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Court File No.

: 12023/01 Ontario SUPERIOR COURT OF JUSTICE B E T W E E N: WILFRED ROBERT PEARSON Plaintiff -andINCO 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

FACTUM OF THE DEFENDANT THE REGIONAL MUNICIPALITY OF NIAGARA


(Certification motion returnable June 3, 4, 5, 6 & 7, 2002) May 31, 2002 CASSELS BROCK & BLACKWELL LLP Barristers and Solicitors Scotia Plaza Suite 2100 40 King Street West Toronto, ON M5H 3C2 B. Robin Moodie LSUC#: 25459J Tel.: (416) 869-5734 Fax: (416) 360-8877 Thomas J. Donnelly LSUC#: 42228J Tel.: (416) 860-2954 Fax: (416) 360-8877 Solicitors for the Defendant, The Regional Municipality of Niagara

-2TO: MARKLE, MAY, PHIBBS Barristers and Solicitors 438 University Avenue, 21st Floor Toronto, ON M5G 2K8 Eric Gillespie Tel: (416) 593-4385 Fax: (416)593-4478 Solicitors for the Plaintiff AND TO: KOSKIE MINSKY Barristers and Solicitors Suite 900, 20 Queen Street West Toronto, ON M5H 3R3 Kirk M. Baert Tel: (416) 595-2117 Fax: (416) 977-3316 Solicitors for the Plaintiff AND TO: DAOUST VUKOVICH BAKER-SIGAL BANKA LLP Barristers and Solicitors 20 Queen Street West, 6th Floor Toronto, ON M5H 3R3 Wolfgang Kauffman Tel: (416) 597-8578 Fax: (416) 597-8897 Solicitors for the Plaintiff AND TO: OSLER HOSKIN & HARCOURT Barristers and Solicitors 1 First Canadian Place P.O. Box 50 Toronto, ON M5X 1B8 Larry Lowenstein Joseph Starkman Tel: (416) 862-6454 Fax: (416) 862-6666 Solicitors for the Defendant, Inco Limited

-3AND TO: LENCZNER SLAGHT ROYCE SMITH GRIFFIN Barristers and Solicitors 2600 130 Adelaide Street West Toronto, ON M5H 3P5 Alan J. Lenczner Tel: (416) 865-3090 Fax: (416) 865-9010 Solicitors for the Defendant, Inco Limited AND TO: SISKIND CROMARTY IVEY & DOWLER LLP Barristers and Solicitors 680 Waterloo Street P.O. Box 2520 London, ON N6A 3V8 Michael Peerless Tel: (519) 672-2121 Fax: (519) 672-6065 Solicitors for The District School Board of Niagara and The Niagara Catholic District School Board AND TO: STIEBER BERLACH GIBBS Barristers and Solicitors 900 130 Adelaide Street West Toronto, ON M5H 3P5 Steven Stieber Michelle Brodey Tel: (416) 594-4670 Fax: (416) 366-1466 Solicitors for the Corporation of the City of Port Colborne AND TO: CROWN LAW OFFICE - CIVIL ATTORNEY GENERAL OF ONTARIO 8th Floor, 720 Bay Street Toronto, ON M5G 2K1 Jack D. Coop Dennis Brown Tel: (416) 326-4098 Fax: (416) 326-4181 Solicitors for Her Majesty The Queen In Right of Ontario

-4Court File No.: 12023/01 Ontario SUPERIOR COURT OF JUSTICE B E T W E E N: WILFRED ROBERT PEARSON Plaintiff -andINCO 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

FACTUM OF THE DEFENDANT THE REGIONAL MUNICIPALITY OF NIAGARA


(Certification motion returnable June 3, 4, 5, 6 & 7, 2002)

TABLE OF CONTENTS
PART I - OVERVIEW PART II THE FACTS A. THE REGION AND THE MEDICAL OFFICER OF HEALTH. (i) Statutory authority and mandate. (ii) Mandatory duties of the Medical Officer of Health. (iii) Discretionary powers of the Medical Officer of Health. (iv) Mandatory Health Program and Service Guidelines. (v)Protection from Liability. B. PORT COLBORNE SOIL CONTAMINATION HISTORY. 6 8 8 8 9 9 10 11 11

-5(i) (ii) C. A. B. Nickel Emissions. Health Study Assessments. 11 13 15 20 20 21 21 22 23 24

THE RODNEY STREET AREA. THE CERTIFICATION CRITERIA. PLEADINGS DO NOT DISCLOSE A CAUSE OF ACTION. (i) (ii) (iii) (iv) The allegations against the Region The negligence allegations. The Medical Officer of Healths duties under the HPPA. No duty of care as alleged.

PART III THE LAW

C.

NO RATIONAL CONNECTION BETWEEN THE CLASS AND THE COMMON ISSUES. THERE ARE NO COMMON ISSUES RELATING TO THE REGION. (i) (ii) (iii)

28 33

D.

Definition of common issues. 33 No common issue regarding allegations of negligence. 34 No common issue regarding allegations of negligent misrepresentation. 36 39 40 40 40

E. F.

PREFERABLE PROCEDURE. PLAINTIFF NOT AN APPROPRIATE CLASS REPRESENTATIVE.

G. LITIGATION PLAN. PART IV - ORDER REQUESTED

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Court File No.: 12023/01 Ontario SUPERIOR COURT OF JUSTICE B E T W E E N: WILFRED ROBERT PEARSON Plaintiff -andINCO 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

FACTUM OF THE DEFENDANT THE REGIONAL MUNICIPALITY OF NIAGARA


(Certification motion returnable June 3, 4, 5, 6 & 7, 2002)

PART I - OVERVIEW 1. The plaintiff must prove that this action satisfies the five certification criteria

before it can be certified as a class proceeding. The five elements are as follows: (a) (b) (c) the statement of claim discloses a cause of action; there is an identifiable class of two or more persons that would be represented by Mr. Pearson; the claims or defences of the class members raise common issues;

-7(d) (e) a class proceeding would be the preferable procedure for the resolution of the common issues; and Mr. Pearson would fairly and adequately represent the interests of the class, 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 has no interest in conflict with other class members.
Regions Book of Authorities, Tab 1. Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5.

Reference:

2.

The Judge hearing the certification motion determines if the technical

prerequisites of s. 5 are met. Some of the criteria, such as the common issue and the preferability requirements, ensure that a class action is in the best interests of all parties. If there are better ways (i.e., another type of resolution is preferable) or if there is a cheaper and easier way (i.e., the individual issues outweigh the common issues in a class proceeding), then the motion ought to be dismissed so the alternatives can be pursued. 3. It is the plaintiff who brings the motion for certification and who accordingly bears

the onus of proving the criteria set out above. It is important to keep this onus in mind. In the case at bar, the plaintiff cannot prove the following elements in his claim against the Medical Officer of Health: (a) (b) (c) That the pleadings disclose a cause of action against the Medical Officer of Health; That there is a rational connection between the class as defined and the purported common issues; That there are common issues with respect to the Medical Officer of Healths alleged negligence in investigation and her alleged negligent misrepresentations; That a class proceeding is the preferable method of resolving the dispute; and That Mr. Pearson can represent the class appropriately.

(d) (e)

-84. The judge hearing the certification motion is in a unique position to guide the

parties and, in particular, to look out for the best interests of the putative class. Dismissing a certification motion in a case such as this, where there is a superior method of proceeding and where the individual issues outweigh any benefit of trying common issues, does not penalize or harm the putative class. Rather, the motions Judge is protecting the interests of the putative class by determining that a class proceeding is not effective in the circumstances. Dismissal of the certification motion in this case would simply be a judicial recognition that there is a better way to proceed, for the reasons set out below. PART II THE FACTS A. THE REGION AND THE MEDICAL OFFICER OF HEALTH. (i) 5. Statutory authority and mandate.

The Regional Municipality of Niagara (the Region) was formed on January 1,

1970. Within the Regions boundaries are twelve operating municipalities, including the City of Port Colborne. The Region provides certain services to the Niagara population while other services are provided through the twelve city and town governments. 6. The Region has the powers, rights and duties of a Board of Health as prescribed

by the Health Protection and Promotion Act, R.S.O. 1990, c.H.7 (the HPPA). The Region, through its Community and Health Services Committee, has operated a Public Health Department and employed a Medical Officer of Health since January 1, 1984, when the former Niagara Region Board of Health was dissolved.
Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. Robina C. Williams, sworn March 28, 2002, para. 3.

7.

The Medical Officer of Health is responsible for the mandate of the Region of

Niagara Public Health Department, which is to superintend and provide or ensure the provision of public health programs and services within the Region as a Health Unit.
Reference: Regions Book of Authorities, Tab 2A. Health Protection and Promotion Act, R.S.O. 1990, c. H.7.

-9Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. Robina C. Williams, sworn March 28, 2002, paras. 4-5.

8.

The Medical Officer of Healths duties and powers relating to community health

protection and health hazards are prescribed by the HPPA.


Reference: Regions Book of Authorities, Tab 2A. Health Protection & Promotion Act, R.S.O. 1990, c.H.7, Part III.

9.

A health hazard is defined in the statute as: (a) (b) (c) a condition of premises; a substance, thing, plant or animal other than man; or a solid, liquid, gas or a combination of any of them;

that has or that is likely to have an adverse effect on the health of any person.
Reference: Regions Book of Authorities, Tab 2A. Health Protection & Promotion Act, R.S.O. 1990, c.H.7, s. 1.

(ii) 10.

Mandatory duties of the Medical Officer of Health.

The Medical Officer of Healths mandatory duties are set out in sections 10, 11,

and 12 of the HPPA. In brief, a medical officer of health has a duty to inspect the Health Unit regarding health hazards, a duty to notify the appropriate ministry of complaints of health hazards related to occupational or environmental health, and to keep informed in matters related to health and environmental matters.
Reference: Regions Book of Authorities, Tab 2A. Health Protection & Promotion Act, R.S.O. 1990, c.H.7, ss.10-12.

(iii) 11.

Discretionary powers of the Medical Officer of Health.

In addition to the above mandatory duties, the Medical Officer of Health has a

wide statutory discretion in deciding which remedies to enforce.

- 10 12. The Medical Officer of Health or a Public Health Inspector may make a written

order requiring a person to take or to refrain from taking any action in respect of a health hazard. There are conditions precedents to making such an order. The Medical Officer or Inspector must be of the opinion that there are reasonable and probable grounds that a health hazard exists and that an order is required to decrease the effect of or eliminate the health hazard. The requirements of what is involved in making an order, what it may include, and on whom it may be served are set out in s. 13 of the HPPA.
Reference: Regions Book of Authorities, Tab 2A. Health Protection & Promotion Act, R.S.O. 1990, c.H.7, s. 13.

13.

In addition, a Medical Officer of Health may give directions to persons whose

services are engaged by the Board of Health to eliminate or decrease health hazards. The Medical Officer of Health may give direction in place of or with an order, again on the basis of reasonable and probable grounds that a health hazard exists. The full requirement of the circumstances in which directions may be given and to whom is set out in s. 14 of the HPPA.
Reference: Regions Book of Authorities, Tab 2A. Health Protection & Promotion Act, R.S.O. 1990, c.H.7, s. 14.

14.

The Board of Health may also recover from the owner or occupier (or both) of

premises any expenses incurred in respect of health hazard.


Reference: Regions Book of Authorities, Tab 2A. Health Protection & Promotion Act, R.S.O. 1990, c.H.7, s. 15.

(iv) Mandatory Health Program and Service Guidelines. 15. The province sets minimum standards for programs delivered by a health unit as

set out in the Mandatory Health Program and Service Guidelines.


Reference: Transcript of Cross-Examination of Dr. R.C. Williams, Q. 43, p. 21. Joint Compendium of Exhibits and Answers to Undertakings, Volume III, Tab N.2., Mandatory Health Program and Service Guidelines.

- 11 -

(v) Protection from Liability. 16. A Medical Officer of Health is protected from personal liability such that no action

or proceeding for damages or otherwise can be commenced for any act done in good faith in the execution or intended execution of any duty or power under the HPPA, or for the alleged neglect or default in the execution in good faith of any such duty or power.
Reference: Regions Book of Authorities, Tab 2A. Health Protection & Promotion Act, R.S.O. 1990, c.H.7, s. 95. Regions Book of Authorities, Tabs 4B-4E.

B.

PORT COLBORNE SOIL CONTAMINATION HISTORY. (i) Nickel Emissions.

17.

The Region adopts1 from Incos Factum the statement of facts regarding the

history of Incos Port Colborne facility, which opened in 1918 and operated with production declining in the 1970s until nickel production ceased altogether in 1984. 18. The Region further adopts the statement of facts regarding the history of

emissions from the Inco facility, that over 97% of the total nickel emissions were deposited in the surrounding area before 1960, and that emissions since 1984 have been negligible, as set out in Incos Factum. The Region also accepts the statement of facts regarding public awareness of Incos emissions as set out in Incos Factum. 19. Although the Region was aware of the ongoing monitoring of the air and soil

sampling in the 1970s by the Ministry of The Environment (MOE), it received little enquiry from members of the public regarding soil contamination. The earliest

correspondence of which the Public Health Department is aware was a letter dated August 29, 1991, from Frank Augustine, who wished to develop some farmland for a residential development. The City had required an environmental assessment. Mr.

The Region adopts, throughout this Factum, statements of facts and submissions from the Factums of Inco and Her Majesty The Queen (HMQ), for the purpose of this motion only, to avoid repetition.

- 12 Augustine consulted with the MOE and an independent consultant regarding the types and quantities of various elements present in the soil on the property. Mr. Augustine enquired of the Medical Officer of Health as to what would be an acceptable background level of nickel in raw land to be used for residential housing. The then Medical Officer of Health, Dr. J.N. Berkholder, consulted with the environmental toxicologist at the Ministry of Health and advised Mr. Augustine that the nickel content in his soil was above guidelines based on the potential effect on plant life. There were no guidelines based on human health as to soil levels. Dr. Berkholder reported,
In essence, although we cannot predict deleterious effects on human health, neither can we give assurance that this or any other level of nickel will be absolutely safe to human population. In the absence of clear health guidelines, therefore, you are proposing a development for human habitation in an environment which is not acceptable for plant life. It then becomes a matter of acceptability on the part of the purchasers in liability in the event that deleterious effects should occur, which at this time cannot be predicted. Reference: Transcript of Cross-Examination of Dr. R.C. Williams, Q. 4 - 13, pages 5 9. Joint Compendium of Exhibits and Answers to Undertakings, Volume III, Tab N.6.

20.

The levels of nickel in the surface soil generally follow the direction of the

prevailing winds so that they are found in an area running northeast from the Inco plant, which is in the southeastern section of residential Port Colborne. The Region accepts the statement of fact on this and the computer mapping by Her Majesty, as well as the decline in the ambient air levels, as set out in Incos Factum. 21. Nickel can occur in various forms in a natural environment and examples include

nickel oxide, nickel sulphide, nickel sub-sulphide, nickel chloride and metallic nickel. The species of nickel in the soil is an important factor in considering its potential toxicity to both the natural ecosystem and human health.
Reference: Motion Record of HMQ, Vol. III, Tab 5, Soil Investigation and Human Health Risks For the Rodney Street Community, Port Colborne: March 2002, Pg. 12.

22.

The actual speciation tests of nickel in Port Colborne were done after March 2001

by the MOE and are reflected in its March 2002 report. The testing and analysis for speciation of nickel in soil is non-routine and requires specialized laboratory equipment

- 13 and specially trained technicians and scientists, and is the type of analysis not routinely conducted in environmental investigations.
Reference: Transcript of Cross-Examination, Dr. R.C. Williams, Q. 44, pp. 22-23. Motion Record of HMQ, Vol. III, Tab 5, Soil Investigation and Human Health Risks For the Rodney Street Community, Port Colborne: March 2002, Pg. 16.

23.

The Region adopts the statement of facts about determining soil conditions and

their source found in Incos Factum and, in particular, the conclusions that speciation testing has shown various nickel forms in different areas in Port Colborne, and that the speciation is site specific. 24. The Region further accepts the statement of fact concerning the issues of

potency, concentration, and routes of exposure to certain nickel forms in determining health effects and their cause, as set out in Incos Factum. 25. The Region repeats and adopts the statements of fact and submissions regarding

determining health effects and their cause found in Incos Factum. (ii) Health Study Assessments.

26.

The Region was aware since at least 1991 of the MOEs soil testing and

investigations of the soil and vegetation in Port Colborne to determine the effect of emissions from the refinery. The MOE concluded that the Inco emission resulted in elevated concentrations of nickel, copper and cobalt in the surface soil of Port Colborne.
Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, para. 9.

27.

As a result of phytotoxicology investigation results, the MOE initiated a health risk

assessment to determine if the elevated nickel, copper and cobalt concentrations in the soil in Port Colborne resulted in the potential for adverse health effects. The Public Health Department co-authored a report starting in 1995 with the MOE which was released in May 1997.

- 14 Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, para. 10.

28.

The Health Study Assessment involved both a site specific risk assessment to

provide estimates of intake for exposure from inhalation, oral and dermal contact to create a total multimedia exposure estimate and secondly, population health data was evaluated to determine if there was any evidence of increased disease incidence in Port Colborne as compared to the rest of Ontario. The Public Health Branch of the Ministry of Health provided data on adverse reproductive outcomes. The Ontario Cancer

Treatment & Research Foundation provided cancer incidence data. The 1997 report concluded:
Based on a multimedia assessment of potential risk, no adverse health effects are anticipated to result from exposure to Ni, Cu, or Co, in soil in the Port Colborne area. Furthermore, the review of population health data did not indicate any adverse health effects which may have resulted from environmental exposure. Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, paras. 11-13.

29.

The Public Health Department updated the analysis of population health data as

part of a January 2000 update to the MOEs Phytotoxicology Report. Several more years of available data were analyzed in the population health report and the conclusion was reached that:
Based on the current analysis, and in combination with the previous released technical report, there continues to be no adverse health effects anticipated to result from exposure to nickel, copper or cobalt, in soils in the Port Colborne area. Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, para. 14.

30.

That opinion was qualified by the advice that there were limitations on the data

analyzed such that it could not be uncategorically stated there was no effect. It was felt, however, that a rational approach using the best available data showed no evidence of a population health effect with respect to nickel, copper and cobalt exposure in Port Colborne.

- 15 Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, para. 15.

31.

Concurrent with the ongoing analysis of the soil sampling and population health

data, the MOE, the City of Port Colborne and Inco developed a strategy to remediate the soil in Port Colborne, which resulted in the process called the Community Based Risk Assessment (the CBRA). The Region adopts the statements of fact regarding the CBRA and its advantages as a method of proceeding set out in the Factums of Inco and Her Majesty. The Region also adopts the statement of facts concerning the other

studies and the work of regulators described in the Factums of Inco and Her Majesty. 32. The Public Health Department has consistently participated in the CBRA process

and has supported all initiatives put forward by the stakeholders, the MOE, the City of Port Colborne, and Inco to remediate the affected lands within the guidelines as determined by the MOE and the Community Risk Assessment. There has been heated discussion on issues from time-to-time between the various parties and stakeholders involved, but the CBRA has continued to move ahead. The Region supports it as a process to resolve the public concerns regarding the Inco emissions in Port Colborne.
Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, paras. 17-18.

C. 33.

THE RODNEY STREET AREA. Following a request in the summer of 2000 by a Port Colborne resident who lived

near the Inco facility, the MOE tested the soil on his property and found higher than expected nickel level. This led to further testing by the MOE in the area called the Eastside Community or the Rodney Street neighbourhood. This constitutes a 10-block area boarded by Louis Street to the north, the Inco Refinery to the east, the Welland Canal to the west, and Rodney Street to the south. The MOE sampled 179 properties and undertook a health risk assessment. The Region adopts the statement of facts concerning the March 2001, October 2001, and March 2002 Human Health Risk Assessments as set out in Her Majestys Factum.

- 16 Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, para. 20.

34.

The results of the soil sampling showed that the soil contamination, in general, Properties with much lower soil contaminant levels were often Conversely,

was patchy.

encountered between properties with much higher concentration.

occasionally single properties with significantly elevated concentrations of some elements were surrounded by property with much lower contaminant levels. This

patchwork pattern was related to the interaction between atmospheric deposition, placement of contaminated fill and property, specific landscaping and construction activities.
Reference: Responding Motion Record of Her Majesty the Queen, Volume 3, Tab F. March 2002 Report, Part A, p. 22.

35.

The report concluded, among other things, that the average soil nickel

concentration on residential properties in Rodney Street is 2,508 parts per million. Very high soil nickel levels were not widespread throughout the community. The Medical Officer of Health supports the MOEs findings in its March 2002 report of a soil nickel intervention of 8,000 parts per million to protect toddler age children seven months to less than five years, based on current knowledge.
Reference: Responding Motion Record of Her Majesty the Queen, Volume 3, Tab F. March 2002 Report, Part A, p. 14. Transcript of Cross-Examination, Dr. R.C. Williams, Q. 22 -.27, pp. 13-14.

36.

The Region accepts the statement of facts set out in Incos and the HMQs

Factum regarding the order made and Incos voluntary remediation of the 25 properties with high nickel levels in the Rodney Street area. 37. The Medical Officer of Health has not exercised her discretion to make any

orders or issue any directions under the HPPA with respect to these 25 properties. Instead, the Medical Officer of Health has supported the MOE clean-up order against Inco and encouraged people to continue with remediation.

- 17 Reference: Transcript of Cross-Examination, Dr. R.C. Williams, Q. 37, pp. 16-17.

38.

Another finding of the MOEs soil testing in Rodney Street was that there were

elevated lead levels in some soil samples. The Ministry concluded that, these soil lead levels are typical of older urban residential neighbourhoods and result from the historical use of lead based paints, leaded gasoline, and discarded lead acid batteries. The

elevated lead levels found on some properties are not caused by either Inco or Algoma emissions.
Reference: Responding Motion Record of Her Majesty the Queen, Vol. 3, Tab F. Risk Assessment for the Rodney Street Community, Port Colborne: March 2002 Report, pg. 1.

39.

On learning of the elevated lead soil samples with the first version of the MOE

Report (released in March 2001), the Public Health Department immediately responded by enlisting outside experts and designing and implementing a blood level survey to investigate exposure to potential health impacts of lead in Rodney Street, which is also referred to as the Eastside Community. A total of 1,065 individuals were screened and a report was prepared. The Lead Screening Report of Eastside Community, Port

Colborne April June 2001, concluded that the average Eastside Community blood lead levels were low and were similar to those from the rest of Port Colborne and other Ontario communities. The study found that children and pregnant women were not at increased risk of lead exposure as compared to other communities in Ontario even considering the localized elevated soil lead levels. Although these results were

reassuring, the Health Department continued to recommend that people limit their exposure to soil containing known contaminants.
Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, paras. 21-23. Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, Exhibit C, Lead Screening Report of Eastside Community, Port Colborne April June 2001, p. 11.

- 18 40. Any individuals who were found to have elevations on venenous testing were

followed up through their family doctor initially and referred to a tertiary centre, as required. People whose blood level was not elevated to a level where medical

intervention was recommended were referred to their family physician if they had any concerns.
Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, Tab C, page 3.

41.

In its 2002 report, the MOE has set an interventional level of 1,000 parts per

million for lead for play areas on residential properties or in public areas covered by sod or grass to which children have access. The bare soil intervention for lead was set at 400 parts per million for these areas. The MOE required action for the intervention levels for lead through follow-up by individual residents to reduce personal exposure. The Ministry of Environment identified 11 properties with soil lead levels in excess of 1,000 parts per million. This included two of the 25 properties with elevated soil nickel levels, which were covered by the MOE clean-up order.
Reference: Responding Motion Record of Her Majesty, Vol. 3, Tab F. Risk Assessment for the Rodney Street Community, Port Colborne: March 2002 Report.

42.

The Medical Officer of Health has not exercised her discretion to make any

orders under the Health Promotion and Protection Act regarding the 11 properties with high lead levels. The Public Health Department has exercised the other options

available under the HPPA and the Guidelines, including education and harm reduction strategies in dealing with the Rodney Street area.
Reference: Transcript of Cross-Examination, Dr. R.C. Williams, Answer to Q. 37, p. 17.

43.

Beyond the specific lead study, the Region commissioned a health study for the

Eastside Community and hired a private consortium of Goss, Gilroy and Cantox Environmental. The initial response from the community in the spring of 2001 was positive with strong interest in a health study involving interviews and blood and urine

- 19 samples. A design for the study protocol was reviewed and approved by both an

internal and formal external ethics committee with the actual interviewing and blood and urine sampling to take place in November 2001. By that time, the Pearson lawsuit had been commenced and the health study could not move forward due to low participation by the community. There are various reasons as to why participation dropped from the strong initial interest including the effect of the commencement of the lawsuit and statements made by counsel for Mr. Pearson concerning the health study.
Reference: Responding Motion Record of The Regional Municipality of Niagara Affidavit of Dr. R.C. Williams, paras. 24 26.

44.

In addition to these studies, the Public Health Department has fulfilled its duties

under the Health Promotion and Protection Act, and the Mandatory Health Programs and Services Guidelines and responded to individual health concerns regarding soil contamination in Port Colborne by providing: (a) (b) (c) (d) (e) (f) information through harm reduction advisories, fact sheets, information sheets and question and answer sheets on heavy metals; communication strategies which have included community meetings, doorto-door drops, telephone hotlines, website postings and media interviews; open houses and personal meetings with residents to discuss specific health questions; individual follow-up with public health nurses and inspectors; ongoing information to and consultation with family doctors; maintaining a heavy metals health hotline.

The Medical Officer of Health has also retained and consulted with experts as needed.
Reference: Responding Motion Record of The Regional Municipality of Niagara. Affidavit of Dr. R.C. Williams, paras. 27-29 Joint Compendium of Exhibits and Answers to Undertakings, Vol. III, Tabs N.4 and N.5.

- 20 45. The Public Health Department has complied with all aspects of the health hazard

investigation section of the Mandatory Guidelines which has guided its approach to the Port Colborne community.
Reference: Transcript of Cross-Examination, Dr. R.C. Williams, Answer to Q. 43, p. 21.

46.

The Region adopts from the Factums of Inco and Her Majesty the critique of the

recitation of the facts in the plaintiffs factum.

PART III THE LAW A. 47. THE CERTIFICATION CRITERIA. Mr. Pearson must establish the five elements set out in s. 5 of the Class

Proceedings Act, 1992 before the action can be certified as a class proceeding:
5(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if, (a) (b) (c) (d) (e) the pleadings or the notice of application 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, (i) (ii) would fairly and adequately represent the interests of the class, 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 other class members. 1992, c. 6, s. 5 (1).

(iii) Reference:

Regions Book of Authorities, Tab 1. Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5.

- 21 48. The plaintiff cannot prove the following elements, and the action accordingly

ought not be certified as a class proceeding: (a) (b) (c) That the pleadings disclose a cause of action against the Region; That there is a rational connection between the class as defined and the purported common issues; That there are common issues with respect to the Regions alleged negligence in investigation and its alleged negligent misrepresentations; That a class proceeding is the preferable method of resolving the dispute; and That the representative appropriately. plaintiff can represent the class

(d) (e) 49.

These issues are dealt with in turn below.

B.

PLEADINGS DO NOT DISCLOSE A CAUSE OF ACTION. (i) The allegations against the Region

50.

Mr. Pearson has sued a number of defendants, and he has different potential

causes of action against each of the defendants. It is important to realize that Mr. Pearson is not advancing one cause of action against several defendants. Rather, he is advancing several causes of action against several defendants. 51. It is therefore necessary to focus on the specific causes of action that are being

alleged against the particular defendants. In the case of the Region, Mr. Pearson is only advancing two: (a) (b) Negligence; and Negligent misrepresentation.

- 22 52. The pleadings against the Region do not disclose a cause of action, as there is

no duty of care of the type alleged by the plaintiff. The analysis is set out below, after an examination of the allegations against the Region. (ii) 53. The negligence allegations.

Mr. Pearson alleges in the Fresh As Amended Statement of Claim that the

Medical Officer of Health had numerous statutory responsibilities to the Class Members pursuant to the Health Promotion and Protection Act and related legislation. He pleads that the Medical Officer of Health knew or ought to have known that a lack of care would cause damage to the class members, and that the Medical Officer of Health consequently owed a duty of care.
Reference: Plaintiffs Motion Record, Volume II, Tab 1A, page 24. Fresh As Amended Statement of Claim, para. 50.

54.

Mr. Pearson made a general pleading that the Medical Officer of Health failed to

take such steps or apply such laws, regulations or guidelines as its mandate from time to time required to prevent damage being caused to the class members. In particular, he alleges that the Medical Officer of Health failed to monitor or investigate the refinery properly, failed to warn of emissions and exposure to nickel oxide, failed to obtain information in order to rectify known defects at the refinery, failed to respond to or study the issue, and failed to apply the Health Protection and Promotion Act.
Reference: Plaintiffs Motion Record, Volume II, Tab 1A, page 24. Fresh As Amended Statement of Claim, para. 52.

55.

In his Fresh As Amended Reply to Demand For Particulars of the Regional

Municipality of Niagara (Niagara Particulars Reply), Mr. Pearson provided more substance to the allegations of negligence, and he specified the sections of the Health Protection & Promotion Act that the MOH allegedly failed to apply: (a) To carry out her duties to inspect the lands in Port Colborne, for the purpose of eliminating the effects of health hazards pursuant to s. 10(1) of the Health Protection & Promotion Act;

- 23 (b) (c) (d) To carry out her duties to investigate and respond to complaints as required pursuant to s. 11 of the HPPA; To keep informed of environmental and occupational health hazards in Port Colborne; and Failed to make orders to protect public health and class members as permitted pursuant to s. 13 of the HPPA.
Plaintiffs Motion Record, Volume II, Tab 1D, page 82. Niagara Particulars Reply, para. 4. Plaintiffs Motion Record, Volume II, Tab 1D, page 89. Niagara Particulars Reply, para. 25. Plaintiffs Motion Record, Volume II, Tab 1D, page 94. Niagara Particulars Reply, para. 41.

Reference:

(iii) 56.

The Medical Officer of Healths duties under the HPPA.

The mandatory duties of a Medical Officer of Health are contained in sections 10,

11, and 12 of the HPPA, as described in paragraph 10 above. The plaintiff has put forward no evidence that the Medical Officer of Health failed to meet these duties, or that any complaint has been made relevant to s. 11 of the HPPA. In contrast, the evidence summarized in paragraphs 26-45 above is clear that the Medical Officer of Health carried out her duties under the statute.
Reference: Regions Book of Authorities, Tab 2A. Health Protection & Promotion Act, R.S.O. 1990, c. H.7, ss. 10-12.

57.

Although the motions court is not to rule on the merits of the action, the plaintiff

must adduce some evidence to prove that the certification criteria are met. The plaintiff is also required to establish that all of the putative class members have at least a colourable claim against the Region
Reference: Regions Book of Authorities, Tab 3. Hollick v. Toronto (City) (2001), 205 D.L.R. (4th) 19 at 30 (S.C.C.)

58.

The remaining allegation against the Medical Officer of Health involves her

discretionary powers under the HPPA. The plaintiff alleges that she was negligent in not

- 24 issuing orders. It is important to realize that the ability to issue orders under the HPPA is a discretionary power. The Medical Officer of Health chose to follow other options which were available to her under the HPPA, as discussed above. There is no

allegation, much less evidence, that she exercised her discretion improperly, and there can accordingly be no liability on her. colourable claim in negligence. 59. Apart from this, there is an even more fundamental problem with both the The plaintiff has failed to make out even a

negligence and negligent misrepresentation claims. It is plain and obvious that there is no cause of action, as the Region owes no duty of care of the type alleged by the plaintiff. (iv) 60. No duty of care as alleged.

In Cooper v. Hobart, the Supreme Court held that a class action against the

British Columbia regulator of mortgage brokers could not be certified, as the regulator owed no duty of care to the investors who had lost money.
Reference: Regions Book of Authorities, Tab 4. Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 (S.C.C.).

61.

In Cooper, the court revisited the duty of care issue. It held that the two-step

process established in the Anns v. Merton London Borough Council decision is still applicable. The first step is to see if the harm was reasonably foreseeable and,

notwithstanding the proximity between the parties, if there is any policy reason why tort liability should not be imposed. The second step involves a consideration of residual policy concerns that would preclude imposition of a duty of care:
In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the Anns analysis is best understood as follows. At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. [Emphasis in original.]

- 25 Reference: Regions Book of Authorities, Tab 4. Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 at 203 (S.C.C.).

62.

The Supreme Court examined the statute governing the regulator to determine if

there was a relationship of sufficient proximity. The Court noted that, as a statutory creation, the regulators duty of care could exist only through the governing statute:
In this case, the factors giving rise to proximity, if they exist, must arise from the statute under which the Registrar is appointed. That statute is the only source of his duties, private or public. Apart from that statute, he is in no different position than the ordinary man or woman on the street. If a duty to investors with regulated mortgage brokers is to be found, it must be in the statute. Reference: Regions Book of Authorities, Tab 4. Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 at 207-208 (S.C.C.).

63.

The Court reviewed the statute to determine whether any duty was owed. In

particular, the court considered the investigatory powers of the regulator, the discretionary powers in enforcing remedies, and the good faith defence set out in the statute. Based on this, the Court concluded that no duty of care was owed to the investors. Any duty of care was owed to the public at large:
In this case, the mortgage brokers Indeed, a duty to duty to the public. Reference: statute does not impose a duty of care on the Registrar to investors with regulated by the Act. The Registrar's duty is rather to the public as a whole. individual investors would potentially conflict with the Registrar's overarching ...

Regions Book of Authorities, Tab 4. Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 at 208 (S.C.C.).

64.

If a duty were owed, it would be fetter the regulators ability to act appropriately in

the circumstances of any given case. The regulators duties were discretionary in part, and the regulator needed the freedom to choose how to act and respond to matters. The duty of care would impede the regulators ability to balance competing interests and take appropriate actions:
The regulatory scheme governing mortgage brokers provides a general framework to ensure the efficient operation of the mortgage marketplace. The Registrar must balance a myriad of competing interests, ensuring that the public has access to capital through mortgage financing while at the same time instilling public confidence in the system by determining who is "suitable" and whose proposed registration as a broker is "not objectionable". All of the powers or tools

- 26 conferred by the Act on the Registrar are necessary to undertake this delicate balancing. Even though to some degree the provisions of the Act serve to protect the interests of investors, the overall scheme of the Act mandates that the Registrar's duty of care is not owed to investors exclusively but to the public as a whole. Accordingly, we agree with the Court of Appeal per Newbury J.A.: even though the Registrar might reasonably have foreseen that losses to investors in Eron would result if he was careless in carrying out his duties under the Act, there was insufficient proximity between the Registrar and the investors to ground a prima facie duty of care. The statute cannot be construed to impose a duty of care on the Registrar specific to investments with mortgage brokers. Such a duty would no doubt come at the expense of other important interests, of efficiency and finally at the expense of public confidence in the system as a whole. [Emphasis added.] Reference: Regions Book of Authorities, Tab 4. Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 at 209-210 (S.C.C.).

65.

In concluding that no duty was owed, the Supreme Court considered the good

faith defence contained in the Mortgage Brokers Act, R.S.B.C. 1996, c. 313, s. 20:
Finally, s. 20 exempts the Registrar or any person acting under his authority from any action brought for anything done in the performance of duties under the Act or Regulations, or in pursuance or intended or supposed pursuance of the Act or Regulations, unless it was done in bad faith. Reference: Regions Book of Authorities, Tab 4. Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 at 209 (S.C.C.).

66.

The good faith defence in the Mortgage Brokers provided as follows:


Liability of registrar, commission, etc. 20. An action may not be brought or continued against the registrar or a person acting under the authority of the registrar for anything done by the registrar or the person in the performance of duties under this Act or the regulations or in pursuance or intended or supposed pursuance of this Act or the regulations, unless it was done in bad faith.

Reference:

Regions Book of Authorities, Tab 5. Mortgage Brokers Act, R.S.B.C. 1996, c. 313, s. 20

67.

A similar result occurred in the companion case of Edwards v. Law Society of

Upper Canada, where the plaintiffs lost money that had been invested through a lawyers trust account. The plaintiffs alleged that the Law Society was negligent in failing to ensure the lawyer operated his trust account pursuant to the law society rules. In concluding that the Law Society owed no duty of care, the Supreme Court also relied upon the good faith defence found in the statute:

- 27 Finally, and perhaps most indicative of the Legislature's intent, the Act provides statutory immunity in s. 9 of the Act which read: 9. No action or other proceedings for damages shall be instituted against the Treasurer or any bencher, official of the Society or person appointed in Convocation for any act done in good faith in the performance of any duty or in the exercise or in the intended exercise of any power under this Act, a regulation or a rule, or for any neglect or default in the performance or exercise in good faith of any such duty or power. Reference: Regions Book of Authorities, Tab 6. Edwards v. Law Society of Upper Canada (2001), 206 D.L.R. (4th) 211 at 219220 (S.C.C.).

68.

As in Edwards and Cooper, the Medical Officer of Health and the health unit are

statutory creations. Any duties must be founded in the governing statute, the HPPA. 69. As in those two cases, the HPPA similarly confers supervisory, investigative, and The statute also

discretionary remedial functions on the Medical Officer of Health. provides a good faith defence that is very similar:
Protection from personal liability

95(1) No action or other proceeding for damages or otherwise shall be instituted against a member of a board of health, a medical officer of health, an associate medical officer of health of a board of health, an acting medical officer of health of a board of health or a public health inspector for any act done in good faith in the execution or the intended execution of any duty or power under this Act or for any alleged neglect or default in the execution in good faith of any such duty or power. Reference: Regions Book of Authorities, Tab 2A. Health Protection & Promotion Act, R.S.O. 1990, c.H.7, s. 95(1).

70.

The purpose of the good faith defence is to permit the Medical Officer of Health to If the Medical

carry out her duties without having to walk on proverbial eggshells.

Officer of Health owed a duty of care to individuals such as the putative class members in this type of circumstance, her discretion to act in the best interests of all the community would be impaired. The threat of legal actions would harm her ability to act independently to ensure that the best course of action is followed. 71. For these reasons, the good faith defence embodied in s. 95 of the HPPA

prevents any liability from being imposed on the Medical Officer of Health in the absence of bad faith. There is no pleading in the within case, much less evidence, of any cause of action in bad faith.

- 28 72. As in the Cooper and Edwards cases, it is inappropriate to impose on the Region

a duty of care of the type alleged by the plaintiff. The legislative intent is reflected in the enactment of the good faith defence in s. 95. 73. Even if a prima facie duty were owed, the second branch of the Anns test would

negative it. Whether to exercise statutory discretion is a policy decision for which no liability can attach.
Reference: Regions Book of Authorities, Tab 4. Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 at 206 (S.C.C.).

74.

The plaintiffs cannot establish that the pleadings, at least against the Region,

disclose a cause of action in negligence or negligent misrepresentation because there is no duty of care of the type alleged by the plaintiff. The action therefore ought not be certified against the Region.

C. 75.

NO RATIONAL CONNECTION BETWEEN THE CLASS AND THE COMMON ISSUES. The statute requires that there be an identifiable class of two or more that can be

represented by the plaintiff.


Reference: Regions Book of Authorities, Tab 1. Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1)(b).

76.

The Supreme Court of Canada considered this element in the leading case of

Hollick v. Toronto. It held, in part, that the class must be objectively identifiable, in that one can determine on an objective basis who is and who is not a member.
Reference: Regions Book of Authorities, Tab 3. Hollick v. Toronto (City) (2001), 205 D.L.R. (4th) 19 at 30 (S.C.C.)

77.

Mr. Pearson has defined the putative class based on a geographical area

bounded by four streets in the town of Port Colborne. While this may or may not be an

- 29 appropriate way to define a class as against a polluter, it is inappropriate for the claims against the Region.
Reference: Regions Book of Authorities, Tab 12. Mouhteros v. Devry Canada Inc. (1998), 41 O.R. (3d) 63 at 68 (Gen. Div.).

78.

The geographical boundaries of the class are defined in an area that was

allegedly contaminated by emissions from the refinery. It must be remembered that the claim against the Region is not that it emitted pollutants. Instead, it is a claim that the Region negligently failed to investigate, and that the Region negligently misrepresented facts to the putative class. 79. A geographical definition of the class is therefore inappropriate for the types of

claims being advanced against the Region. The geographical boundary is arbitrary as far as these claims are concerned. There is nothing in the putative class to limit the class to people affected by the alleged negligent investigation, or to people who were aware of and relied upon the alleged misrepresentations. Mr. Justice Winkler noted in Mouhteros v. DeVry that such a class definition ought not be certified:
In my view, there must be some connection between the class definition and the common issues. The mere fact that a group of people is identifiable is not sufficient to render them a class for the purposes of the Act. Indeed, such a connection is contemplated by the wording of s. 5(1)(c), which mandates that the claims or defences of the class members raise common issues. . . . In the present case, however, the class definition is over-inclusive. The proposed class encompasses all students of DeVry in the relevant period; however, many of these students may have no claim, let alone a claim which raises a common issue. . . . The essence of the claim is that members of the proposed class relied to their detriment on misrepresentations of the defendant as to the quality of a DeVry education and its marketability to prospective employers. However, the class, as presently defined, includes all students of DeVry, including those who successfully completed their programs, were satisfied with the education they received, and went on to obtain employment related to their field of study. As well, the proposed class includes all students who enrolled, regardless of whether they heard or relied upon any of the alleged misrepresentations. Such persons might well have no claim against DeVry for any of the relief pleaded, let alone a claim which raises a common issue. Reference: Regions Book of Authorities, Tab 12. Mouhteros v. Devry Canada Inc. (1998), 41 O.R. (3d) 63 at 68 (Gen. Div.).

80.

Defining the class in this manner, at least as against the Region, is contrary to

the Supreme Courts ruling in Hollick v. Toronto. In that case the Court approved of Mr.

- 30 Justice Winklers analysis in Mouhteros and held that there must be a rational connection between the way the class is defined and the common issues. It must be apparent that all of the putative class members have issues in common, and that they have a colourable claim against the Region. If not, the class ought not be certified as defined:
In this case there is no doubt that, if each of the class members has a claim against the respondent, some aspect of the issue of liability is common within the meaning of s. 5(1)(c). For any putative class member to prevail individually, he or she would have to show, among other things, that the respondent emitted pollutants into the air. At least this aspect of the liability issue (and perhaps other aspects as well) would be common to all those who have claims against the respondent. The difficult question, however, is whether each of the putative class members does indeed have a claim -- or at least what might be termed a "colourable claim" -- against the respondent. To put it another way, the issue is whether there is a rational connection between the class as defined and the asserted common issues: see Western Canadian Shopping Centres, at para. 38 ("the criteria [defining the class] should bear a rational relationship to the common issues asserted by all class members"). . . . The respondent is of course correct to state that implicit in the "identifiable class" requirement is the requirement that there be some rational relationship between the class and common issues. Little has been said about this requirement because, in the usual case, the relationship is clear from the facts. In a single-incident mass tort case (for example, an air plane crash), the scope of the appropriate class is not usually in dispute. The same is true in product liability actions (where the class is usually composed of those who purchased the product), or securities fraud actions (where the class is usually composed of those who owned the stock). In a case such as this, however, the appropriate scope of the class is not so obvious. It falls to the putative representative to show that the class is defined sufficiently narrowly. [Emphasis added.] Reference: Regions Book of Authorities, Tab 3. Hollick v. Toronto (City) (2001), 205 D.L.R. (4th) 19 at 30-31 (S.C.C.). Regions Book of Authorities, Tab 7. Western Canadian Shopping Centres Inc. v. Bennett Jones Verchere (2001), 201 D.L.R. (4th) 385 at 401 (S.C.C.).

81.

The plaintiff must ensure that the class is not overly broad. If there is no rational

connection between the proposed class definition and the common issues, then the class is defined too broadly:
The requirement is not an onerous one. The representative need not show that everyone in the class shares the same interest in the resolution of the asserted common issue. There must be some showing, however, that the class is not unnecessarily broad -- that is, that the class could not be defined more narrowly without arbitrarily excluding some people who share the same interest in the resolution of the common issue. Where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended. [Emphasis in original.]

- 31 Reference: Regions Book of Authorities, Tab 3. Hollick v. Toronto (City) (2001), 205 D.L.R. (4th) 19 at 31 (S.C.C.)

82.

Although the motions court is not to rule on the merits of the action, the plaintiff

must adduce some evidence to prove that the certification criteria are met, as held in Hollick v. Toronto:
I agree that the representative of the asserted class must show some basis in fact to support the certification order. As the court in Taub held, that is not to say that there must be affidavits from members of the class or that there should be any assessment of the merits of the claims of other class members. However, the Report of the Attorney General's Advisory Committee on Class Action Reform clearly contemplates that the class representative will have to establish an evidentiary basis for certification: see Report, at p. 31 ("evidence on the motion for certification should be confined to the [certification] criteria"). The Act, too, obviously contemplates the same thing: see s. 5(4) ("The court may adjourn the motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence."). In my view, the class representative must show some basis in fact for each of the certification requirements set out in s.5 of the Act, other than the requirement that the pleadings disclose a cause of action. [Emphasis added.] Reference: Regions Book of Authorities, Tab 3. Hollick v. Toronto (City) (2001), 205 D.L.R. (4th) 19 at 33 (S.C.C.)

83.

An example of the absence of a rational connection for these claims against the

Region is provided by the plaintiff himself, Mr. Pearson. 84. Mr. Pearson resides within the geographical boundaries that establish the

putative class. However, there is no rational connection between him and the alleged misrepresentations or negligence of the Region. 85. Mr. Pearson pleaded in his statement of claim that there were misrepresentations

contained in a number of technical studies and documents:


54. In addition, the MOH [Medical Officer of Health] has repeatedly advised members of the

Class that emissions from the 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 innocent and/or negligent misrepresentations. 55. These misrepresentations include, but are not limited to misrepresentations 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.

- 32 Reference: Plaintiffs Motion Record, Volume II, Tab 1A, page 25. Fresh As Amended Statement of Claim, paras. 54-55.

86.

In paragraphs 33 and 34 of his affidavit, Mr. Pearson swore that the

misrepresentations were contained in a number of technical reports and studies. He reiterated this in his response to demands for particulars, in which he also stated that all class members were misled by the reports.
Reference: Plaintiffs Motion Record, Volume I, Tab 2, pages 16-18. Pearson Affidavit (Jan. 17, 2002), paras. 31-38. Plaintiffs Motion Record, Volume II, Tab 1D, page 94. Niagara Particulars Reply, para. 42. Plaintiffs Motion Record, Volume II, Tab 1D, page 88. Niagara Particulars Reply, para. 24. Plaintiffs Motion Record, Volume II, Tab 1D, page 95. Niagara Particulars Reply, para. 45.

87.

Despite swearing in his affidavit that he was misled and induced by the

representations contained in the reports, he admitted on cross-examination that he had not read any of them:
CROSS-EXAMINATION BY MR. COOP: 102 Q. . . . Mr. Pearson, could I ask you to look at paragraphs 33 and 34 of your affidavit, please. A. 33 and 34? MR. BAERT: It starts here. THE DEPONENT: Yes, sir. BY MR. COOP: 103 Q. Those two paragraphs contain a long list of Ministry of Environment reports and there is also a couple of letters thrown in there. Have you read all of these reports? A. No, I haven't, sir. MR. GILLESPIE: Has anybody? BY MR. COOP: 104 Q. Have you read any of these reports? A. No, sir.

- 33 -

Reference:

Pearson cross-examination dated January 17, 2002. Questions 102-104, pages 30-31.

88.

Apart from any issues of credibility, the foregoing demonstrates the lack of any

rational connection between the class as defined and the alleged common issues against the Region. Mr. Pearsons evidence demonstrates that not all of the putative class members who live within the geographic boundaries will have any cause of action against the Region for either negligence or negligent misrepresentation. Because the class is defined in geographic terms it arbitrarily includes too many individuals, such as Mr. Pearson, who have no claim against the Region. 89. In the Hollick case, the Supreme Court noted that it is much more difficult to

prove the rational connection in an environmental-type case than product liability other types of claims. The court specifically noted that the class cannot be overly broad by the inclusion of people such as Mr. Pearson who have no claim against the Region. 90. The definition of the putative class is therefore deficient, at least insofar as it

relates to the Region. There is simply no rational connection between the putative members and the alleged torts of negligence and negligent misrepresentation. This is because the class is defined on geographic terms, and does not have any other limitations with respect to these specific torts alleged against the Region. 91. The class is therefore overly broad and, pursuant to Hollick, ought not be certified

as it is defined.

D.

THERE ARE NO COMMON ISSUES RELATING TO THE REGION. (i) Definition of common issues.

92.

The plaintiff must prove that the claim against and defences of the Region raise

common issues. It is insufficient that the plaintiff has common issues against other defendants. The plaintiff must prove that there are common issues with respect to the claim against the Region.

- 34 93. A common issue is defined as 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.
Reference: Regions Book of Authorities, Tab 1. Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 1 common issues.

94.

At this point, it is again important to recall the allegations against the Region. Rather, the plaintiff

The plaintiff is not alleging that the Region emitted pollutants.

pleads that the Medical Officer of Health was negligent in dealing with the claim and that she negligently misrepresented facts to the putative class. (ii) 95. No common issue regarding allegations of negligence.

The plaintiff has stated the following common issue against the Region:
Did the Regulators owe a duty of care to the class to prevent the ongoing discharge of the contaminants by Inco, and if so, what duty was owed?

96.

The mandatory duties of the Medical Officer of Health were reviewed above at

paragraph 10. There is no mandatory duty which permits the Medical Officer of Health to prevent Inco from discharging contaminants. There is simply no mandatory statutory authority to do so, and the Medical Officer of Health can only act pursuant to the statute. 97. There is a discretionary power with respect to issuing orders. As discussed

above, however, the Medical Officer of Health chose to take other steps within her power. There is no pleading or evidence that there was an improper exercise of

statutory discretion. In fact, there is not even a stated common issue regarding the exercise of discretion. 98. To prove a claim in negligence, the plaintiff must satisfy the following elements: (a) (b) (c) (d) A duty of care exists; The Region breached the standard of care; The plaintiff sustained damage; The Region caused the damages; and

- 35 (e) The damages were sufficiently foreseeable by the defendant to be compensable.

99.

In this case, the elements of negligence do not raise common issues.

As

discussed above, the Region does not owe a duty of care of the type alleged by the plaintiff, and this cannot be a common issue. 100. Apart from this, there are other reasons why the negligence allegation does not The Medical Officer of Health can only act pursuant to the

raise common issues.

authority granted by the HPPA. The application of the various mandatory duties and discretionary powers to each putative class member would vary, depending on the specific details of the bodily injury and property damage claims advanced. 101. In particular, the quantum of damages will obviously vary for each class member.

While the Class Proceedings Act, 1992 acknowledges that certification will not be denied solely because damages need to be assessed individually, the plaintiff has proposed no workable method to quantify damages. The end result is that there will be individual trials in any event on the issue of damages. 102. With respect to the bodily injury claims, individual trials will be required to

determine whether the alleged negligence of the Medical Officer of Health caused damage to the putative class members. The court will have to consider the types of injuries allegedly sustained, each class members medical history, risk factors and exposure rates, and a myriad of other issues to determine causation. 103. With respect to the property damage and agricultural claims, there can be no This is because the Medical

common issue against the Medical Officer of Health.

Officer of Health can only act pursuant to her statutory duties and powers. Those duties and powers relate only to health hazards, as described in paragraph 9 above, and do not extend to the property damage or agricultural claims. Accordingly, there can be no common issue with respect to these claims against the Medical Officer of Health.

- 36 104. In addition, the property damage and agricultural claims would not raise common

issues for other reasons. The quantity and species of nickel varies from property to property, and each class members claim will be different. The proposed class

members will also have to show how the Medical Officer of Healths alleged negligence or misrepresentation contributed to the harm, and this will vary for each class member. 105. The Region also adopts the submissions contained in the Factums of Inco and

Her Majesty on the absence of common issues related to negligence. (iii) 106. No common issue misrepresentation. regarding allegations of negligent

The plaintiff states the following common issue relating to negligent

misrepresentation:
(iv) 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?

107.

As noted above in paragraphs 85-87, the plaintiff alleges that the Medical Officer

of Health made negligent misrepresentations to the putative class members in a number of reports and studies. 108. Before analyzing the legal issues relating to the alleged misrepresentations, it is

first necessary to clarify the facts. (a) All but two of the reports were written by the MOE. The Region was only involved in two of the reports, that is the Health Study Assessments in the May 1997 and January 2000 MOE reports. The plaintiff issued the statement of claim on March 26, 2001, and that pleading contained a pleading of negligent misrepresentation. Despite this, the majority of the reports, studies, and press releases relied upon by the plaintiff regarding the alleged misrepresentation were actually issued after March 26, 2001. The plaintiff cannot, therefore, have relied upon or been induced by the statements made after he commenced an action for negligent misrepresentation.
Reference: Pearson cross-examination, Q. 245, p. 54.

(b)

- 37 (c) The plaintiff admitted that by the time the statement of claim was issued on March 26, 2001, he did not trust and was skeptical of the defendants. Again, he could not have been induced to rely upon any representations after that date.
Reference: Pearson cross-examination, Q. 247-249, p. 55.

(d)

The Region adopts Her Majestys submissions on the distribution of the reports and that there are no misrepresentations contained in the reports. In particular, the Region repeats that the material does not contain the statements that: (i) (ii) that the emissions from the refinery have not posed any immediate risk, or any risk, to human health; or one of the substances the putative class members was and are being exposed to is nickel, and not the known human carcinogen nickel oxide;

109.

Mr. Pearson must prove five elements to establish liability for negligent

misrepresentation: (a) (b) (c) (d) (e) there must be a duty of care based on a "special relationship" between the representor and the representee; the representation in question must be untrue, inaccurate, or misleading; the representor must have acted negligently in making said misrepresentation; the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and the reliance must have been detrimental to the representee in the sense that damages resulted.
Regions Book of Authorities, Tab 8. Queen v. Cognos Inc. (1993) 99 D.L.R. (4th) 626 at 643 (S.C.C.) Regions Book of Authorities, Tab 9. Hercules Management Ltd. v. Ernst & Young (1997), 146 D.L.R. (4th) 577 (S.C.C.)

Reference:

- 38 110. Class proceedings for negligent misrepresentation are generally inappropriate,

due to the large number of individual issues. Mr. Justice Cumming noted the following in Williams v. Mutual Life Assurance Co.:
Negligent misrepresentation is a cause of action that is very problematic in seeking certification of a common issue for class members. Proof is generally dependent upon a multitude of circumstances specific to the individual members. The result of the trial of any one alleged misrepresentation to a claimant cannot generally stand as proof of the cause of action of any other claimant. The outcome of class members' claims based upon alleged negligent misrepresentations depends upon a myriad of individual evidentiary factors. Reference: Regions Book of Authorities, Tab 10A and B. Williams v. Mutual Life Assurance Co. (2000), 51 O.R. (3d) 54 at 61-62 (S.C.J.), affd (2001), 152 O.A.C. 344 (Div. Ct.).

111.

This is particularly true where, as in the within action, the plaintiff alleges that the

misrepresentations were made in numerous forms (reports, letters, news reports, and meetings) at different times to different people. The court in Controltech Engineering Inc. v. Ontario Hydro declined to certify a class action for misrepresentation where the putative representative plaintiff relied upon many different alleged misrepresentations, as opposed to a single statement made by the defendant:
While there is a common factual core to the claims of the various bidders, I am not persuaded that this common core amounts to a common issue for the purposes of s. 5. In particular, I fail to see how the proposed common issues would resolve anything that would "move the litigation forward" in as much as it would still be necessary to examine what was said to each individual bidder with respect to each individual claim. This is not a case that lends itself to determination of the discrete issues of misrepresentation and negligence or recklessness, leaving cleanly for individual consideration the issue of reliance on the specific statement dealt with at the common issue stage. Here, the facts and issues cannot be broken down into appropriate and distinct categories that would allow the case to proceed in that manner. No single or common statement can be identified as having been made at the same time, or in a sufficiently similar context, and because different statements were made to various class members at various stages of the bidding process and in relation to various proposals, it would be necessary to determine on an individual basis precisely what the individual bidder was told. The plaintiff simply cannot escape the consequences of the fact that claims do not all flow from the same misrepresentation. I conclude, accordingly, that there is no common issue with respect to the claims for misrepresentation. Reference: Regions Book of Authorities, Tab 11. Controltech Engineering Inc. v. Ontario Hydro, [1998] O.J. No. 5350 at para. 16 (Gen. Div.).

112. Inc.:

Mr. Justice Winkler came to the same conclusion in Mouhteros v. Devry Canada

- 39 I agree that misrepresentation might, in some cases, constitute a common issue in a class proceeding. However, in Abdool, the representation complained of was contained in a single letter. In contrast, in the present case, the various representations were published by the defendant in 67 different television commercials and 30 different newspaper advertisements, or were made verbally by some 122 admissions officers over a six-year period. The nature of the representations made in DeVry's advertising and promotions, the questions of whether the representations were false and misleading, and whether they were made negligently or fraudulently will very according to the content of the advertisement or the statements made by the admissions officer, the time at which it was published or communicated, the program of study undertaken by each individual student, and the conditions then extant at each of the DeVry campuses. Reference: Regions Book of Authorities, Tab 12. Mouhteros v. Devry Canada Inc. (1998), 41 O.R. (3d) 63 at 70-71 (Gen. Div.).

113.

Mr. Pearson alleges that many misrepresentations were made in various forms at

different times. Obviously not all of the class members were aware of or relied on all of the misrepresentations, as indicated by his own experience. In his case, he admitted on cross-examination that he had never read the reports which are alleged to contain the misrepresentations. 114. The allegations of negligent misrepresentation are not common due to the large

number of individual issues relating to the constituent elements of whether the misrepresentations were made, when they were made, when the class members heard of the representations, and whether there was any reliance. The Region also adopts Her Majestys analysis regarding the individual issues for the alleged

misrepresentations. It is therefore not suitable to be tried as a class proceeding.

E. 115.

PREFERABLE PROCEDURE. The Class Proceedings Act, 1992 is a procedural statute that does not offer

substantive remedies. It establishes one method of resolving disputes between large numbers of people. 116. The Act is obviously not the sole method for dispute resolution, and it is but one

of many options. At the certification motion, the plaintiff must prove that a class action is the preferable method of proceeding with the dispute resolution.

- 40 117. The Region adopts the submissions of Inco and Her Majesty that a class

proceeding is not the preferable method of resolving this matter. 118. The Region also submits that a class proceeding in this case would not

accomplish the goal of judicial economy because there are too many individual and complex issues arising out of different facts for each claimant, and involving different issues and facts for each defendant. There should also be no concern with modification of the Regions behaviour. The Medical Officer of Health has acted continuously and appropriately pursuant to her statutory duties and powers, and behaviour modification is not necessary. 119. The Region repeats the submissions of Inco and Her Majesty that the plaintiff

cannot show that a class action is preferable to other procedures and the utility of the CBRA.

F. 120.

PLAINTIFF NOT AN APPROPRIATE CLASS REPRESENTATIVE. The Region adopts the submissions of Inco and Her Majesty that the plaintiff is

not an appropriate representative for the class.

G. 121.

LITIGATION PLAN. The Region adopts the submissions of Inco and Her Majesty regarding the

inadequacies in the plaintiffs litigation plan. In particular, there is no workable way to manage all of the individual issues relating to causation and damages.

PART IV - ORDER REQUESTED 122. The Region therefore requests that the certification motion be denied with costs.

- 41 -

ALL OF WHICH IS RESPECTFULLY SUBMITTED

May 31, 2002 Cassels Brock & Blackwell LLP Barristers & Solicitors Scotia Plaza, Suite 2100 40 King Street West Toronto, Ontario M5H 3C2 B. Robin Moodie LSUC#: 25459J Tel: (416) 869-5734 Fax: (416) 360-8877 Thomas J. Donnelly LSUC#: 42228J Tel.: (416) 860-2954 Fax: (416) 360-8877 Solicitors for the Defendant The Regional Municipality of Niagara

SCHEDULE A LIST OF AUTHORITIES 1. 2. Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5. A. B. C. D. E. 3. 4. 5. 6. 7. 8. 9. 10. Health Protection and Promotion Act, R.S.O. 1990, c. H.7. Health Protection and Promotion Act, S.O. 1983, c. 10, s. 94. Public Health Act, R.S.O. 1980, c. 409, s. 46. Public Health Act, S.O. 1974, c. 87, s.2. Public Health Act, R.S.O. 1970, c. 377, s. 42.

Hollick v. Toronto (City) (2001), 205 D.L.R. (4th) 19 (S.C.C.) Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 (S.C.C.). Mortgage Brokers Act, R.S.B.C. 1996, c. 313, s. 20. Edwards v. Law Society of Upper Canada (2001), 206 D.L.R. (4th) 211 (S.C.C.). Western Canadian Shopping Centres Inc. v. Bennett Jones Verchere (2001), 201 D.L.R. (4th) 385 (S.C.C.). Queen v. Cognos Inc. (1993), 99 D.L.R. (4th) 626 (S.C.C.). Hercules Management Ltd. v. Ernst & Young (1997), 146 D.L.R. (4th) 577 (S.C.C.). Williams v. Mutual Life Assurance Co. A. B. (2000), 51 O.R. (3d) 54 (Gen. Div.) (2001), 152 O.A.C. 344 (Div. Ct.).

11. 12.

Controltech Engineering Inc. v. Ontario Hydro [1998] O.J. No. 5350 (Gen. Div.). Mouhteros v. Devry Canada Inc. (1998), 41 O.R. (3d) 63 (Gen. Div.).

INCO LIMITED et. al. PEARSON and Plaintiff Defendants

Court File No: 12023/01

ONTARIO SUPERIOR COURT OF JUSTICE


Proceeding commenced at WELLAND

FACTUM OF THE DEFENDANT THE REGIONAL MUNICIPALITY OF NIAGARA (Certification motion returnable June 3-7, 2002)

Cassels Brock & Blackwell LLP Barristers & Solicitors Scotia Plaza, Suite 2100 40 King Street West Toronto, Ontario M5H 3C2 B. Robin Moodie LSUC#: 25459J Tel: (416) 869-5734 Fax: (416) 360-8877 Thomas J. Donnelly LSUC#: 42228J Tel: (416) 860-2954 Fax: (416) 360-8877 Solicitors for the Defendant, The Regional Municipality of Niagara