The Quebec Superior Court has recently authorized what may be
environmental class action ever instituted in Canada. The
lawsuit concerns the release of a cloud of toxic gas from Canadian
Electrolytic Zinc's refinery in Quebec in August 2004. The
Court has authorized representative plaintiff François
Deraspe to act on behalf of all persons in certain specified areas
who claim to have experienced noxious symptoms including eye, skin,
and throat irritation, respiratory problems, coughing, and asthma
attacks, when they were exposed to the gas cloud. Counsel has
indicated that Mr. Deraspe will seek between $5,000 and $10,000 in
damages, plus $5,000 in punitive damages, for each class member. It
has been reported that the total damages could be up to $900 million.
Canadian Electrolytic Zinc Ltd. ("CEZ") has a
treatment plant at Salaberry-de-Valleyfield, Quebec. On the evening
of August 9, 2004, Mr. Deraspe, the representative plaintiff,
observed a heavy fog around his house (7.4 kilometers from the
plant). He learned from media reports that the breakdown of a pump
at the plant had caused several tons of sulphur trioxide to vent
into the air over nearby residential areas. Sulphur trioxide is a
corrosive gas that generates sulphuric acid on contact with water,
and can result in chemical burns. Mr. Deraspe sought court
authorization to bring a class action on behalf of persons exposed
to the toxic cloud who showed the health symptoms characteristic of
exposure to sulphur trioxide.
The case has had a lengthy procedural history. The first motion
for authorization to bring a class action was rejected by the
Quebec Superior Court in 2008. In 2009, the Court of Appeal upheld that
decision, for two reasons. First, the class definition was too
vague. Second, individual issues predominated over common issues,
as the toxic cloud could have different effects on different
persons, and therefore, individual evidence would be required to
establish fault, injury, and damages. The Court noted that imposing
geographic and time limits would improve the class definition, but
refused to let Mr. Deraspe modify the class definition to that
extent on appeal.
Mr. Deraspe brought a new motion for authorization with a new,
spatially and temporally limited, class definition. The defendant
tried unsuccessfully to have the motion dismissed as
res judicata and appealed that issue unsuccessfully all the way
to the Supreme Court of Canada, (leave was denied). Mr.
Deraspe's second attempt to obtain court authorization was
therefore heard in 2012.
The judge focused on the issues identified by the Court of
Appeal in its decision on the original motion for authorization:
the vagueness of the class definition, and the predominance of
individual issues. She held that both had been improved enough by
the new class definition to justify authorizing the class action.
The new definition limits the proposed class: (i) geographically to
persons who were physically present in specified areas along the
path of the gas cloud, and (ii) temporally, to persons who claim to
have experienced adverse symptoms simultaneous with their exposure
to the gas cloud. The judge certified as common issues those
related to CEZ's fault or negligence in relation to venting
sulphur trioxide, the path and chemical composition of the gas
cloud, the types of health problems that could generally have
resulted from exposure to the gas cloud, and the appropriateness of
punitive damages. Although causation and damages would still
require individual determination, the individual issues no longer
predominated over the common ones, as the determination of these
common issues would significantly advance the action.
* Sinziana Tugulea is an articling student in Stikeman
Elliott's Toronto office
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