The Supreme Court of Canada (SCC) has
spoken: past and present neighbours of the notorious Sydney,
Nova Scotia Tar Ponds area cannot bring an environmental class
action against the federal and provincial governments for loss in
property value and for intensive medical supervision. The
neighbours wanted to hold the federal and provincial
governments liable for air, water and soil pollution caused by the
historic Sydney steel mill and coke works, and the waste they
dumped in the Tar Ponds.
For crass political reasons, the two governments had
taken over and subsidized the money-losing, privately owned
mill, its coke works and Tar Ponds half a century ago.
Government money (much of it federal) has since been used to bury and cap
the worst of the contaminants on site.
This leaves undisturbed the decision of the Nova Scotia
Court of Appeal in Canada v. MacQueen.
wrote earlier, the Court of Appeal decertified the
environmental class action, in an important decision on
environmental torts for historic contamination. The Court ruled
that the neighbours' pleadings did not support the cause
of action of strict liability as based on the rule in Rylands
v. Fletcher. They also did not support the causes of
action of trespass, battery, and negligent battery.
The Court ruled that the remaining causes of action, namely,
nuisance, negligence, and breach of fiduciary duty, were not
sufficiently common to all the prospective class members to justify
certification as class actions. A class action lawsuit
therefore would not save judicial resources nor give claimants
easier and less expensive access to justice, because individual
issues would overwhelm the common ones.
Last week, the SCC refused the neighbours'
application for leave to appeal. As is common practice, the SCC did
not give reasons for its decision not to hear the case.
The plaintiffs can still attempt to pursue individual claims
under the causes of action that the Court of Appeal did not dismiss
– i.e. negligence, nuisance and breach of fiduciary
duty. However, they have lost the many advantages of a class
action, such as sharing legal and expert fees, and much greater
willingness of counsel to litigate on a contingency
basis. Another hurdle is the chill cast by the hefty
$700,000 costs award that the Court of Appeal ordered the neighbours to
pay for the failed certification attempt.
Reportedly, two law firms involved in the case will
pay the award.
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