December 12, 2005

Ont Court of Appeal certifies class action in Pearson v. Inco case

The Ontario Court of Appeal has certified a class action in the case of Pearson v. Inco, thus widening the opportunity for Ontario residents to launch class action lawsuits when they believe their property has been devalued. This decision allows residents of Port Colborne, Ontario to proceed with property devaluation claims in a long-standing dispute with Inco. The appeal court reversed lower court decisions which ruled a class action could not be brought.

Legal action was launched by Wilfred Pearson, acting on behalf of residents of the Port Colborne neighbourhood affected by contamination from Inco's nickel refinery, after a Ministry of Environment report released in September 2000 confirmed that nickel oxide emissions from the refinery, which ceased operation in 1984, had contaminated soils in the adjacent area, posing a threat to the environment and human health.

The Court of Appeal's reversal of lower court rulings was based largely on two important developments since those decisions were handed down. First, the appellant significantly narrowed his claim, from damages from the alleged adverse health effects of nickel oxide contamination to damages for the devaluation of real property values arising from soil contamination. The second development was a Court of Appeal decision, in December 2004, which suggested that a somewhat more liberal approach should be taken to certification of class proceedings.

Among the intervenors in the Pearson decision was the Environmental Commissioner of Ontario, represented by David Estrin, environmental law specialist for Gowling Lafleur Henderson LLP (Gowlings). The full text of the decision may be viewed on-line at www.ontariocourts.on.ca/decisions/2005/november/C42414.htm.

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