Canada: Sydney Tar Ponds: Remediation & Medical Monitoring Class Action Certified

Edited by Luke Dineley

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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