After eight years of legal wrangling, the Sydney Tar Ponds class
action has finally been certified. However, the plaintiffs' chances
of ultimate success will be significantly reduced if the
Smith v. Inco decision stands.
Justice John Murphy certified the Sydney suit against the
provincial and federal governments, for a class headed by
representative plaintiffs — Neila MacQueen, Joe Petitpas,
Ann Ross and Iris Crawford. The plaintiffs allege battery, strict
liability and nuisance, trespass, negligence and breach of
fiduciary duty. The class of property owners and occupants are
seeking financial compensation for lost property value and a
medical monitoring fund for contamination associated with the
operation of the coke ovens and tar ponds between 1967-2000.
The class boundaries are defined by soil levels of lead in the
neighbourhoods of Whitney Pier, Ashby and north end Sydney, an area
reportedly including about 6,000 properties. South end Sydney,
where data regarding lead is not as extensive, was not be included.
Since personal injury claims from historic exposure have never been
certified, the plaintiffs are not seeking compensation for personal
Nova Scotia had conceded that adequate causes of action were
pleaded for breach of fiduciary duty, negligence, nuisance and
strict liability, but claimed causes of action were not disclosed
by the pleadings in trespass, battery and negligent battery. Canada
challenged the pleading of all causes of action except fiduciary
duty. Justice Murphy ruled in 2010 that all of these causes of
action were certifiable. His decision on the causes of action
therefore did not consider the decision of the Ontario Court of
Appeal in Smith v. Inco:
"All causes of action advanced include arguable claims.
Testimony at the motion hearing provided some evidentiary basis for
each cause of action -it is not plain or obvious that any will not
succeed. Each raises an issue to be tried and should be certified.
My conclusion does not preclude either re-evaluation of causes of
action being advanced or pleading amendment if additional
information is developed as the claim progresses; however, progress
of the case should not be delayed by more inquiry at this
The federal and provincial governments have not yet announced
whether they will appeal.
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