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Some environmental disputes may be efficiently resolved using
class actions. As one example, in St. Lawrence Cement Inc. v.
Barrette persons affected by cement factory dust were awarded
compensation, inversely proportional to distance from the source,
in 2008 by the Supreme Court of Canada. Personal injury claims, in
contrast, are not likely to be certified as class actions
– the issues are just too individualized.
The Nova Scotia Supreme Court recently certified a class action
relating to the Sydney Tar Ponds1: MacQueen v.
Sydney Steel Corporation (2011 NSSC 484). The contamination
accumulated over a century of coal and coke operations. Significant
remediation of the manufacturing site and tar ponds has been
completed. There has been no remediation of private lands. Canada
and Nova Scotia are defendants having each operated the facility.
Affected property owners in the Sydney Steel case seek
remediation and removal of the contaminants. Residents are also
asking for a medical monitoring program to determine health
impacts. The Court permitted class claims to be advanced in
nuisance, trespass, battery, breach of fiduciary duty and strict
liability. Property owners are, in addition, permitted to proceed
to a common issues trial on a negligence claim. Class counsel
initially proposed a class within five kilometers of the site. The
Court narrowed the class, certifying defined zones based on levels
of lead concentration in the soil exceeding regulated guidelines.
Areas less impacted were removed from the class action. Common
issues were certified in relation to source of contaminants; extent
of pollution and its nature; and defendants' knowledge, duties
and conduct. Whether remediation or medical monitoring are
available remedies have also been certified as common issues.
As demonstrated in Inco, class certifiable issues may
not necessarily become successful claims on their merits. In
Inco, the Ontario Court of Appeal certified property value
diminution as a common issue (the plaintiffs having agreed to drop
personal injury claims.)2
Six years later, the same Court dismissed all claims so
certified. On the merits, no valid claim existed to be free of
nickel particles deposited on class members' properties absent
a reasonable claim of personal injury.3 On April 26,
2012, the Supreme Court of Canada denied leave to appeal the Court
of Appeal's decision in Inco dismissing the claims. No
written reasons were given. Sydney Steel and Inco are the
most complex Canadian environmental class actions certified to
date. The final outcome of Inco has now been determined,
whiled Sydney Steel is ongoing. Their final outcomes are
likely to impact this area of the law for many years to come.
Footnotes
2 Pearson v. Inco (2005), 261 D.L.R. (4th) 629
(C.A.).
3 Smith v. Inco Limited, 2011 ONCA 628;
Ellen Smith v. Inco Limited, [2011] S.C.C.A. No.
539.
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