the shadow imposed on contaminated residential
lands. Are homeowners to bear all the burden, risk and uncertainty
grafted upon their properties by industry's conduct which
causes a decade's worth of very public environmental scrutiny,
risk assessment, scientific testing, community health studies,
regulatory intervention and unprecedented media attention? The fact
that a legal operation visits random damage on unfortunate
individuals "does not tell us why those individuals should be
responsible for paying that damage."...When is chemical
contamination of soil legally deemed to be damage to land so as to
invoke the law of nuisance?"
Smith's Reply also includes the endorsement of Justice
Doherty of the Court of Appeal referring costs back to the trial
"However, I have concluded that the matter should be
remitted to the trial judge. In many ways, this is like a separate
piece of litigation in which a wide variety of factual and legal
issues may arise. There is a great deal of money at stake. The
parties may want to lead evidence on various issues. There is a
very real potential that legal issues of considerable public
importance may be raised in the course of the costs proceedings. I
think it is best to follow the usual litigation format. All
relevant ·matters can be fully vetted before the trial judge
in the trial forum with ready access to a full appeal to this court
if either party is so inclined. This court will have the benefit of
a full record and the reasons of the trial judge."
The costs decision will be watched closely by the entire
environmental bar, but especially by those who take the big risk of
accepting cases on contingency.
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The Alberta Court of Appeal's decision in Bokenfohr v Pembina Pipeline Corporation, 2016 ABCA 382 provides an important reflection on admissibility of evidence in the permission stage of an appeal in the oil and gas context.
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