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Court File No.

12023/01 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: WILFRED ROBERT PEARSON Plaintiff - and INCO LIMITED, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CORPORATION OF THE CITY OF PORT COLBORNE, THE REGIONAL MUNICIPALITY OF NIAGARA, THE DISTRICT SCHOOL BOARD OF NIAGARA and THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD Defendants Proceeding under the Class Proceedings Act, 1992 PLAINTIFF'S FACTUM (MOTION FOR CERTIFICATION) PART I THE MOTION 1. The plaintiff seeks certification of this action as a class proceeding under the Class

Proceedings Act, 1992, S.O. 1992, c.6 (the "CPA"). 2. This action arises out of the operation by Inco Limited ("Inco") of a refinery in Port

Colborne, Ontario which was used for the processing of nickel and other metals (the "Inco Refinery"). The Inco Refinery opened in 1918. In 1984, Inco stopped processing nickel at the Inco Refinery, but the refining of cobalt and certain precious metals has continued.
Affidavit of Dr. Thomas Burnett, sworn January 15, 2002 (the "Burnett Affidavit"), paras. 3-7, Plaintiff's Motion Record, Volume I, tab 5, pp. 106-107

3.

The plaintiff alleges that the Inco Refinery has continuously emitted toxic, noxious,

dangerous and hazardous substances into the natural environment including the air, water and soil of Port Colborne. The plaintiff contends that these emissions have resulted in the presence

-2 of contaminants in the lands owned or occupied by the surrounding residents, especially nickel oxide, and in addition to being toxic substances some of these contaminants are also human carcinogens. The presence of these contaminants has caused damage to the properties and endangered the health of the surrounding residents. The action seeks damages from the

defendants in the amount of $600 million and punitive damages of $150 million.
Fresh as Amended Statement of Claim dated January 17, 2002 (the "Statement of Claim"), Plaintiffs Motion Record, Volume II, tab 1A, paras. 1, 11-19

4.

The Ministry of the Environments (MOEs) own data shows that nickel contamination

in Port Colborne is significantly higher than anywhere else in Ontario. In terms of air quality, even if the most recent monitoring data (from 2001, which is still suspect) is used, Port Colbornes air contains on average almost 40% more nickel than any other community that was tested. When soil results are compared, the level of contamination near the Inco Refinery (5,588 parts per million, ppm) is the most contaminated site measured in the province, with levels more than double those found even in Sudbury, the "Worlds Nickel Capital.
Affidavit of James Smith, sworn March 28, 2002, (the J. Smith Affidavit), Motion Record of HMQ, Volume III of IV, tab 1F, Part A Soil Investigation: p. 76 of 80; Part B Human Risk Assessment: Appendix 1, p. 2 of 18

5.

The MOE has also confirmed that:


(a) (b) Inco is the source of the nickel, copper and cobalt contamination through the operation of the Inco Refinery in Port Colborne; and Inco has discharged contaminants into the natural environment, which pose a risk to the natural environment and to human health for a substantial number of residents of Port Colborne.
Affidavit of Lynn McArdle, sworn October 18, 2001, (the McArdle Affidavit), Motion Record of HMQ (motion re: particulars), Volume II of IV, tab 8, p. 1 of 97; see also Affidavit of J. Smith, tab 1F

6.

The plaintiff contends that in addition to nickel, copper and cobalt, Inco has also emitted

arsenic, chlorine, lead and zinc at harmful levels, that Inco is also responsible for soil

-3 contamination below 5 cm. (this being the maximum soil depth that Inco now accepts responsibility for), that the contamination is more widespread than Inco and the MOE say, and that the levels of contamination present are more severe and harmful to humans and to the natural environment than Inco or government regulators acknowledge.
Statement of Claim, paras. 11-19, 24-63

7.

Inco denies responsibility for the contamination other than nickel, copper and cobalt,

denies responsibility for contamination greater than 5 cm. below the surface (where most of the contamination in Port Colborne is now found), denies responsibility for high levels of contamination now being found inside the structures of homes, and denies that any of the levels found of any contaminants (inside or out) are harmful. As a result, all clean-up activity in Port Colborne to date has taken place only after draft or final orders have been issued by the MOE against Inco. No remediation has occurred prior to, at minimum, a draft order being made.
Affidavit of Kal Haniff, sworn March 28, 2002 (the Haniff Affidavit) paras. 2138, Motion Record of the Respondent HMQ, Volume IV of IV, tab 1 at pp. 6-10 Affidavit of Dr. Bruce Conard, sworn March 21, 2002, (the "Conard Affidavit"), para. 29, Responding Motion Record of Inco Ltd., Volume I, tab 1, p. 14 & tab 2B Transcript of the cross-examination of Dr. Bruce Conard, November 12, 2001, page 6, line 18, question 14 to page 7, question 16, line 12

8.

The types of contaminants that Inco is liable for, how widespread the contamination is,

and at what levels of contamination the natural environment and human health become endangered, are all common issues for trial that can best be resolved through a class proceeding. In addition, the duties, standards of care and conduct of all of the defendants, and the ability of the class to obtain an award of punitive damages, are all common issues. Finally, the question of compensation to the class should damages be owed by any of the defendants can only be addressed through a class proceeding.

-4 9. The plaintiff brings this action on behalf of the following class (the "class" or "class

members"):
(a) All persons owning or occupying property since March 26, 1995 within the area of the City of Port Colborne bounded by Lake Erie to the south, Neff Road/Michael Road to the east, Third Concession to the north and Cement Road/Main Street West/Hwy 58 to the west, or where such a person is deceased, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person (the "OwnerOccupier Class)"; All students attending schools operated by the District School Board of Niagara or the Niagara Catholic District School Board since March 26, 1995 within the area of the City of Port Colborne bounded by Lake Erie to the south, Neff Road/Michael Road to the east, Third Concession to the north and Cement Road/Main Street West/Hwy 58 to the west, or where such a person is deceased, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person (the "Student Class"); and All living parents, grandparents, children, grandchildren, siblings, and spouses (within the meaning of Section 61 of the Family Law Act) of persons defined in paragraphs A and B above, or where such a family member has died thereafter, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person (the "Family Class").
Affidavit of Wolfgang Kaufmann, sworn January 16, 2002 (the "Kaufmann Affidavit"), paras. 2 4, Plaintiff's Motion Record, Volume I, tab 2, p. 24

(b)

(c)

10.

The current population of Port Colborne is estimated at 18,500. Approximately 17,000 In addition, the

individuals reside within the boundaries proposed in the class definition.

proposed class would also include former residents of Port Colborne who lived in the community after March 26, 1995, but have since moved away. It would also include owners of property within the geographic boundaries set out above, students and former students, and Family Law Act claimants, some of whom may not live within the City of Port Colborne. Consequently, the proposed class numbers approximately 20,000 persons.
Kaufmann Affidavit, para. 4

11.

The boundaries of the class represent the approximate boundaries of the City of Port

Colborne. Elevated levels of nickel contamination above Ontario background levels of MOE Table F Guidelines have been found throughout the entire area where the proposed class

-5 members live. Elevated levels of nickel contamination above MOE Table A Guidelines, have also been found throughout large portions of the area where the proposed class members live.
Kaufmann Affidavit, para. 3

12.

The most common contaminant found today in Port Colborne is nickel. The plaintiffs

and Incos experts in fact agree that at least 20,000 tonnes of nickel has been deposited by Inco across Port Colborne. Testing by both the MOE and Inco has indicated that most, if not all the nickel in Port Colborne is likely nickel oxide.
Burnett Affidavit, paras. 11 & 14 Affidavit of Dave McLaughlin, sworn March 28, 2002 (the "McLaughlin Affidavit"), Motion Record of the Respondent HMQ, Volume I, tab 1 E, p. 80

13.

The plaintiff has also undertaken testing in order to confirm that the nickel in Port

Colborne is indeed nickel oxide. Using X-Ray Absorption Spectroscopy (XAS) speciation testing, (the most advanced form of metal speciation), scientists from North Carolina State University testing for nickel in Port Colbrone (utilizing the U.S. governments National Syncrotron Light Source) have now also confirmed that 80% to 100% of the nickel is in fact nickel oxide.
Burnett Affidavit, para. 12

14.

Nickel Oxide has been specifically classified by the Government of Canada as a "Group This means that Health Canada has

One - Carcinogenic to Humans toxic substance.

conclusively determined that there is a direct causal relationship between exposure to nickel oxide and cancer in humans, and that the risk of cancer exists at any level of exposure. In addition, while Incos speciation testing also claims to have discovered certain other forms of nickel in Port Colborne, Health Canada has also expressly identified each of these forms as a

-6 Group One carcinogen. As a result, any further attempts to raise the issue of the type of nickel in Port Colborne are for all practical purposes moot. The MOE concurs.
Burnett Affidavit, para. 12 Supplementary Affidavit of Dr. Thomas Burnett, sworn April 10, 2002 (the "Burnett Supplementary Affidavit"), paras. 33-44, Plaintiff's Supplementary Motion Record, tab 1, pp. 10-13 J. Smith Affidavit, tab 1 F, Part A, pp. 3-4 of 8

15.

At the same time, as noted above, other contaminants in addition to nickel oxide have

been escaping throughout the time that the Inco Refinery has been operating. For example, it is estimated that Inco has deposited over 1000 tonnes of lead on class members' lands. Until now, these other contaminants have not been attributed to Inco.
Burnett Affidavit, para. 15 J. Smith Affidavit, tab 1F

16.

The issues raised by this claim are best resolved through a class proceeding. The claim

meets all of the tests for an environmental class proceeding as set out in Hollick v. Toronto. The claims here are as amenable, if not more amenable to class treatment than those found in Rumley v. B.C. (abuse of residential school students over a period of more than 40 years) and Carom v. Bre-X (alleged misrepresentations to thousands of investors), where the courts have certified trials of common issues which focus exclusively on the conduct of the defendants and their alleged systemic corporate or governmental negligence. The presence and the stories of the plaintiff and the class members were not required for the first stage of these class proceedings and would not be required here.
Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) [tab 2] Rumley v. B.C. (2001), 205 D.L.R. (4th) 39 (S.C.C.) [tab 3] Carom v. Bre-X Minerals Ltd. (2000), 196 D.L.R. (4th) 344 (Ont. C.A.) [tab 5]

-7 17. In addition to Rumley and Carom, numerous other actions have been certified as class

proceedings where the issues of damages and causation will require some form of individual assessment following the resolution of the common issues.
Anderson v. Wilson (1999), 175 D.L.R. (4th) 409 (Ont. C.A.) [tab 4] Bendall v. McGhan Medical (1993), 14 O.R. (3d) 734 (Gen. Div.) [tab 24] Wilson v. Servier Canada Inc. (2002), 50 O.R. (3d) 219 (S.C.J.) [tab 21]

18.

Fundamental issues regarding the types of emissions, the general scope and effect of the

contamination released by Inco, as well as all of the various defendants' conduct (and particularly that of Inco), can be litigated as common issues and tried without the involvement of any class member. The common issues as framed are "substantial ingredients" of each class member's case. Their resolution will advance the litigation in a fair, efficient and manageable way.
Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at paras. 18, 26 [tab 2] Western Canadian Shopping Centres Inv. v. Bennett Jones Verchere (2001), 201 D.L.R. (4th) 385 (S.C.C.) at para. 39 [tab 1]

PART II THE FACTS The plaintiff 19. The plaintiff Wilfred Robert Pearson (Pearson) and his wife reside at 97 Rodney Street,

Port Colborne, Ontario, one block away from the Inco Refinery. The Pearsons purchased their home in 1980.
Statement of Claim, para. 1 Affidavit of Wilfred Pearson, sworn January 17, 2002 (the "Pearson Affidavit"), para. 1, Plaintiff's Motion Record, Volume I, tab 1, p. 9

20.

In September of 2000, testing by the MOE determined that the following levels of

contamination (expressed in parts per million or ppm) were present in the soil at various locations and depths on the Pearson property:

-8

Contaminant Arsenic Cobalt Copper Lead Nickel 20 ppm 20 ppm

MOE Guideline 44 ppm 95 ppm 480 ppm 360 ppm

Present In Soil

225 ppm 250 ppm 200 ppm


Pearson Affidavit, para. 3

6,100 ppm

21.

In addition, a sample taken inside the structure of the Pearson home (the attic) and

submitted to Niagara Analytical Inc. for analysis at Envirotect Laboratories Inc. showed that the following levels of contamination were present inside the Pearson home:
Contaminant Arsenic Cobalt Copper Lead Nickel Zinc 20 ppm 20 ppm 225 ppm 250 ppm 200 ppm 600 ppm
Pearson Affidavit, para. 6

MOE Guideline 58 ppm 89 ppm

Present in Home

813 ppm 1,700 ppm 5,280 ppm 2,560 ppm

22.

Ever since the spring of 2000 when the public was informed of the high levels of

contamination in Port Colborne, house sales in Pearson's neighbourhood have dropped dramatically. Prices have dropped almost 50% when compared to sales in other parts of Port Colborne and the Niagara Penninsula. The uncontradicted evidence is that Pearson's lender declined to proceed with an application for mortgage financing until he produced "an environmental certificate confirming that [his] property is free and clear of all contamination." The uncontradicted evidence also is that the only event that has occurred in Port Colborne over the past 4 years that would have had the potential to affect house prices and mortgage

-9 transactions in this way has been the announcement of high levels of contamination caused by Incos operations in Port Colborne.
Pearson Affidavit, para. 11 Affidavit of Rose Wallington, sworn April 6, 2002 (the Wallington Affidavit), Plaintiffs Supplementary Motion Record, Tab 4, p. 94 Affidavit of Bill Berkhout, sworn April 5, 2002, (the Berkhout Affidavit), para. 12 Plaintiffs Supplementary Motion Record, Tab 5, p. 98

23.

During the time that Pearson has lived in Port Colborne, he has also developed skin

conditions, coughs and other minor ailments, and has suffered two major heart attacks, experienced insomnia, loss of sexual function, depression and severe headaches. Pearson has been advised by his medical doctor that these aliments are all consistent with exposure to one or more of the contaminants emitted by Inco or the stress related to the circumstances that he and his family now find themselves facing as a result of this contamination.
Pearson Affidavit, paras. 16-23

The defendants 24. As noted above, the defendant Inco has carried on business as a producer of nickel,

copper, cobalt and other precious metals from the Inco Refinery in Port Colborne, Ontario and elsewhere throughout the world.
Statement of Claim, para. 4 Burnett Affidavit

25.

The defendant Her Majesty the Queen in Right of Ontario (HMQ) through its various

representatives (in particular the MOE) is the primary public regulator of the Inco Refinery. The defendant the Corporation of the City of Port Colborne (the "City") is a municipal corporation incorporated pursuant to the laws of the Province of Ontario. The Inco Refinery is located within the boundaries and is under the jurisdiction of the City. The defendant the Regional

- 10 Municipality of Niagara (the "Region") is a municipal corporation incorporated pursuant to the laws of the Province of Ontario. The Inco Refinery is located within the boundaries and is under the jurisdiction of the Region, and particularly the local Medical Officer of Health (the "MOH").
Statement of Claim, paras. 5 7 Kaufmann Affidavit, para. 12

26.

The defendant the District School Board of Niagara (the DSBN) and the defendant the

Niagara Catholic District School Board (the NCDSB) were established pursuant to regulations made under the Ontario Education Act and related legislation, and operate schools throughout the Niagara Region including Port Colborne. Subject to certain conditions and the approval of this Honourable Court, the action as against the school boards has been resolved.
Statement of Claim, paras. 8 - 9

The defendants' alleged knowledge and the supporting facts 27. The plaintiff alleges that Inco has known for decades of some or all of the extensive and

severe damage that the ongoing release of contaminants (including the carcinogen nickel oxide), and other activities at the Inco Refinery has caused and continues to cause to its neighbours' property and health.
Statement of Claim, para. 20

28.

However, despite this knowledge, it was not until the year 2000 that Port Colborne

residents were informed of any of the nature or scope of the damages caused to their property and health by Inco.
Statement of Claim, para. 21 Kaufmann Affidavit, paras. 12 -27

29.

The plaintiffs allege that the City, HMQ and the Region also knew or ought to have

known of some, or all of the extensive and severe damage that the ongoing release of

- 11 contaminants and other activities at the Inco Refinery has caused and continues to cause to the surrounding neighbourhoods.
Statement of Claim, para. 22 Kaufmann Affidavit, paras. 12 - 27

30.

However, despite this knowledge, the City, HMQ and the Region completely failed to

take such steps or apply such laws, regulations and guidelines as their various mandates require in order to prevent or attempt to prevent the extensive and severe damage to health and property that the residents of Port Colborne have suffered.
Statement of Claim, para. 23 Kaufmann Affidavit, paras. 12 - 27

31.

HMQ and the Region ought to have known that there were risks of harm, and actual harm

being caused by this exposure. Since 1994, for the reasons set out in paragraphs 32 through 39 below, HMQ and the Region also ought to have known that Port Colborne residents were being exposed to the known human carcinogen nickel oxide.
Kaufmann Affidavit, para. 23

32.

In 1994, the Government of Canada released a comprehensive analysis under the

Canadian Environmental Protection Act of nickel and its compounds.


Kaufmann Affidavit, para. 28 See also Affidavit of Dr. Thomas Burnett sworn January 15, 2002, Exhibit F, Nickel and its Compounds

33.

As noted above, in the 1994 report Health Canada specifically identified the most

common form of nickel in Port Colborne (i.e. nickel oxide) as a human Group One Carcinogen, a substance for which there is considered to be some probability of harm for the critical effect (cancer) at any level of exposure.

- 12
Kaufmann Affidavit, para. 29

34.

Well before 1994, tests conducted by Inco in the 1970s (copies of which were provided

to the MOE at the time), as well as other information and materials regarding the output from the Inco Refinery were readily available to the defendants. The tests, information and materials also made it clear that nickel oxide was in fact the primary emission from the Inco Refinery. As a result, all of the defendants knew or ought to have known that the primary contaminant in Port Colborne was not nickel, but nickel oxide.
Kaufmann Affidavit, para. 30

35.

However, prior to March of 2001, the date this action was commenced, none of the

defendants had disclosed this fact to the residents of Port Colborne.


Kaufmann Affidavit, para. 31

36.

Within days of being retained, class counsel consulted with Dr. Thomas Burnett (former

Director of Environmental Affairs with Inco) and were advised that for numerous reasons, the primary contaminant in Port Colborne was likely not nickel, but nickel oxide. These reasons include the basic fact that nickel oxide was the primary feed material processed at the Inco Refinery furnaces, that raw nickel oxide is added part way through the process and much of it likely escaped into the stack emissions, and that nickel oxide is inherently stable and does not readily transform or change its form in soils. Most of this is basic, elementary information available from public libraries.
Kaufmann Affidavit, para. 32

37.

As a result of discussions with class counsel, on March 19, 2001, Ms. Ellen Smith (a

local resident) sent an e-mail to Mr. Dave McLaughlin, a soils expert with the MOE taking a

- 13 leading role in the Port Colborne investigation. He confirmed that the vast majority, if not all of the Ni [nickel] detected in the total metal analysis [of Port Colborne soils] is nickel oxide.
Kaufmann Affidavit, para. 33

38.

On March 27, 2001, class counsel announced that Port Colborne residents were being

exposed to the carcinogen nickel oxide, and not just to nickel. This was the first time that this information had been disseminated to the residents of Port Colborne.
Kaufmann Affidavit, para. 34

39.

As also noted above, the fact that nickel oxide is the primary contaminant has now been

confirmed in further testing done by the MOE, in testing done on behalf of the plaintiff (see the affidavit of Dr. Thomas Burnett sworn January 15, 2002, Exhibits D and E), and in tests conducted by Incos own consultants.
Kaufmann Affidavit, paras. 35

Alleged damages to the residents 40. The ongoing discharge of contaminants (including known human carcinogens) and other

activities at the Inco Refinery, and the failure of the defendants to take proper or appropriate steps to prevent or minimize the effects of these contaminants and activities, has resulted in (but is not limited to) the following types of losses or injuries to property:
(a) (b) loss of use of and enjoyment of property owned, occupied or used by class members, including extensive business and personal losses; and loss of value of property owned, occupied or used by class members, including the complete devaluation of certain properties, and loss of the ability to sell, finance or mortgage numerous properties.
Pearson Affidavit, paras. 1623; See also Statement of Claim, para. 24 Affidavit of Mark Richardson, sworn January 14, 2002, (the "Richardson Affidavit"), paras. 612, Plaintiff's Motion Record, Volume I, tab 4, pp. 83 85 Wallington Affidavit, Exhibit A Berkhout Affidavit, paras. 11-16

- 14 41. Furthermore, the ongoing discharge of contaminants (including known human

carcinogens) and other activities at the Inco Refinery, and the failure of the defendants to take proper or appropriate steps to prevent or minimize the effects of these contaminants and activities, has resulted in (but is not limited to), the following types of losses or injuries to the physical health and well being of the residents of Port Colborne:
(a) short term and long term exposure to substances including but not limited to the carcinogen oxidic nickel, copper, cobalt, chlorine, arsenic, zinc and lead, leading to irritation and inflammation of the skin, eyes, nasal passages and lungs, coughing, choking, inability to breathe, burning sensations in the chest and abdomen, nausea, vomiting, headaches, dizziness, collapse, loss of consciousness, loss or impairment of the senses of smell and taste, loss of appetite, swelling of exposed areas, pain and suffering, loss of income, impairment of earning ability, future care costs, medical costs, loss of amenities and enjoyment of life, anxiety, nervous shock, mental distress, emotional upset, and out of pocket expenses; and short term and long term exposure to, but not limited to, oxidic nickel, copper, cobalt, chlorine, arsenic, zinc and lead, which exposure has led and will continue to lead to long term health consequences, including but not limited to increased risks of cancer and lung disease. As a result of this exposure, some Class members have already, and others will continue to experience needless illness, loss of amenities and enjoyment of life, and will die premature deaths.
Richardson Affidavit, paras. 4-13; See also Statement of Claim, para. 25

(b)

42.

As a result of the ongoing discharge of contaminants (including known human

carcinogens) and other activities at the Inco Refinery, and the alleged failure of the defendants to take proper or appropriate steps to prevent or minimize the effects of these contaminants and activities, the parents, grandparents, children, grandchildren, siblings, and spouses of the Port Colborne residents have suffered damages recognized pursuant to section 61 of the Family Law Act. These damages include, but are not limited to:
(a) pecuniary losses resulting from the injury to their relatives, expenses incurred for the benefit of such relatives, travel expenses incurred in visiting such relatives during their treatment and recovery; a reasonable allowance for loss of income and the value of nursing, housekeeping and other services rendered to such relatives; and

(b)

- 15 (c)
an amount to compensate for the loss of guidance, care and companionship reasonably expected to be received from such relatives if the release of contaminants and other activities at the Inco Refinery had not occurred.
Statement of Claim, para. 26 Richardson Affidavit, paras. 413

Phytotoxic and human health effects 43. The plaintiff has retained Dr. Mark Richardson, the former Head of Health Canada's Air

and Waste Section, the federal government department that amongst other activities, analyses and assesses substances identified as potentially toxic under the Canadian Environmental Protection Act.
Richardson Affidavit, para. 2

44.

Dr. Richardson is now routinely retained to conduct community wide risk assessments

and to provide other risk assessment services to the Government of Canada, provincial governments (including the Government of Ontario) and industry.
Richardson Affidavit, para. 4

45.

Dr. Richardson's recent work includes human health risk assessments for Canadian

soldiers stationed in Croatia and in Kosovo; the assessment of human and ecological risks posed by what is considered to be the worst-ever mine tailings disaster in Europe (a spill that devastated approximately 40 km of the Rio Agrio and Rio Guadiamar in Spain); human health risk assessments on behalf of provincial regulators in Wawa, Ontario and Yellowknife N.W.T. related to historic refining operations in those communities; and participating on behalf of the

- 16 Government of Canada in the peer review of and recommendation of improvements to the human health risk assessment for the Sydney Tar Ponds, Cape Breton, Nova Scotia.
Richardson Affidavit, para. 5

46.

As part of his research, Dr. Richardson has also reviewed a wide variety of data and

resources regarding the effects of exposure to the contaminants of concern in the instant case. From this research he prepared a Summary of Health and Phytotoxic Effects for arsenic, chlorine, cobalt, copper, lead, nickel (including oxidic nickel) and zinc (the "Summary").
Richardson Affidavit, para. 9

47.

The phytotoxic effects portion of the Summary is drawn from a variety of sources. The

health effects portion of the Summary is drawn primarily from information collected by the Agency for Toxic Substances and Disease Registry (ATSDR) in Atlanta, Georgia. Dr.

Richardson believes that the Summary accurately reflects known health and phytotoxic effects related to exposure to the contaminants of concern in the instant case.
Richardson Affidavit, para. 10

48.

From Dr. Richardsons review, it is clear that damage to common plant species begins to

occur at low levels of exposure. For example, basic staple crops such as corn show significant reductions in plant weight when exposed to less than 300 ppm of nickel. Similarly, oats have shown up to a two-thirds decrease in final weight when exposed to 50 ppm of nickel. The entire area inhabited by the class has been contaminated with nickel above this level.
Richardson Affidavit, tab 4 B, p. 102 Affidavit of Joseph Grignano (the Grignano Affidavit), Plaintiffs Motion Record, Volume III, tab T, p. 122

49.

As noted above, the MOEs own data also shows that nickel contamination in Port

Colborne is significantly higher than anywhere else in Ontario, with the most recent air

- 17 monitoring conducted (2001) revealing that Port Colbornes air contains on average almost 40% more nickel than any other community that was tested, and that soil near Incos Port Colborne Refinery (5,588 ppm) is the most contaminated site measured in the province, with levels more than twice those found even in Sudbury (2,300 ppm).
Affidavit of James Smith, sworn March 28, 2002, (the J. Smith Affidavit), Motion Record of the Respondent HMQ, Volume III of IV, tab 1 F, Part A Soil Investigation: p. 76 of 80; Part B Human Risk Assessment: Appendix 1, p. 2 of 18

50.

Based on the elevated levels of the contaminants of concern found in the area inhabited

or occupied by the class, Dr. Richardson is of the opinion that the members of the class have a greater probability (risk) of exhibiting some, or all of the wide variety of health impacts detailed in the Summary, and that class members will continue to have a greater probability of exhibiting these effects than would an unexposed population.
Richardson Affidavit, para. 11

51.

This opinion has in fact already been confirmed in part through preliminary field work

conducted by Ventana Clinical Research Corporation ("Ventana"), a team of medical consultants retained by Inco. In order to define the scope of work for a large-scale epidemiological study, Ventana conducted an initial assessment of the entire Port Colborne community. While not a quantitative analysis (which will take place later in the study), this assessment involved speaking with hundreds of people in all parts of the city, including residents and medical personnel, over a period of three months last summer. This assessment revealed medical issues of concern that included high incidences of cancer, thyroid problems, stress/mental health issues, child development issues, asthma and respiratory problems, reproductive health issues, stomach

- 18 problems, skin rashes, heart problems and circulatory disease. Based on these findings the Ventana scope of work has been further refined and the study is moving forward immediately.
Transcript of the cross-examination of Dr. Bruce Conard, April 22, 2002, page 11, line 19, to page 12, line 19 Affidavit of Ellen Smith, sworn April 9, 2002, (the "E. Smith Affidavit"), Plaintiff's Motion Record, tab 6A, p. 129

52.

Knowing what is already known regarding the extent of contamination in Port Colborne,

it would also be possible for a clinical epidemiologist to provide statistically reasonable estimates of the number of class members who have likely suffered the specific effects set out in the Summary.
Richardson Affidavit, para. 12

Property devaluation resulting from contamination 53. The plaintiff has retained the services of realtors with extensive experience in the Port

Colborne market, and with extensive experience in data analysis using the Niagara Association of Realtors MLS computer database system. More specifically, Ms. Rose Wallington is a Sales Representative with Royal LePage Real Estate in St. Catharines, Ontario, and a Director and the Chair of the Niagara Association of Realtors Finance Committee. Prior to beginning her career in real estate 10 years ago, for 20 years she was employed by the TD Bank and held positions which included Manager of Productivity Analysis and Research within the Banks national Finance and Control Division (Corporate). She is intimately familiar with data systems and analysis, and specifically with the Niagara MLS PicSURE 5 computer data system.
Wallington Affidavit, paras. 3-5

54.

Ms. Wallington was asked to review real estate transactions on the MLS system and

compare sales since October of 1998 in three areas of Port Colborne to each other, and then to sales in two comparable municipalities (Welland and Fort Erie). This analysis clearly

- 19 demonstrated that since the news of contamination was announced (and well before the commencement of this action), house prices in the Rodney Street area of Port Colborne have declined by approximately 45% when compared to those in other parts of Port Colborne, Fort Erie and Welland. House prices across the balance of the east side of Port Colborne have also declined by more than 10%. As well, prices for homes on the west side of the community are lagging behind those of comparable markets by 2% to 3%.
Wallington Affidavit, Exhibit A, p. 94

55.

The plaintiff has also retained Mr. Bill Berkhout, co-owner and co-principal broker of

Re/Max Welland Realty Limited (Re/Max Welland). Mr. Berkhout was born and raised in Port Colborne and has sold real estate in the Niagara Region and Port Colborne for 27 years. His company Re/Max Welland employs 29 sales persons/brokers who work from offices in Welland and Port Colborne. Re/Max Welland currently leads all other realtors in property sales in both the Port Colborne and Welland markets. From his and his sales staffs direct experience in the market, Mr. Berkhout concurs completely with Ms. Wallingtons statistical analysis of recent Port Colborne market trends. As noted above, Mr. Berkhout and his staff have also indicated that since 1998, no event has taken place in Port Colborne that could account for the significant decline in property values and other problems with sales, rentals and mortgage financing he has observed, other than the announcement of high levels of Inco related contamination being found.
Berkhout Affidavit, paras. 11-15

56.

In contrast, Inco sought opinion evidence from a consultant with no specific background

or knowledge of the Niagara Region or the Port Colborne market. Inco was also provided with a limited amount of statistical information by a St. Catharines appraiser, however, no attempt was made to break down sales within the Port Colborne market into specific areas. As a result of this

- 20 lack of market knowledge and lack of specific data, these individuals were unable to observe any of the trends that were evident in the information collected by the plaintiffs experts.
Affidavit of Frank Clayton, sworn March 20, 2002 (the Clayton Affidavit), Responding Motion Record of Inco Ltd., Volume III, tab 3

Subsidence and settlement 57. Port Colborne residents in certain areas are also suffering losses related to subsurface

operations by Inco that have involved the taking of water for refining operations and attempts to control the migration of contaminants from Incos property. These operations have involved the pumping of water and subsequent disturbance of the natural water table.
Kaufmann Affidavit, para. 39

58.

According to Mr. Paul Bowen of Terraprobe Limited (a geotechnical engineering

company with 25 years experience and more than 80 employees located across Ontario), these operations involve the use of ten purge wells, six of which appear to be active. These purge wells are located on the western boundary of Incos property in close proximity to class members' lands. The purge wells are operated pursuant to a permit issued under the Ontario Water Resources Act that allows Inco to extract up to 345,600 litres per day from the local water table.
Kaufmann Affidavit, para. 40

59.

The water table in this area is near the surface. The underlying material in this area

appears to contain a significant amount of peat and clay. These materials are particularly sensitive to the removal of water content. If water is removed, there is a natural tendency for overlying materials to settle or subside. This could occur even if Inco was in compliance with its 345,000 litre per day maximum pumping limit. However, evidence found in materials filed by Inco with the Ontario Government suggests that Inco may in fact be pumping at a rate far in

- 21 excess of its permitted capacity and drawing water at between 489,600 and 576,000 litres per day, which would only exacerbate this type of subsidence further.
Kaufmann Affidavit, para. 41 Grignano Affidavit, tab T, pp. 119 and 161

60.

Within the area bounded by Rodney Street, Davis Street, Durham Street and Welland

Avenue, there are numerous signs of settling and subsidence causing damage to homes, garages, decks and other structures, sidewalks and driveways. This has also limited some class members ability to sell, finance, mortgage or insure their properties at a fair value, or at all.
Kaufmann Affidavit, para. 42

61.

Mr. Bowen is of the opinion that it is reasonably probable that Incos subsurface

operations have caused or contributed to these losses.


Kaufmann Affidavit, para. 43

Levels of Damages The East Side Community 62. The East Side Community of Port Colborne (also known as the Rodney Street Area) is an

area defined as being bounded by Rodney Street to the south, Davis Street to the east, Durham Street to the north and Welland Street to the west. There are approximately 310 homes within this area. It is estimated that 1000 people live in the East Side Community.
Kaufmann Affidavit, para. 45

63.

The East Side Community directly abuts the Inco Refinery and is the site of the most

extensive contamination found to date anywhere in Port Colborne. For example, the current guideline for nickel in Ontario (human health effects based) is 310 parts per million (ppm). Soils

- 22 at residences in the East Side Community have been tested at levels up to 17,000 ppm. The interiors of residences (attics) have been tested at levels as high as 16,000 ppm.
Kaufmann Affidavit, para. 46

64.

The East Side Community is also one of the least affluent parts of Port Colborne. House

prices, even prior to the announcement of contamination in this area, appear to have averaged $60,000 to $80,000. Economically the area was already somewhat depressed, with low housing costs attracting a large number of elderly persons and others on fixed incomes, as well as partially employed or unemployed persons, persons with disabilities and recipients of social assistance. At any time, between 25% and 40% of residents in this area fall into one of these categories.
Kaufmann Affidavit, para. 47

65.

As noted above, since the announcement of high levels of contamination home sales in

this area have dropped dramatically. As a result, the fair market value of these properties has been depressed.
Kaufmann Affidavit, para. 48

66.

Furthermore, a significant number (at least 75) of the properties in the East Side Since the announcement of high levels of

Community contain rental housing units.

contamination in this area, many of these units have been vacated and have remained vacant, causing the owners of these properties to lose rental income.
Kaufmann Affidavit, para. 49 Berkhout Affidavit, para. 15

67.

In addition, on November 16, 2000, Mr. Allen Kuja, a senior MOE official who had been

working directly in the community for many months, announced at a public meeting that from his observations:

- 23
I might get in trouble for saying this but theres something going on ... There are areas where every single household has someone sick, every single family, some member has something - cancers, rashes, leukemia...

Mr. Kuja was transferred off the Port Colborne project immediately after making these statements.
Kaufmann Affidavit, para. 50

68.

However, further investigations have confirmed Mr. Kuja's statements to be accurate.

Consequently, the East Side Community is also where the majority of health related problems are expected to have occurred, and will reasonably be expected to continue to occur in the future.
Kaufmann Affidavit, para. 51

69.

Preliminary health assessments by government agencies and consultants retained by Inco

have indicated that based on responses from the community, significant further analysis is warranted, and, as noted above, a multi-million dollar health study is scheduled to begin soon. This study will examine all of Port Colborne, but with an emphasis on the East Side Community.
Kaufmann Affidavit, para. 52 E. Smith Affidavit, tab 6A

70.

Damage claims from this area are expected to be relatively large, i.e. in the range of

$10,000 to $250,000 dollars per person.


Kaufmann Affidavit, para. 53

The Table A area 71. In addition to the East Side Community, there are also large portions of Port Colborne,

also primarily on Port Colbornes east side, where contamination levels are above Ontario MOE Table A guidelines. This area covers a substantial amount of residential development, but also includes large tracts of farmland to the north and east of the Inco Refinery (the "Table A Area"). It is estimated that 9000 people live in the Table A Area.

- 24
Kaufmann Affidavit, para. 54

72.

While not as heavily contaminated as the East Side Community, as noted above, the

Table A Area has also suffered a decline in property values. The ability of homeowners to finance these properties has also declined. Many of these properties have contamination levels that also exceed the current Ontario guidelines related to human health. Damage claims from the Table A Area are expected to be more modest, ie. in the range of $1,000 to $10,000 dollars per person.
Kaufmann Affidavit, paras. 55-57

The Table F Area 73. There is also land in Port Colborne where contamination levels are above Ontario MOE This area surrounds the East Side

Table F guidelines (ie. Ontario background levels).

Community and the Table A Area (the "Table F Area"). It is estimated that 10,000 people live in the Table F Area.
Kaufmann Affidavit, para. 58

74.

Given the lower amounts of contamination on these lands, the primary damage suffered

by these persons would be a diminution in value of their properties related to the overall stigma associated with contamination in Port Colborne. Very limited health impacts are expected within the Table F Area. Damage claims from the Table F Area are expected to be in the range of $100 to $2,000 dollars per person.
Kaufmann Affidavit, paras. 59-61

Common liability issues for trial with respect to Inco 75. There are four causes of action pleaded against Inco: (a) nuisance;

- 25 (b) (c) (d) 76. trespass strict liability (Rylands v. Fletcher); and negligence.

The claim in nuisance alleges that: (a) The ongoing release of contaminants and other activities at the Inco Refinery has substantially and unreasonably interfered with Port Colborne residents' use and enjoyment of their lands and premises. In addition to causing extensive property damage, exposures to these contaminants have created widespread short term and long term health consequences and risks.
Statement of Claim, para. 27 Faieta et al., Environmental Harm: Civil Actions and Compensation (Toronto: Butterworths, (1996), pp. 3 26 [tab 25]

(b)

77.

In addition to the common law of nuisance, the plaintiff relies on s. 103 of

Environmental Bill of Rights, which permits the plaintiff to assert a claim for public nuisance. A claim for public nuisance clearly lies on the facts of this case.
Statement of Claim, para. 28 Faeita et al., Environmental Harm, pp. 43 64 [tab 26]

78.

Inco is also liable in trespass, in that Inco has discharged and continues to discharge

contaminants onto lands owned or occupied by the class, thereby directly interfering with and damaging these lands.
Statement of Claim, para. 29 Faieta et al., Environmental Harm, pp. 65 72 [tab 27]

79.

It is also alleged that Inco is liable according to the doctrine of strict liability in Rylands

v. Fletcher, in that the storage of arsenic, chlorine, copper, cobalt, lead, nickel (including nickel oxide) and zinc is a non-natural use of the Inco Refinery lands, and Inco has failed to prevent the escape of these dangerous substances, thereby causing damage to the proposed class.
Statement of Claim, para. 30

- 26
Faieta et al., Environmental Harm, pp. 27 42 [tab 28]

80.

The proposed class lived, owned property and attended schools within close geographic

proximity of the Inco Refinery. Inco knew or ought to have known that a lack of sufficient care on the part of Inco would cause damage to class members. Inco therefore owed a duty of care to the class. The ongoing release of contaminants and other toxins at the Inco Refinery have caused damage to the class which occurred as a direct result of the negligence of Inco or of Incos employees or agents for whom it is legally responsible.
Statement of Claim, para. 31 Faieta et al., Environmental Harm, pp. 73 120 [tab 29]

Specific allegations against Inco that raise common issues 81. It is alleged that Inco or its employees or agents have negligently:
(a) (b) (c) (d) (e) (f) failed to provide adequate equipment or procedures for the construction and continued operation of the Inco Refinery; failed to provide adequate safety equipment or procedures to prevent the release of contaminants from the Inco Refinery; failed to provide adequate equipment or procedures to detect the release of contaminants from the Inco Refinery; failed to provide adequate equipment or procedures to determine the composition and concentration of contaminants released from the Inco Refinery; failed to carry out operations at the Inco Refinery so as not to disturb lands or cause subsidence in the vicinity of the Inco Refinery; failed to ensure that an adequate number of employees operated the Inco Refinery, and failed to ensure that those employees who did operate the Inco Refinery were properly qualified, properly trained and properly supervised; failed to operate or maintain the Inco Refinery in a reasonable or prudent manner; failed to monitor or inspect the Inco Refinery in a reasonable or prudent manner; failed to warn class members of known hazardous emissions, defects and other failures at the Inco Refinery;

(g) (h) (i)

- 27
(j) (k) (l) specifically failed to warn class members that they were, and still are being exposed to the known carcinogen nickel oxide; failed to obtain, in a timely fashion or at all, adequate information or advice in order to rectify known defects and failures at the Inco Refinery; failed to conduct or to cause to be conducted, accurate and complete studies of the impacts of the Inco Refinery, in a timely fashion or at all; failed to comply with specific statutory obligations under section 14 of the Environmental Protection Act by causing or permitting contaminants to be discharged into the natural environment which have resulted in adverse effects.
Statement of Claim, para. 32 Burnett Affidavit, paras. 322 Supplementary Burnett Affidavit, paras. 347

(m)

82.

All of these issues of negligence raise common issues that could be resolved on a

collective basis in a class proceeding. All are based on the knowledge and conduct of Inco, not the knowledge and conduct of class members. A class proceeding is the preferable procedure for the resolution of these issues.
Burnett Affidavit, paras. 322 Supplementary Burnett Affidavit, paras. 347

Specific allegations against HMQ and the MOE that raise common issues 83. Since at least 1959, HMQ has been involved in matters concerning contamination caused

by the Inco Refinery in Port Colborne, initially through the Ontario Department of Mines, the Ontario Department of Agriculture, the Ontario Department of Health, and since 1971 through the MOE.
Statement of Claim, para. 33 Affidavit of Allen Baldwin, sworn January 14, 2002 (the "Baldwin Affidavit"), paras. 417, Plaintiff's Motion Record, Volume I, tab 6, pp. 215219

84.

In 1959 and 1960, representatives from the Department of Mines, the Department of

Agriculture and the Department of Health took detailed measurements of heavy metal

- 28 concentrations (nickel, copper, iron) in the dustfall, suspended particulate matter, soil and vegetation in the area North East of the Inco Refinery, and conducted further experiments.
Statement of Claim, para. 34 Baldwin Affidavit, paras. 4 - 17

85.

Mr. Allen Baldwin was employed by the Ontario government from 1969 to 1996. In

1969 Mr. Baldwin and others established what (in 1971) became the MOEs first area office in Welland, Ontario. During Mr. Baldwin's career with the MOE, he was the Senior Abatement Officer and then the Enforcement Officer with direct responsibility for overseeing the operation of the Inco Refinery.
Baldwin Affidavit, para. 2

86.

As a result, Mr. Baldwin is familiar with the policies, operations and procedures of the

MOE as they pertained to the Inco Refinery. He also personally performed numerous inspections of the Inco Refinery, and is directly familiar with the Inco Refinerys operations for a period of more than 25 years.
Baldwin Affidavit, para. 3

87.

Starting in or about 1970, HMQ initiated a policy of inspections of the Inco Refinery. It

became HMQs operational practice to attempt to inspect the Inco Refinery on a regular basis, with these inspections occurring at times once per week, or even more frequently when detailed investigations were taking place. As a result, since 1970, hundreds of inspections of the Inco Refinery have been performed by HMQ. The nature, extent, usefulness and comprehensiveness of these inspections is a common issue for trial.
Baldwin Affidavit, paras. 4-17; see also Statement of Claim, para. 35

- 29 88. One of the purposes of these inspections was to detect defects or deficiencies at the Inco Results of these

Refinery in order to protect the property and health of local residents. inspections were made available to local residents.
Statement of Claim, para. 36 Baldwin Affidavit, paras. 4-17

89.

In 1971, HMQ began issuing Certificates of Approval to Inco for the Inco Refinery.

Since 1971, more than 70 Certificates of Approval have been issued by HMQ to Inco in relation to operational activities at the Inco Refinery. Whether these certificates were properly issued, or provide any defence to Inco, are common issues for trial.
Statement of Claim, para. 35 Baldwin Affidavit, para. 8

90.

One of the alleged purposes of issuing Certificates of Approval was to protect the

property and health of local residents.


Statement of Claim, paras. 3638 Baldwin Affidavit, para. 9

91.

The plaintiff maintains that HMQ also knew or ought to have known that a lack of

sufficient care on the part of HMQ in inspecting, or in issuing approvals in relation to the Inco Refinery would cause damage to class members.
Statement of Claim, para. 39 Baldwin Affidavit, para. 10

92.

In addition, starting in the 1970's HMQ began studying the contamination of lands owned

or occupied by local residents and investigating complaints about the Inco Refinery made by these same local residents.
Statement of Claim, para. 40 Baldwin Affidavit, para. 11

- 30 93. In 1972, it became HMQs operational practice to conduct an annual, detailed survey of

contamination on lands owned or occupied by residents of Port Colborne, and to investigate complaints about the Inco Refinery made by residents of Port Colborne. In 1973, it became HMQs operational practice to conduct a regular ambient air-sampling program for suspended particulate contamination on residents of Port Colbornes lands. As a result of these programs, surveys and investigations, since 1972 thousands of air, soil and water samples have been taken from the contaminated lands, and hundreds of pages of studies and reports have been generated by HMQ.
Statement of Claim, para. 41 Baldwin Affidavit, para. 12

94.

One of the purposes of these programs, surveys and investigations was to protect the

property and health of local residents. The results of these programs, surveys and investigations were also made available or reported to local residents.
Statement of Claim, para. 42 Baldwin Affidavit, para. 13

95.

HMQ also knew or ought to have known that a lack of sufficient care on the part of HMQ

in carrying out these programs, surveys and investigations would cause damage to class members.
Statement of Claim, para. 43 Baldwin Affidavit, para. 14

96.

The plaintiff alleges that a duty of care was owed by HMQ to the class members as a

result of HMQs numerous operational activities related to the Inco Refinery, including: conducting regular inspections for more than 30 years, issuing dozens of Certificates of Approval, conducting regular sampling programs and surveys and making the results available to

- 31 the public, and since 1972, formally investigating complaints made by local residents and reporting the results of these investigations to them.
Statement of Claim, para. 44 Baldwin Affidavit, paras. 15-17

97. has:

However, it is alleged that since beginning its operational activities at the Refinery, HMQ

(a) (b) (c) (d) (e) (f) (g)

failed to properly inspect, monitor and investigate the Inco Refinery; failed to properly issue or ensure compliance with Certificates of Approval issued in relation to the Inco Refinery; failed to warn class members of known hazardous emissions, defects and other failures at the Inco Refinery; specifically failed to warn class members that they were, and still are being exposed to high doses of the known carcinogen nickel oxide; failed to obtain, in a timely fashion or at all, adequate information or advice in order to rectify known defects and failures at the Inco Refinery; failed to conduct or to cause to be conducted, accurate and complete studies of the impacts of the Inco Refinery, in a timely fashion or at all; and failed to apply or enforce the Environmental Protection Act, R.S.O. 1990, c. E.19.
Statement of Claim, para. 45 Baldwin Affidavit, paras. 316 Kaufmann Affidavit, paras. 12-27

98.

From the foregoing, it is clear that the question of whether HMQ owed a duty of care to

the class in these circumstances, what the standard of care was, and whether HMQ took sufficient care in performing its duties to meet that standard are all common issues. Each of these issues can be resolved at a common issues trial without the involvement of class members. 99. HMQ has also repeatedly advised class members that emissions from the Inco Refinery

have never posed any risk to human health. HMQ ought to have known that these statements

- 32 were, in fact, incorrect or inaccurate. Consequently, HMQ is also liable to the class for losses and damages incurred as a result of these statements. The question of "what HMQ knew and when it knew it" (including what care it took and what inquiries it made) can also be resolved at a common issues trial without the involvement of class members.
Statement of Claim, para. 46 Baldwin Affidavit, paras. 1517 Kaufmann Affidavit, paras. 12-27

100.

These statements include, but are not limited to statements made in and through

numerous scientific reports prepared by, in conjunction with, or for HMQ, that were inadequately or improperly conducted and that are seriously flawed and misleading as a result. Whether these statements were misrepresentations is a common issue that can be resolved without the involvement of the class.
Statement of Claim, para. 47 Baldwin Affidavit, paras. 1517 Kaufmann Affidavit, paras. 12-27

101.

These statements also include, but are not limited to misrepresentations intended to cause

class members to believe that they were being exposed to nickel or other non-carcinogenic substances, and not the carcinogen nickel oxide. Whether these statements were

misrepresentations can also be resolved without the involvement of the class.


Baldwin Affidavit, paras. 1527 Kaufmann Affidavit, paras. 12-27

The recent actions and conclusions of the MOE 102. HMQ has recently undertaken three human health risk assessments for the East Side

Community of Port Colborne. The first, released in March 2001, was withdrawn in May 2001 when calculation errors were pointed out to and/or discovered in the document. The second,

- 33 released in October 2001, was withdrawn and revised in response to comments that had been received under the Environmental Bill of Rights (the EBR) process. The third, released in March 2002, has also been the subject of the same types of controversy as its predecessors.
J. Smith Affidavit, tab 1F, Executive Summary, p. 1 of 8

103.

From the outset, it has been clear that there is a wide divergence of opinion regarding

these reports. Some reviewers have indicated that each report is too liberal, some say much too conservative, while HMQ continues to advise that each report is correct until the next report is released. It is clearly not the role of the court to adjudicate on the merits (or lack of merits) of each of these studies. The quality of and conclusions flowing from each of these MOE reports raise more questions that go directly to the merits of the action, and can most properly be addressed as common issues, likely without the significant involvement of class members.
Supplementary Affidavit of Dr. Mark Richardson, sworn April 8, 2002 (the Richardson Supplementary Affidavit), Plaintiffs Supplementary Motion record, tab 2A, p. 25 J. Smith Affidavit, tab 1F, Executive Summary Conard Affidavit, tab 1G

Allegations against the Region 104. The Medical Officer of Health for Niagara (the MOH) is an employee of the Region.

As a result, the Region is liable for the acts of the MOH.


Statement of Claim, para. 49 Kaufmann Affidavit, para. 12

105.

The MOH has numerous statutory responsibilities to class members pursuant to the

Health Protection and Promotion Act and related statutes and regulations. The MOH knew or ought to have known that a lack of sufficient care on the part of the MOH would cause damage

- 34 to class members. As a result, a duty of care was owed to the class by the MOH. The nature and extent of that duty of care is a common issue.
Statement of Claim, para. 50 Kaufmann Affidavit, paras. 12-16, 19-27

106.

For many years, the MOH knew or ought to have known of the release of contaminants

and other activities at the Inco Refinery, that were causing widespread damage to class members' property and health.
Statement of Claim, para. 51 Kaufmann Affidavit, paras. 1216, 19-27

107.

However, despite this knowledge, the MOH has failed to take such steps or apply such

laws, regulations and guidelines as its mandate from time to time has required in order to prevent or attempt to prevent, the extensive and severe damage caused to class members.
Kaufmann Affidavit, paras. 12-16, 19-27; see also Statement of Claim, para. 52

108.

The MOH is specifically liable to the class in negligence in that the MOH has:
(a) (b) (c) (d) (e) (f) failed to monitor or investigate the Inco Refinery in a reasonable or prudent manner; failed to warn class members of known hazardous emissions, defects and other failures at the Inco Refinery; specifically failed to warn class members that they were, and still are being exposed to high doses of the known carcinogen nickel oxide; failed to obtain, in a timely fashion or at all, adequate information or advice in order to rectify known defects and failures at the Inco Refinery; failed to conduct or to cause to be conducted, accurate and complete studies of the impacts of the Inco Refinery, in a timely fashion or at all; and failed to apply or enforce the Health Protection and Promotion Act, R.S.O. 1990, c. H.7.
Kaufmann Affidavit, paras. 1216, 19-27; see also Statement of Claim, para. 53

109.

All of these issues can be resolved at a common issues trial without the involvement of

class members, or at the very least, without the significant involvement of class members.

- 35 110. In addition, the MOH has repeatedly advised class members that emissions from the Inco

Refinery have never posed any risk to human health. The MOH ought to have known that these statements were, in fact incorrect or inaccurate. Consequently, the MOH is also liable to the class for losses and damages incurred as a result of these representations.
Statement of Claim, para. 54 Kaufmann Affidavit, paras. 1216, 19-27

111.

These statements include, but are not limited to statements made in and through

numerous scientific reports prepared by, in conjunction with or for the MOH, that were inadequately or improperly conducted, and that are seriously flawed and misleading as a result. Whether these statements were misrepresentations is a common issue that can be resolved without the involvement of the class.
Statement of Claim, para. 55 Kaufmann Affidavit, paras. 1217, 19-27

112.

The statements also include, but are not limited to statements intended to cause class

members to believe that they were being exposed to nickel or other non-carcinogenic substances, and not the carcinogen nickel oxide. Whether these statements were misrepresentations is a

common issue that can be resolved without the involvement of the class.
Statement of Claim, para. 56 Kaufmann Affidavit, paras. 1216, 1927

Allegations against the City 113. In recent years, there are numerous class members who have approached the City and

obtained approvals and building permits for residential housing projects in Port Colborne. These developments were undertaken before the spring of 2000, while the public was unaware of the

- 36 elevated levels of contamination in Port Colborne.


Kaufmann Affidavit, para. 36

114.

At the same time, since at least 1994, the City itself was aware of high levels of

contamination in and around Port Colborne caused by Inco. However, the City proceeded to grant approvals, provide zoning and issue building permits for lands as part of its normal operations, with the knowledge that lands were compromised.
Transcript of the cross-examination of Charles Miller, April 30, 2002, page 23, question 76, page 49, questions 151 and 152 Kaufmann Affidavit, para. 37

115.

After the public announcement in 2000 that these areas were contaminated, sales of these

lands were not possible, or were only possible at greatly reduced prices. Had these class members been informed of what the actual levels of contamination were, building at these sites would not have taken place.
Kaufmann Affidavit, para. 38

116.

Furthermore, by allowing construction to occur, class members were also exposed to

contamination both outside and inside that, had the City advised class members of its knowledge, class members would not have been exposed to these risks.
Transcript of the cross-examination of Wilfred Pearson, April 24, 2002, page 27, line 5, question 97

117.

As well, by allowing class members to continue to use facilities such as public parks and

playgrounds, class members have also been exposed to contamination, that had the City advised class members of its knowledge, then class members would not have been exposed to these risks.
Transcript of the cross-examination of Wilfred Pearson, April 24, 2002, page 26, line 11, question 93

- 37 118. The alleged knowledge of and subsequent conduct by the City can also be resolved at a

common issues trial without the involvement of class members, or at the very least, without the significant involvement of class members. The class proceeding as the preferable procedure 119. From the outset, it has been clear that a wide variety of experts would be required in

order to address issues common to the claims of the class. Consequently, in order to advance this action and ensure that the interests of class members are properly protected, the plaintiff has retained numerous experts from various disciplines. These experts include:
(a) Dr. Mark Richardson Dr. Richardson is the former Head of Health Canada's Air and Waste Section, the federal government department that analyzes substances identified as potentially toxic under the Canadian Environmental Protection Act. He now works in private practice as a human health risk assessor. He is routinely retained to conduct community wide risk assessments and to provide other risk assessment services to the Government of Canada, provincial governments (including the Government of Ontario) and industry. His recent work includes human health risk assessments for Canadian soldiers stationed in Croatia and Kosovo; the assessment of human and ecological risks posed by what is considered to be the worst-ever mine tailings disaster in Europe (a spill that affected approximately 40 km of the Rio Agrio and Rio Guadiamar in Spain); human health risk assessments on behalf of provincial regulators in Wawa, Ont. and Yellowknife N.W.T. related to historic refinery operations in those communities; and participating on behalf of the Government of Canada in the peer review and recommendation of improvements to the human health risk assessment for the Sydney Tar Ponds, Nova Scotia. (b) Dr. Thomas Burnett Dr. Burnett holds his Ph.D. in chemical engineering. He was employed by Inco Limited for 28 years. He was the former Director of Environmental Affairs for Inco worldwide. He is familiar with almost every aspect of nickel mining and refining practices, and in particular with all of Incos operations worldwide, including Port Colborne. (b) Dr. Ernest Mastromatteo Dr. Mastromatteo is trained as a medical doctor and as an epidemiologist. He is the former Chair of the Ontario Medical Associations Committee on Public Health. He is also the former Chair of the Ontario Medical Associations Occupational Health Committee. As well, for a number of years he was the head of Incos Occupational and Environmental Health Division. In this capacity he personally directed a 50,000 plus worker study that became one of the major pieces of evidence that the Government

- 38
of Canada relied on in determining that the form of nickel found in Port Colborne is carcinogenic. (c) Mr. Allen Baldwin Mr. Baldwin was employed by the Ontario government from 1969 to 1996. In 1969 he and others established what (in 1971) became the Ontario Ministry of the Environments area office in Welland, Ontario. During his career with the MOE, he was the Senior Abatement Officer and then the Enforcement Officer with direct responsibility for overseeing the operation of the Inco Refinery. As a result, he personally performed dozens of inspections of the Inco Refinery, and is familiar with its operations for more than 25 years. (d) Dr. Irena Buka Dr. Buka is a senior pediatrician and Director of Canadas only Childrens Environmental Health Clinic. The clinic is part of a network of ten others located across the United States. Dr. Buka is a member of the Canadian Environmental Health Section of the International Joint Commission, and was recently appointed to represent Canada under NAFTA on the Expert Advisory Board of the Childrens Environmental Co-operative. She has an extensive background in environmental contamination issues, particularly in relation to lead. (e) Dr. Harold Hoffman Dr. Hoffman is a medical doctor who specializes in occupational health and medicine. His work in these areas relates directly to the types of hazards to which residents in Port Colborne have been exposed. He is also a Co-Director of the Childrens Environmental Health Clinic. (f) Dr. Dean Hesterberg Dr. Hesterberg is a soils scientist at North Carolina State University. He specializes in the analysis and effects of metal contamination in soils. Dr. Hesterberg has access to the United States Department of Energys Brookhaven National Laboratory on Long Island, New York, the site of the National Synchrotron Light Source where X-Ray Absorption Spectroscopy (XAS) can be performed. An x-ray beam up to one million times more powerful than those found in hospitals is used to determine the structure between atoms within soil samples. There are only approximately 50 sites in the world with this capability, the most recently constructed costing in excess of $1 billion. (g) Dr. David Pengelly Dr. Pengelly is a professor at McMaster University in Hamilton, Ontario and at the University of Toronto. He specializes (in part) in indoor air sampling and monitoring. Over the past 25 years he has conducted numerous air quality studies in residential, industrial and school settings for a wide variety of clients, including the World Health Organization. (h) Body Cote-Ore Tech Limited

- 39
Body Cote is the former Ontario Research Foundation, which has now been privatized. Body Cote is one of the largest industrial sampling and testing companies in Canada, with more than 500 employees. They have been assisting class counsel by conducting tests on both the exteriors and interiors of certain homes in Port Colborne. (i) Terraprobe Limited Terraprobe is a firm of geo-technical and environmental engineers with extensive experience in soil and soil stability issues, hydrogeological issues, and in examining and engineering the clean up of contaminated sites. With over 80 employees located in 4 offices across Ontario, they have been involved in many subsidence and environmental remediation projects over the past 25 years. They recently completed the geotechnical (soil and stability) engineering as well as the clean up of contaminated lands for the new Air Canada Centre in Toronto. (j) Pinchin Environmental Ltd. Pinchin Environmental Ltd. is one of Canada's largest environmental, health and safety specialist firms, with more than 140 employees in 21 offices across the country. Pinchin provides engineering, consulting, management, implementation and training in air emissions, occupational health and safety, environmental assessment and remediation, hazardous materials (asbestos, lead, mould etc.), indoor air quality and laboratory services. (k) Humphreys Appraisal Services Inc. Humphreys Appraisal Services Inc. have extensive experience with property valuation issues surrounding contaminated sites. Most recently they were retained in relation to the Walkerton water tragedy, where they organized the team that provided loss valuation data in relation to the approximately 6,000 properties in Walkerton. (m) Mr. Barry Lebow Mr. Lebow has over 30 years of real estate appraisal and valuation experience. He has testified many times as an expert witness in court proceedings relating to issues of contamination. Amongst many other retainers, he was one of the leading valuation experts on behalf of thousands of homeowners whose houses were contaminated by urea formaldehyde (UFI) insulation. (n) Peterson Consulting Peterson Consulting specializes in designing and then administering resolutions to complex class action claims. Peterson currently has more 1,200 employees in 38 offices and since 1980 has supported many of North Americas largest, most complicated claims and class action matters - from mass tort litigation such as administering the asbestos claim centre in the United States for 17 years (200,000 claims processed worth $5 billion U.S.), breast implant claims and national Hepatitis B and C settlements to environmental Superfund claims, construction claims, and pension benefits. Peterson has worked with populations of hundreds, to hundreds of thousands of claimants. As part of this work, they also provide pre-settlement assistance such as damage analyses, identification and location of class populations, and implementation

- 40
and management of the claims handling process from the time of the original filing through final disposition.
Kaufmann Affidavit, para. 66 Supplementary Affidavit of Wolfgang Kaufmann, sworn April 11, 2002 (the Kaufmann Supplementary Affidavit), para. 5, Plaintiffs Supplementary Motion Record, tab 3 D, pp. 65 and 86

120.

In addition to being able to provide expert witnesses and experienced legal counsel, the

plaintiff has prepared a litigation plan to allow this action to proceed in an orderly manner following certification. 121. Moreover, it is clear that there are a large number of residents in Port Colborne who wish

to come before this Honourable Court and have their rights adjudicated. More than 280 families representing more than 1,000 residents have retained plaintiffs counsel to assist them in bringing their claims before the court. This clearly indicates that there are a substantial number of prospective class members who are already actively seeking access to justice in this case.
Kaufmann Affidavit, paras. 67 and 68; See also responses to undertaking given at the cross-examination of Wolfgang Kaufmann, April 24, 2002, page 11, line 12, question 29

The evidence of Richard Lindgren 122. Richard Lindgren was a member of the Attorney General's Committee on Class Action

Reform and a member of the Task Force on the Environmental Bill of Rights. Based on Mr. Lindgren's knowledge of the purposes the CPA, his knowledge of environmental civil actions generally and his knowledge of the Port Colborne matter, this action would in his view appear to be particularly suited to being advanced as a class proceeding for the following reasons:
(a) (b) (c) There are a large number of potential plaintiffs (20,000 or more). Their claims all arise from the same or similar facts, and against the same defendants. While Inco has acknowledged some responsibility for nickel, copper and cobalt contamination in Port Colborne, there remain complex issues of liability, which are common to all of the potential plaintiffs.

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(d) (e) A small number of potential plaintiffs appear to have large damage claims but the vast majority appear to have damage claims that are more modest. Actions of this nature frequently require the expenditure of large amounts of time and money on expert witness fees and other disbursements. Furthermore, very large amounts of legal time are normally required. From his experience in environmental litigation, these types of costs make claims such as this prohibitively expensive for almost every potential plaintiff to pursue as an individual action. Actions of this nature require a level of specialization, knowledge and experience on the part of legal counsel that most potential plaintiffs almost certainly do not have access to. The likelihood of locating counsel to represent hundreds or thousands of individual claimants is low. Contingency fee arrangements as permitted under the CPA would not be available if the action was not advanced as a class proceeding. Access to the Class Proceedings Fund would not be available, nor would its protections be available if the action was not certified as a class proceeding. There are potentially hundreds, if not thousands of individual claims. Should these claims come before the Court as individual actions, the burden on the court system would be immense. The time involved if documents had to be produced and each individual litigant had to be discovered would be immense. Since this claim was launched, the scope of study and analysis by the defendants in Port Colborne has expanded considerably. For example, as a result of work done by the plaintiff, public authorities and Inco are now investigating the issue of contamination inside homes in Port Colborne for the first time. Since this claim was launched, major studies that had previously been promised (e.g. regarding health and property values) are now underway. In addition, new studies by entities other than the parties to this action have been announced. For example, as a result of awareness raised by the initiation of this action the United Steel Workers of America has announced a study of current and former Inco workers to determine what health risks they may be facing now that more information is coming to light. This claim has also been well publicized outside of Southern Ontario. As a result, it is creating a broader awareness both with the public and with industry of the issue of historic contamination, and the need to address problems such as those found in Port Colborne in a proactive manner.
Lindgren Affidavit, para. 12

(f)

(g) (h) (i)

(j) (k)

(l) (m)

(n)

- 42 Facts related to the CBRA 123. The reasons why the Community Based Risk Assessment (the CBRA) process that is

currently underway in Port Colborne cannot be considered to be a preferable, or even an adequate procedure are discussed in detail in paragraphs 197 through 212 below. However, certain facts bear noting. 124. First, many of the studies proposed under the CBRA process are still undefined and

incomplete. Major studies, such as those related to human health and property values, still do not have basic methodologies, scopes of work and protocols in place. At such time as these procedural and administrative steps are finalized, the studies themselves will then have to be conducted. Overall, the CBRA process is still unsettled, and is still at least two years away from completion with studies planned to continue at least into the year 2004.
E. Smith Affidavit, para. 17

125.

Second, the primary goal of the CBRA is to establish a remediation number or

numbers for clean-up purposes. Beyond this, the CBRA process will not be examining the past or present conduct or actions of any party, including any of the defendants to this action.
E. Smith Affidavit, para. 83 Affidavit of Paul Niewglowski, sworn April 18, 2002, (the Nieweglowski Affidavit), para. 54, Further Supplemental Motion Record of the Respondent HMQ, tab 1, p. 10

126.

Third, materials filed by the MOE in this proceeding confirm that Inco has made no

commitment to provide any form of financial compensation as a result of any studies undertaken in connection with the CBRA process. In fact, Inco itself has gone further, and on November 9, 2002, Dr. Bruce Conard of Inco advised at a public meeting concerning the CBRA process that

- 43 questions regarding compensation for injury or loss are of legal substance and since compensation is a legal issue, it will not be a part of the CBRA.
Niewglowski Affidavit, para. 52 E. Smith Affidavit, para. 84

127.

Fourth, the MOE has confirmed that the powers available to the Ministry related to the

CBRA are found in the Environmental Protection Act (the EPA) and specifically in section 17:
Where any person causes or permits the discharge of a contaminant into the natural environment, so that land, water, property, animal life, plant life, or human health or safety is injured, damaged or endangered, or is likely to be injured, damaged or endangered, the Director may order the person to, 1. 2. 3. repair the injury or damage; prevent the injury or damage; or where the discharge has damaged or endangered or is likely to damage or endanger existing water supplies, provide alternate water supplies.
Haniff Affidavit, para. 13 Nieweglowski Affidavit, para. 51

128.

As is discussed in greater detail below, the EPA does not provide the MOE with any

ability to use the CBRA to consider or enforce decisions related to issues that would be central to the class proceeding, such as claims for personal health losses, claims for property devaluation related to stigma, and claims for punitive damages. All of these matters can only be addressed through the courts.

PART III ISSUES AND ARGUMENT Introduction 129. The CPA should be given a large and liberal interpretation. Class proceedings legislation

is remedial legislation and should be interpreted in a generous way which allows fulfilment of

- 44 the three primary goals of the legislation: (a) the promotion of access to justice; (b) judicial economy; and (c) modification of behaviour of actual or potential wrongdoers. The "recognition of [an] environmental wrong" is exactly the type of complex case that the CPA was intended to address.
Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at paras. 14, 15 [tab 2]

130.

The CPA is essentially a procedural statute, rather than one that affects the substantive

law. The first step required by the CPA is the certification motion, which under section 2(3) of the CPA, should be brought within 90 days after the delivery of the statement of defence. If certification is granted, section 11 of the CPA provides that in general: (a) the common issues are determined together; and (b) individual issues that require the participation of individual class members are determined individually. 131. In Hollick v. Toronto, the Supreme Court of Canada refined the test for "common issues".

The Court held that an issue is common "where its resolution is necessary to the resolution of each class member's claim". Further, an issue will be "common" in the requisite sense where the issue is a "substantial ingredient" of each of the class member's claims. The common issues raised by the claims of the class in this case meet this test.
Hollick v. Toronto (2001) 205 D.L.R. (4th) 19 (S.C.C.) at para. 18 [tab 2]

132.

In Rumley v. B.C., a companion decision to Hollick, the Supreme Court of Canada also

held that it was proper to "tailor" the allegations in an action to make them amenable to class action treatment. The plaintiff may allege systemic governmental or corporate negligence (as in the instant case) to avoid some of the complexities arising from individual issues. The Court stated:

- 45
As Mackenzie J.A. noted, the respondents' argument is based on the allegation of "systemic negligence" - the failure to have in place management and operations procedures that would reasonably prevented abuse. The respondents assert, for example, that JHS did not have policies in place to deal with abuse, and that JHS acted negligently by placing all residential students in one dormitory in 1978. These are actions (or omissions) whose reasonability can be determined without reference to the circumstances of any individual class member. It is true that the respondents' election to limit their allegations to systemic negligence may make the individual component of the proceedings more difficult; clearly it would be easier for any given complainant to show causation if the established breach were that JHS had failed to address her own complaint of abuse (an individualized breach) than it would be if, for example, the established breach were that JHS had as a general matter failed to respond adequately to some complaints (a "systemic" breach). As Mackenzie J.A. wrote, however, the respondents "are entitled to restrict the grounds of negligence they wish to advance to make the case more amenable to class proceedings if they choose to do so."
Rumley v. B.C. (2001), 205 D.L.R. (4th) 39 (S.C.C.) at para. 30 [tab 3]

133.

In Carom v. Bre-X, the Ontario Court of Appeal held that the Ontario Legislature made a

conscious attempt "to avoid setting the bar for certification too high". It also referred to "the low bar set by the Legislature and judiciary for common issues".
Carom v. Bre-X Minerals Ltd. (2000), 196 D.L.R. (4th) 344 (C.A.) at paras. 40 42 [tab 5]

134.

Each class member lived in the vicinity of the Inco Refinery and allegedly suffered

damages as a result of Inco's emission of the contaminants and their exposure to those contaminants. Almost identical evidence would be required to establish the general level and duration of the contamination, the scientific basis and causal connection, if any, between an individual's exposure to the contamination and the type of injuries allegedly suffered, and the defendants' liability. 135. The common issues proposed by the plaintiff arise out of the common course of conduct

of the defendants and are substantial ingredients of the class members' cases. The construction of the Inco Refinery and its operational and safety features, the development of training programs, the experience of Inco's employees, and the knowledge and imputed knowledge of

- 46 Inco as to whether it was emitting contaminants beyond what was acceptable, can all be effectively resolved at the common issues trial. The issues regarding the knowledge and

methods of HMQ, the City and the Region in regulating (or not regulating) Inco's emissions can also be disposed of at the common issues trial. 136. To this extent, a class proceeding in the instant case will avoid duplication of judicial

effort, and will prevent separate actions from reaching inconsistent results with similar, if not identical, facts. 137. If the trial judge at the common issues trial determines Inco was in fact the source of the

contaminants, that Inco conceived and operated the Inco Refinery in a negligent manner and that a prescribed level of each of the contaminants will cause harm to humans and the natural environment, then each class member will be relieved of the very significant burden of proving these facts at the hearing of his or her own individual claim. This will greatly reduce the work to be done at the individual hearings. If certification is granted, the subsequent individual hearings will be substantially simplified. 138. In their opposition to this motion, the defendants have failed to recognize that the

proposed common issues are essential elements of every class members case and how their resolution would advance those cases. In that regard, they have lost sight of the essential question at this stage of the proceeding:
While the issues of injury and causation will have to be litigated in individual proceedings following resolution of the common issue . . . in my view the individual issues will be a relatively minor aspect of the case. There is no dispute that abuse occurred at the school. The essential question is whether the school should have prevented the abuse or responded to it differently.
Rumley v. B.C. (2001), 2001 D.L.R. (4th) 39 (S.C.C) at para. 36 [tab 3]

- 47

Counsel for Dr. Wilson argued that the representative plaintiffs have failed to identify common issues and in fact, are unable to do so because this is a medical negligence action. They submit that in medical negligence actions liability turns on the medical presentation of each patient . . . In my view, this argument is far too broad. Unlike typical medical negligence cases this action concerns allegations of a general practice over a number of years falling below acceptable standards. Those general allegations can be pulled out and tried separately, to the benefit of all parties.
Anderson v. Wilson (1999), 175 D.L.R. (4th) 409 (Ont. C.A.) at paras. 33 34 [tab 4]

General principles regarding certification 139. In order for an action to be certified as a class proceeding, the criteria in section 5(1) of

the CPA must be met:


5(1) (a) (b) (c) (d) (e) The court shall certify a class proceeding if, the pleadings discloses a cause of action; there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant; the claims or defences of the class members raise common issues; a class proceeding would be the preferable procedure for the resolution of the common issues; and there is a representative plaintiff or defendant who, would fairly and adequately represent the interests of the class, (i) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and does not have, on the common issues for the class, an interest in conflict with the interests of the other class members.

(ii)

Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1)

Each of these criteria is addressed below.

- 48 Issue 1: 140. Cause of action

The action was commenced on March 26, 2001. The defendants all sought extensive Extensive

documentary and other particulars after the delivery of the statement of claim.

particulars were provided and an amended statement of claim was delivered. The defendants then brought a number of rule 21 motions on various points of law. Portions of the amended statement of claim were struck with leave to amend. A fresh as amended statement of claim was then delivered. The defendants have brought no further rule 21 motions. 141. There is no doubt that the fresh as amended statement of claim, assuming the facts to be

true, and taken as a whole, discloses a cause of action. That is all that is required at this stage.
Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at para. 16 [tab 2]

142.

The plaintiff has met the section 5(1)(a) requirement of the CPA: the pleadings disclose a

cause of action.

Issue 2: 143. 144.

Identifiable class

The CPA requires that there be an identifiable class of two or more persons. The correct test, as enunciated by the Supreme Court of Canada in Hollick, is whether the

plaintiff has defined the class by reference to objective criteria such that a given person can be determined to be a member of the class without reference to the merits of the action. The class must be bounded in the sense that it is not unlimited.
Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at para. 17 [tab 2]

145.

It is submitted that the proposed class in this case is defined by objective criteria:
(a) with respect to the Owner-Occupier Class, each member is required to have owned or occupied property within a defined geographical area within a circumscribed time period, which can be verified from municipal tax records and/or voting lists;

- 49
(b) (c) with respect to the Student Class, each member of the class can be verified by attendance records maintained by the School Board in question; and with respect to the Family Class, membership is ascertainable in the same way that it would ordinarily be ascertained in any tort claim where a section 61 Family Law Act claim is asserted. There is ample authority as to what must be proven and who can assert such a claim.

146.

In Rumley, the Supreme Court of Canada upheld a decision of the B.C. Court of Appeal

certifying a class proceeding by former students of a residential school for the deaf. In Rumley, the B.C. Court of Appeal defined the class as:
Students at the Jericho School between 1950 and 1992 who reside in British Columbia and claim to have suffered injury, loss or damage as a result of misconduct of a sexual nature occurring at the school.
Rumley v. B.C. (2001), 205 D.L.R. (4th) 39 (S.C.C.) at para. 21 [tab 3]

147.

In Hollick, the Supreme Court of Canada expressly approved a class definition based on

objective geographic and temporal boundaries, in the same manner as is proposed here.
Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at para. 17 [tab 2]

148.

The fact that the plaintiff is not able to provide a list of class members at the time of the

certification hearing is clearly not a bar to certification based on section 6 of the CPA:
The fact that it would be difficult at the certification stage to list by name every member of the class is not fatal. The Act contemplates situations where it may be difficult to identify by name precisely every member of the class...It is sufficient if the class is identified in terms that would allow one to determine on an obstructive basis whether or not any given individual fits within it. In my view, that test is met by the proposed definition here.
Robertson v. Thomson Corp (1999), 43 O.R. (3d) 161 (Gen. Div.) at p. 169 [tab 20]

149.

There is also no requirement that all members of the class have an equivalent likelihood

of success. Defining class membership based on the merits of the case would be improper. The defining aspect of class membership is an interest in the resolution of the proposed common issues.
Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at paras. 17, 20- 21 [tab 2]

- 50 150. class. Issue 3: Common Issues The plaintiff has met the section 5(1)(b) requirement of the CPA: there is an identifiable

Section 1 of the CPA defines common issues as:


(d) (e) Common, but not necessarily identical issues of fact, or Common, but not necessarily identical issues of law that arise from common, but not necessarily identical facts.
Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 1

151.

The underlying question is whether allowing the suit to proceed as a representative one

will avoid duplication of fact finding or legal analysis.


Western Canadian Shopping Centres v. Dutton (2001), 201 D.L.R. (4th) 385 (S.C.C.) at para. 39 [tab 1]

152.
A.

The common issues in this action include:


GENERAL (i) (ii) (iii) Were the contaminants arsenic, chlorine, cobalt, copper, lead, nickel and zinc (the Contaminants of Concern) discharged by Inco? How widespread is the distribution of the Contaminants of Concern? At what level do the Contaminants of Concern pose risks to the natural environment or to human health, or both?

B.

INCO (i) (ii) (iii) (iv) (v) Did Inco owe a duty of care to the class to prevent the ongoing discharge of the Contaminants of Concern, and if so, what duty was owed? What was the appropriate standard of care that Inco had to meet with respect to preventing the ongoing discharge of the Contaminants of Concern? Did Inco breach the standard of care referred to in (ii) above? Did the ongoing discharge of the Contaminants of Concern by Inco amount to a public nuisance? Did the ongoing discharge of the Contaminants of Concern by Inco amount to a trespass?

- 51
(vi) Is Inco strictly liable to the class for ongoing discharge of Contaminants of Concern as a result of failure to prevent the escape of dangerous substances (Rylands v. Fletcher)?

C.

ALL OTHER DEFENDANTS (the Regulators) (i) Did the Regulators owe a duty of care to the class to prevent the ongoing discharge of the Contaminants of Concern by Inco, and if so, what duty was owed? What was the appropriate standard of care that Regulators had to meet with respect to preventing the ongoing discharge of the Contaminants of Concern? Did the Regulators breach the standard of care referred to in (ii) above? Did the Regulators make negligent misrepresentations with respect to: (a) the emissions from the Inco Refinery have never posed any risk to human health; and (b) the class members were being exposed to nickel or other non-carcinogenic substances and not the carcinogen nickel oxide?

(ii) (iii) (iv)

D.

ALL DEFENDANTS
(i)

Does the defendants conduct justify an award of punitive damages to the class, and if so, what amount of punitive damages is appropriate?

153.

The common issues proposed by the plaintiff are substantial ingredients of the plaintiff's

and class members' cases and are consistent in principle with the definition of the common issues approved by the courts in Rumley, Hollick and Bre-X.
Rumley v. B.C. (2001), 2050 D.L.R. (4th) 39 (S.C.C.) at para. 34 [tab 3] Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C) at para. 18 [tab 2] Carom v. Bre-X Minerals Ltd. (2000), 196 D.L.R. (4th) 344 (Ont. C.A.) at para. 27 [tab 5]

154.

The determination of the common issues will also eliminate the need for each class This will

member to prove these elements at the hearing of his or her individual claim. substantially reduce the work to be done at the individual hearings. 155.

It is submitted that this court should not attempt to weigh the ultimate merits of the

proposed common issues, but should merely ascertain whether the common questions raise

- 52 triable issues. The scientific issues, the general causation issues and the duty and standard of care issues are obviously common to all class members and have been accepted as such in many certified class actions from across Canada.
Michael A. Eizenga et al., Class Actions Law and Practice (Toronto: Butterworths, 1999), Tables 21-32 [tab 30] Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 (S.C.J.) at paras. 101-107 [tab 21] Anderson v. Wilson (1999), 175 D.L.R. (4th) 409 (Ont. C.A.) at paras 20 23 [tab 4] Harrington v. Dow Corning Corp. (2000), 193 D.L.R. (4th) 67 (B.C.C.A.) at para. 12 [tab 10]

156.

The government defendants (HMQ, the Region and the City) all appear to deny that they

owed a duty of care to the class. This is clearly a common issue that can be resolved to the benefit of all in a class proceeding.
Endean v. Canadian Red Cross Society (1997), 148 D.L.R. (4th) 158 (B.C.S.C.) at p. 167 [tab 31]

157.

In addition, all of the defendants deny that they breached the applicable standard of care,

thus creating another set of common issues that can be expeditiously resolved through a class proceeding. 158. It is important to recognize that in Rumley, the Supreme Court of Canada rejected the

argument that the fact that the relevant standard of care likely varied over time (1950 1992) was a reason to deny certification. The Court cited a number of decisions that allowed certification where the standard of care applicable would have varied during the claim period. The Court stated:
That the standard of care may have varied over the relevant time period simply means that the Court may find it necessary to provide a nuanced answer to the common question. I further note that the Class Proceedings Act contemplates the possibility of sub-classes and that the Court may amend the certification order at any time In my view the Class Proceedings Act provides the Court with

- 53
ample flexibility to deal with limited differentiation amongst the class members as and if such differentiation becomes evident.
Rumley v. B.C. (2001), 2050 D.L.R. (4th) 39 (S.C.C.) at para. 32 [tab 3]

159.

Although there may have been changes in the state of knowledge over the relevant time

period, these changes do not alter the form of the common issues. The only possible impact on the proceeding is that it is conceivable that there may be a time-sensitive answer to the common questions. As is clear from the above authorities, courts have routinely certified class

proceedings in which the duty of care and standard of care may have changed over the course of the material period. 160. The list of common issues can be further refined as the litigation moves forward to the

extent that such refinement is required to facilitate the trial of the common issues.
Robertson v. Thomson Corp. (1999), 43 O.R. (3d) 161 (Gen. Div.) at p. 173 [tab 20]

Common issues The evidentiary record 161. The plaintiff must establish an evidentiary basis for certification apart from the basic

requirement (discussed above) that the pleadings disclose a cause of action.


Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at paras. 16, 25 [tab 2]

162.

This evidentiary burden can be met by showing that many individuals, in addition to the

plaintiff, are concerned about the matter. In Hollick, the Supreme Court of Canada held that the burden was met by evidence that a number of people had complained about noise and physical emissions from the landfill. This provided sufficient evidence of commonality. It was not necessary to show that every person who was a member of a proposed class had complained, or that their complaints were identical. Sufficient evidence (with respect to complaints, concerns raised by class members and retainers of legal counsel) has been filed in this case.
Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at paras. 21, 26 [tab 2]

- 54 163. The plaintiff has met the test in section 5(1)(c) of the CPA: the claims of the class raise

common issues. Issue 4: 164. Individual issues

A number of actions have been certified as class proceedings where the issue of damages

and causation will require individual hearings.


Anderson v. Wilson (1999), 175 D.L.R. (4th) 409 (Ont. C.A.) [tab 4] Carom v. Bre-X Minerals Ltd. (2000), 196 D.L.R. (4th) 344 (Ont. C.A.) [tab 5] Bendall v. McGhan Medical Corp. (1993), 14 O.R. (3d) 734 (Gen. Div.) [tab 24] Wilson v. Servier Canada Inc. (2002), 50 O.R. (3d) 219 (S.C.J.) [tab 21]

165.

The claims of the plaintiff and the proposed class in this matter are substantially systemic

in nature. The central issues in the action will be tied to the nature and extent of the conduct of the defendants and whether various legal duties were breached. Those issues are all amenable to resolution in a class proceeding. In Rumley (where a large number of individual class members had been impacted in a wide variety of ways as a result of physical, sexual and emotional abuse over a period of 42 years), the Supreme Court of Canada certified the action as a class proceeding and held that individual issues such as causation and damages were a relatively minor aspect of the case in terms of both complexity and duration.
Rumley v. B.C. (2001), 205 D.L.R. (4th) 39 (S.C.C.) at para. 36 [tab 3]

166.

Predominance is not a feature of the CPA. It is therefore important to recognize that the

concern about the balance between common and individual issues does not carry the same weight in Ontario as it does under the B.C. Class Proceedings Act (under which Rumley was in fact certified) and in the United States (where predominance of the common issues is a mandatory requirement). However, even applying the B.C. test, in Endean the court stated:
In my view, the intention behind these provisions of the Act is to put more emphasis on the goal of access to justice than on that of judicial economy. That

- 55
was the approach taken in Harrington, supra, where a class proceeding was certified despite the many unresolved, difficult, individual issues associated with establishing claims arising out of allegedly defective breast implants. Accordingly, the undoubted predominance of individual issues here is not in itself fatal to the application.
Endean v. Canadian Red Cross Society (1997), 148 D.L.R. (4th) 158 (B.C.S.C.) at p. 167 [tab 31]

167.

In this case the individual issues are not a bar to certification. Individual issues machinery in the CPA

Issue 5: 168.

The CPA also distinguishes between individual issues that require the participation of

individual class members (section 25) and individual issues that do not require their participation (section 24). 169. In general, the class action mechanism is designed to minimize individual participation in

the proceeding. The CPA repeatedly emphasizes that when dealing with individual issues the court shall minimize the burden on class members (section 24(5)) or shall choose the least expensive and most expeditious method of determining the issues (section 25(3)). 170. For example, the Supreme Court of Canada affirmed a class action damage assessment

done entirely without any participation of class members. In a recent Quebec case, the trial judge had assessed the damages to class members at a psychiatric facility who had suffered as a result of an illegal strike at $1,750 per class member, without viva voce evidence from any of the class members, and without the class members medical records. The Supreme Court of Canada upheld the award of damages made by the trial judge.
Quebec (Public Curator) v. Syndicat national des employs de l'hopital St-Ferdinand (1996), 138 D.L.R. (4th) 577 (S.C.C.) [tab 32]

171.

It is also important to remember that the CPA is not directed solely to the resolution of

common issues, but also to the simplification and management of any individual issues that

- 56 remain after the common issues have been decided. These sophisticated litigation management tools will be entirely lost if the action is not certified. As the Ontario Court of Appeal stated in the first certification decision to reach that court:
In my view, it seems sensible with this number of potential plaintiffs and the similarities that are evident in their claims, that any potential efficiency in advancement of their claims through the flexibility provided by the CPA should, where reasonable, be utilized.
Anderson v. Wilson (1999), 175 D.L.R. (4th) 409 (Ont. C.A.) at p. 420 [tab 4]

172.

The individual issues facing the court in this action are no more complicated than those

facing the court in any of the certified class proceedings referred to above are. In particular, the presence of individual causation and damages issues has not, and does not prevent certification. However, even in the absence of helpful precedents, the challenges associated with establishing causation do not make individual litigation preferable to class litigation. The same individual causation and damages issues will be faced in both litigation structures. The Supreme Court of Canada has stated:
Causation need not be determined with scientific precision. It is as stated by Lord Salmon in Alphacell Ltd. v. Woodward... ...essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory... The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced...It is not therefore essential that the medical experts provide a firm opinion supporting the plaintiffs theory of causation. Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by law.
Snell v. Farrell, [1990] 2 S.C.R. 311 at pp. 328-330 Athey v. Leonati, [1996] 3 S.C.R. 458 at p. 467

173.

Further, the fact that damages require individual assessment is not a bar to certification.
Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 6(a)

- 57 174. Class members may have had other health problems. However, that is the case in all

personal injury litigation, and was certainly the case in Endean where all class members had received a blood transfusion for some underlying reason. Like all litigation, whether class or individual, class members will only be able to claim for the damages that are causally related to the defendants breaches of duty. However, that does not create a reason to refuse certification. These types of issues are dealt with routinely by this court. 175. This court has ample tools to deal with the individual issues in this case. Preferable procedure

Issue 6: 176.

By far the most contentious aspect of this certification motion is likely to be the question

of whether a class action is the preferable procedure for the resolution of the common issues. 177. The preferable procedure factor concerns common issues, not the individual issues,

though both sets of issues must be considered. Section 5(1)(d) states:


5(1) ... The court shall certify a class proceeding . . . if, (d) a class proceeding would be the preferable procedure for the resolution of the common issues; (emphasis added)

178.

The preferability analysis first requires the court to consider the extent to which the

proposed proceeding will achieve the three primary goals of the CPA; these being improved access to justice, judicial economy and modification of behaviour.
Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at para. 27 [tab 2]

179.

In Hollick, the Supreme Court of Canada indicated that the inquiry as to preferable

procedure also requires the consideration of whether or not the class proceeding would be a fair,

- 58 efficient and manageable method of advancing the claim, and whether the class proceeding would be preferable in the sense of preferable to other procedures that are available.
Hollick v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at paras. 29-31 [tab 2] Rumley v. B.C. (2001), 205 D.L.R. (4th) 39 (S.C.C.) at paras. 35, 38 [tab 3]

180.

It is submitted that the onus is on the defendants to show there is a better way to resolve

the common issues than by a class proceeding:


In order for counsel to be persuasive in developing a submission that another procedure is to be preferred, it is essential that the defendant provide the court with a concrete, workable, alternative litigation proposal which demonstrates that the plaintiffs will not be deprived of their day in court. (emphasis added)
Per Winkler J., in Managing the Class Action Lawsuit: The Judicial Perspective, Canadian Institute Conference on Class Actions, (October 4, 1996) at p. 11

181.

When assessing whether the class proceeding is the preferable procedure, the court must

compare the class proceeding to alternative procedures in the courts (e.g. such as individual actions, test cases and joinder) and to alternative procedures outside of the courts (e.g. such as the proposed CBRA process in this case). Both options are discussed below. Alternative procedures in the courts 182. There are no other means of resolving the claims that would be more practical or more

efficient. Individual actions are not a viable option here. Individual actions would be far less practical and far less efficient than a class proceeding would be. If individual actions were required, each class member who brought an individual action will have to litigate, and prove the general scope and duration of the contamination, the causal connection, if any, between the contamination and the injuries suffered, the extent of the duty of care and the standard of care, the conditions at the Inco Refinery and the oversight (or lack thereof) which was performed by the regulator defendants.

- 59 183. In addition, all of the expert scientific chemical, medical and other technical evidence

would have to be repeated. This gives rise to the very real potential that individual actions by class members (who were all Port Colborne residents at the same time and had to face the same circumstances) would yield inconsistent findings of fact and law on these issues.
Rumley v. B.C. (2001), 205 D.L.R. (4th) 39 (S.C.C.) 39 at para. 38 [tab 3]

184.

Access to justice is the overriding consideration in assessing preferability in this context.

Access to justice is achieved in a class proceeding where there are numerous individual claims that may be too small to justify proceeding individually.
Anderson v. Wilson (1999), 175 D.L.R. (4th) 409 (Ont. C.A.) at para. 18 [tab 4]

185.

The Ontario Law Reform Commission, in its Report on Class Actions (1982), reviewed

the linkage between class actions and access to the courts. In its conclusions, the Commission wrote:
The Commission is of the view that many claims are not individually litigated, not because they are lacking in merit or unimportant to the potential claimant, but because of economic, social and psychological barriers. We believe that class actions can help to overcome such barriers and, by providing increased access to the Courts, may perform an important function in society. Quite clearly, effective access to justice is a pre-condition to the exercise of all other legal rights.

186.

The uncontradicted evidence filed by the plaintiff is that the failure to certify this action

as a class proceeding would effectively deny access to the courts through individual proceedings for many potential claimants because of their financial circumstances and the complexity of the claims that must be asserted. 187. Where the defendants are denying liability, the common issues are complex, and the costs

of proving the common issues are an overwhelming deterrent to individual claims. Only a class

- 60 proceeding will put the parties on a more even footing. The cost of experts alone is prohibitive. Absent a class proceeding, "who could individually afford this type of litigation?"
Bendall v. McGhan Medical Corp. (1993), 14 O.R. (3d) 734 (Gen. Div.) at p. 744 [tab 24]

188.

It is also necessary to emphasize the particular vulnerability of the class members in this

case. The individual class members, especially those in the East Side Community, are not wealthy individuals. They likely have little interest in or experience with individual litigation, especially complex toxic tort litigation. Litigation is always a difficult process but it is clear that it would be extraordinarily so for the class members here. Allowing the action to proceed as a class proceeding will mitigate the difficulties that would be faced by class members in this case.
Rumley v. B.C. (2001), 205 D.L.R. (4th) 39 (S.C.C.) at para. 39 [tab 3] Bendall v. McGhan Medical Corp. (1993), 14 O.R. (3d) 734 (Gen. Div.) at p. 744 [tab 24]

189.

The economic and legal barriers faced by class members, both to investigate the action

and bring it to a successful conclusion, favours a common, collective process to explain and deal with the significance of those facts and to elicit the relevant evidence. A group action will assist in marshalling the expertise required to assist individual class members in proving their case effectively. No individual plaintiff could possibly afford to litigate their claim in the face of determined and solvent defendants when the claim involves, as it does here, complex issues of a scientific, chemical and medical nature.
Rumley v. B.C. (2001), 205 D.L.R. (4th) 39 (S.C.C.) at para. 39 [tab 3]

190.

Depriving plaintiffs of the ability to make use of contingency fee arrangements as

provided for under sections 32 and 33 of the CPA is an important consideration.

- 61 191. In terms of judicial economy, there is no purpose served by requiring each class member

to advance a separate challenge to the defendants conduct. The determination of the issues that are common to all class members should be made in one action. There is no point in the court assessing these issues more than once.
Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 (S.C.J.) at para. 124 [tab 24]

192.

Judicial economy is also served given that class members will not need to participate in

the initial discovery process or the trial of the common issues referred to at paragraph 152. If the defendants are successful, the court and the class members will also be saved from addressing these procedures.
Nantais v. Telectronics Proprietary (Canada) Ltd. (1995), 25 O.R. (3d) 331 (Gen. Div.) at pp. 339-340 [tab 23] Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 (S.C.J.) at para. 125 [tab 21]

193.

In terms of behaviour modification, the Report of the Attorney General's Advisory

Committee on Class Action Reform stated:


Finally, the presence of effective remedies of any sort inevitably must contribute to a sharper sense of obligation to the public by those whose actions affect large numbers of people. This is the case whether the obligation is owed by an aircraft manufacturer, a pharmaceutical company, a financial institution or even a government. An effective class action procedure has the potential to contribute to improved compliance with such obligations.
Attorney General's Advisory Committee on Class Action Reform, Report of the Attorney Generals Advisory Committee on Class Action Reform, (February 1990) at p. 17

194.

The court should ensure that companies who operate large refineries in close proximity to

residential areas, and whose conduct falls below acceptable standards, will be required to account to the community for damages flowing from their failings if they are negligent. Similarly, government regulators and public servants should also be held accountable if their

- 62 conduct falls below prescribed standards. Without a class action, none of these defendants will ever be called to account for their harmful conduct.
Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 (S.C.J.) at para. 126 [tab 21]

195.

The administration of the class proceeding will not present greater difficulties than those

likely to be experienced if relief were sought by other means. All of the same issues would need to be considered in any individual litigation, but in a less controlled procedural environment. The problems faced are no more daunting that those faced in Endean, Servier, Bendall, Nantais or Harrington. 196. In sum, other means of resolving the claims through some type of alternative court

procedure would be much less practical and much less efficient. Individual litigation in any form affords no advantages over a class proceeding. To the contrary, through a class proceeding a number of benefits are obtained, making it the preferable procedure:
(a) (b) (c) (d) (e) (f) (g) (h) (i) (j) whatever limitation period is found to be applicable to the claim is tolled for the entire class; a formal notice program is created which will alert all interested persons to the status of the litigation; the class is able to attract more sophisticated counsel through the aggregation of potential damages and the availability of contingency fee arrangements; a class proceeding prevents the defendant from creating procedural obstacles and hurdles that individual litigants may not have the resources to clear; class members are given the ability to apply to participate in the litigation if desired; the action is case managed by a single judge; the court is given a number of powers designed to protect the interests of absent class members; class members are protected from any adverse cost award in relation to the common issues stage of the proceeding; in terms of the resolution of any remaining individual issues, a class proceeding allows the court to create simplified structures and procedures; and through the operation of statute, any order or settlement will accrue to the benefit of the entire class, without the necessity of resorting to principles of estoppel or abuse of process.

- 63
Wilson v. Servier Canada Inc. (2002), 50 O.R. (3d) 219 (S.C.J.) at para. 116 [tab 21]

The CBRA as an alternative procedure 197. Significant emphasis has been placed by the defendants on the suggestion that the Port

Colborne Community Based Risk Assessment (CBRA) process is the preferable procedure. The following facts are clear from the evidence before the court:
(a) (b) (c) at this time the CBRA is undefined in many areas, with numerous protocols, studies and steps still being developed; the CBRA will not assess, let alone resolve, any of the common issues raised in the class proceeding; and the CBRA does not have a mechanism to provide compensation to any member of the class.

198.

Given these facts, it is clear that the CBRA is not the preferable procedure. The problems

with the CBRA are discussed in more detail below. 199. First, as a matter of law, in order to be preferable, any alternative procedure put forward

by the defendants must be definite rather than contingent. There must be an alternate claims procedure in place and available to class members at the time of the certification motion. In particular, the substantive and procedural features of any proposed alternative should be sufficiently spelled out at the time of the certification motion so that the court can compare the available alternatives as required by the statute. (emphasis added)
Brimner v. Via Rail Canada Inc. (2000), 47 O.R. (3d) 793 (Div. Ct.) at pp. 794 5 [tab 14] Brimner v. Via Rail Canada Inc., [2001] O.J. No. 3684 (Div. Ct.) at paras. 812 [tab 15]

200.

If the alternative procedure is not definite, that procedure cannot be preferable. It should

also be noted that the level of commitment and degree of flexibility of the proponent of an alternative are "quite irrelevant", since it is the actual features of the alternative procedure at the time of certification that are pertinent.

- 64
Brimner v. Via Rail Canada Inc. (2000), 47 O.R. (3d) 793 (Div. Ct.) at pp. 794 5 [tab 14] Brimner v. Via Rail Canada Inc., [2001] O.J. No. 3684 (Div. Ct.) at paras. 812 [tab 15]

201.

In upholding certification of the class proceeding, the Divisional Court in Brimner stated:
There was no alternative claims procedure in place and available to class members at the time of the certification motion. Section 5(1)(d) requires the certification Judge to compare a class proceeding to alternatives that are available to the class members at the time of the certification motion. That was not the case here.
Brimner v. Via Rail Canada Inc., [2001] O.J. No. 3684 (Div. Ct.) at paras. 812 [tab 15]

202.

In this case, many of the studies proposed under the CBRA process are still undefined

and incomplete. Major studies, such as those related to human health and property values, still do not even have basic methodologies and protocols in place. These studies are still in a state of flux, and are clearly not definite but contingent. Most significantly, as discussed in

paragraphs 206 and 207 below, no financial compensation mechanism at all has been proposed. Consequently, the CBRA process does not meet the level of certainty of the alternative required in Brimner. The Brimner alternative, though far more developed than the CBRA, was in fact

rejected by both the motions court and the Divisional Court as too uncertain to be considered as an alternative.
Brimner v. Via Rail Canada Inc., [2001] O.J. No. 3684 (Div. Ct.) at paras. 8, 10 [tab 15] Brimner v. Via Rail Canada Inc., [2001] O.J. No. 3683 (Div. Ct.) at para. 12 [tab 15]

203.

Second, the CBRA will not even address, let alone resolve any of the common claims

against HMQ, the Region, and the City. As noted above, the CBRA will only address the issue of how much remediation is required in Port Colborne as a result of Incos Refinery operations. The CBRA will not address the conduct of any party other than Inco. Consequently, should this

- 65 action not be certified, the claims against the defendants other than Inco will never be adjudicated. The CBRA is clearly not the preferable procedure in relation to any of the

government defendants. 204. In relation to Inco, the CBRA is only looking at the question of remediation as of today.

The CBRA will not review Incos conduct at any time (past or present) or any aspect of the common issues raised by the class proceeding, such as the existence of a duty of care, the correct standard of care, whether the standard was breached and if so, at what time, what damages class members are entitled to for the period of time they have been forced to live on contaminated lands prior to any remediation taking place, and if and in what measure punitive damages are appropriate in this case. Since the CBRA will not resolve any of these common issues, it cannot be the preferable procedure. 205. Furthermore, class members should not be forced to stand by for several years watching a

process that will not settle their common issues wind its way through a very lengthy and complex procedure before they can exert their rights to a class proceeding.
Mont-Bleu Ford Inc. v. Ford Motor Company of Canada Ltd. (2000), 48 O.R. (3d) 753 (Div. Ct.) at p. 759 [tab 16]

206.

Third, the most serious defect in the CBRA is that it does provide for any mechanism to

financially compensate class members. In fact, as noted above, Inco has publicly stated that compensation will never be available under the CBRA. The MOE has also acknowledged that Inco has made no commitment whatsoever to paying compensation under the CBRA. 207. In Brimner, the court refused to consider a far more developed plan as a possible

alternative to a class proceeding because the actual payment mechanisms were still uncertain, even though the defendant was publicly committed to paying compensation. Here, no

- 66 compensation mechanisms at all have been proposed for the court to consider. Inco has publicly stated at a CBRA meeting that compensation is a matter that cannot be part of the CBRA process. 208. In addition, it should be noted that as indicated above, the MOE has acknowledged that

its powers related to the CBRA flow from section 17 of the Environmental Protection Act. Section 17 of the EPA provides:
Where any person causes or permits the discharge of a contaminant into the natural environment, so that land, water, property, animal life, plant life, or human health or safety is injured, damaged or endangered, or is likely to be injured, damaged or endangered, the Director may order the person to, (a) repair the injury or damage; (b) prevent the injury or damage; or (c) where the discharge has damaged or endangered or is likely to damage or endanger existing water supplies, provide alternate water supplies.

209.

From the language of section 17 it is evident that the MOEs powers are explicitly limited

to matters that are remedial in nature. The MOE would have no power under this section (or any other section of the EPA) to order that compensation be paid for damages related to personal health claims, diminution of property values due to stigma, or punitive damages. These are matters that can only be addressed through a court proceeding.

Guelph (City) v. Ontario (Ministry of Environment and Energy), [1995] O.J. No. 37 (Div. Ct.) at paras. 25-28 [tab 33]

210.

Furthermore, even if the MOE had such a power (which it does not) the only opportunity

to appeal would bring the matter before the Environmental Review Tribunal (the ERT), a body that like the MOE, has no expertise in matters such the assessment of damages in personal injury actions, punitive damage awards etc.

- 67 211. In the end, the CBRA relies exclusively on the EPA for legal jurisdiction and for any type

of enforcement, and on the ERT for any type of appeal. It is obvious that insofar as obtaining financial compensation under many of the heads of damages that would be considered in a class proceeding, the CBRA is completely devoid in terms of have jurisdiction to consider these issues, enforce any decisions or provide any rights of appeal.

212.

For all of the foregoing reasons then, it is abundantly clear that the CBRA cannot be the

preferable procedure.

Conclusion on preferability 213. As Mr. Justice Smith stated in Endean:


[The] object of the Act is not to provide perfect justice, but to provide a "fair and efficient resolution" of the common issues. It is a remedial, procedural statute and should be interpreted liberally to give effect to its purpose. It sets out very flexible procedures and clothes the court with broad discretion to ensure that justice is done to all parties... The suggested problems identified by counsel with respect to the assessment of damages can be accommodated within the flexible procedures made available by the Act.
Endean v. Canadian Red Cross Society (1997), 148 D.L.R. (4th) 157 (B.C.S.C.) at p. 172 [tab 31]

214.

The plaintiff has met the test in section 5(1)(d) of the CPA: a class proceeding is the

preferable procedure for the resolution of the common issues. Issue 7: 215. The class representative is appropriate

The plaintiff clearly fits within the definition of the class. The plaintiff has put forward a

reasonable case management plan. There are no conflicts between the plaintiff and other members of the class. 216. The test for a representatives appropriateness has been described as follows:

- 68
In Endean v. Canadian Red Cross Society, Smith J. considered the representative plaintiff requirements and held that the two most important considerations in determining whether a plaintiff was appropriate were whether there was a common interest with other class members and whether the representatives would "vigorously prosecute" the claim. It has been established that there is a common interest and I can see no reason why the representative plaintiffs would not vigorously prosecute the claim. Any individual plaintiffs who feel that the representative plaintiffs would not represent them well may opt out of the class proceeding and pursue individual actions.
Campbell v. Flexwatt Corp. (1997), 15 C.P.C. (4th) 1 (B.C.C.A.) at p. 23 [tab 8]

217.

The plaintiff is not required to have a comprehensive understanding of the scientific or

legal principles underlying the proposed cause of action.


Campbell v. Flexwatt Corp. (1997), 15 C.P.C. (4th) 1 (B.C.C.A.) at pp. 22-23 [tab 8]

218.

The plaintiff has met the test in section 5(1)(e) of the CPA: the proposed representative

plaintiff is appropriate and representative.

Conclusion 219. There is no reason why these issues should not be managed within one piece of litigation.

More importantly, class members have no practical option other than a class proceeding. If access to justice is to be served in this case, certification is essential. 220. This is the kind of case for which the CPA was designed. The huge financial burden of a

case such as this would consume all or almost all of the proceeds of the judgment of any single class member. The defendants (if responsible) would likely therefore be insulated from any of these claims because of financial consequences alone. It is only by spreading the cost that the members of the class have any chance of success. Not only is the class proceeding preferable, it is the only procedure whereby the members of the class will have any real access to the courts. Unlike the CBRA, it is also the only procedure through which the class will have any access to financial compensation if damages are warranted.

- 69 PART IV ORDER REQUESTED

221.

The plaintiff requests that the motion for certification be granted, with the costs of the

motion to be fixed by the court. May 15, 2002 ALL OF WHICH IS RESPECTFULLY SUBMITTED,

Kirk M. Baert KOSKIE MINSKY

Eric Gillespie MARKLE MAY PHIBBS

Joanna Board DAOUST VUKOVICH BAKER-SIGAL BANKA LLP Of counsel for the plaintiff.