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On March 19, 2012, the Superior Court of Quebec granted to Mr.
François Deraspe ("Deraspe") an authorization to
institute a potentially huge class action against Canadian Zinc
Electrolytic Ltd. ("Zinc"), a zinc refinery located in
Salaberry-de-Valleyfield, Quebec. It was Deraspe' second try
– his first motion had been denied in 2009 by the Court
of Appeal.
The motion was introduced following events that took place on
the evening of August 9, 2004. It is alleged that a mechanical
failure at Zinc caused the release of 5 tons of sulphur trioxide
which, in the air, formed a plume that travelled eastwards, through
neighbouring cities, up to the western portion of the island of
Montreal, causing, in those exposed along the way, eye and throat
irritation, respiratory difficulties, headaches, asthma and other
health problems, of a temporary nature.
Deraspe's first motion to institute a class action had been
denied based, in part, upon the finding, at the Superior Court
level, that the damages suffered by each individual would vary and
that the composition of the plume likely varied along its
trajectory and that, for these two reasons, the group, as proposed,
lacked in commonality. The Court of Appeal confirmed the Superior
Court's judge decision on the ground that the description of
the proposed group was too vague in that it lacked geographical and
temporal references. The Court further found that that the Superior
Court judge's conclusion regarding the fact that individual
issues would predominate over common issues was not affected by an
overriding error.
In its second try, successful so far, Deraspe introduced both
geographical and temporal limitations in the group's
description, naming the various municipalities and streets
allegedly affected and giving, for each such geographical area, the
time at which the plume allegedly reached the affected area. This
was based on a report prepared by Environment Canada following the
events and released after the Court of Appeal hearing on the first
motion. Deraspe also limited the group to persons having
experienced physical ailments simultaneously with their exposure to
the plume.
Based on the new group description, the Superior Court found
that there were questions that would benefit from a common
determination, such as whether Zinc has been negligent, the
trajectory of the plume, the evolution of its composition, the
general nature of ailments that may be related to an exposure to
the plume and, finally, whether exemplary and punitive damages
should be granted. The fact that causation may have to be
determined, at least in part, on an individual basis was not
sufficient to deny the motion.
While environmental class actions in Quebec are often based on
neighbourhood disturbances (a no-fault regime, as decided by the
Supreme Court of Canada in St. Lawrence Cement Inc. v.
Barrette), Deraspe chose to base this claim on general civil
liability principles – fault will have to be proven. One
of the obstacles that Deraspe may have to overcome will be the very
conclusions of Environment Canada with regard to the alleged events
(Environment Canada did not impose fines or lay charges against
Zinc for the alleged events): portions of the Environment Canada
model, quoted in the Superior Court judgement, appear to conclude
that physical ailments that may have been suffered by individuals
would have been minor and temporary in nature.
Deraspe also claims punitive damages against Zinc, alleging that
by failing to advise the authorities and by deliberately releasing
false information concerning the nature of the plume, Zinc
prevented people from taking simple measures to protect their
health against the potential effects of the discharge.
Should the judgement not be appealed, the class action would be
allowed to proceed. However, this judgement should not be
interpreted as any indication as to the potential success or
failure of the case. It would be expected that Zinc will appeal the
judgement, given the potential monetary impact of the class action,
estimated, by certain observers, as up to $900 million.
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