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

FACTUM OF THE CORPORATION OF THE CITY OF PORT COLBORNE

(Certification Motion June 3-7, 2002) PART I NATURE OF THE MOTION

1.

The Plaintiff is seeking to certify the within proceedings as a class action pursuant to the

Class Proceedings Act, 1992.

2.

The Corporation of The City of Port Colborne (hereinafter the City) opposes the

Plaintiffs motion, in conjunction with all of the other Defendants in this action (with the exception perhaps of The District School Board of Niagara and The Niagara Catholic District School Board, who have recently entered into a memorandum of understanding with the Plaintiff).

-23. From the Citys perspective, assuming the Plaintiff even has a cause of action as against

it, which is disputed, the matters at issue in this case are wholly unsuitable for adjudication through the procedural mechanisms afforded by the Class Proceedings Act, 1992, S.O. 1992, c. 6 (hereinafter the CPA).

4.

With approximately 20,000 proposed class members, adjudication of their claims will by

necessity be as individualized as the individuals themselves. The City submits that this action will be dominated from start to finish by a myriad of individual issues, including but not limited to property-by-property soil sampling and analysis, assessment of the individual risk factors for various alleged illnesses, assessment of residential property value impacts, adjudication of alleged subsidence to homes attributed by the Plaintiff to purge wells operated by Inco Limited (hereinafter Inco), assessment of crop impacts, exploring the knowledge of individual class members at any given time with respect to contamination issues, and/or their reliance on (mis)representations allegedly made by the City and/or other Defendants.

5.

In stark contrast to the bleak prospect of litigating literally thousands of significant

individual issues, the Community Based Risk Assessment (hereinafter the CBRA) is a comprehensive, consultative process supported by the community at large and is ideally suited to address environmental contamination concerns in the City of Port Colborne and the legacy of heavy industry in the community. With the support of all stakeholders, including the Ministry of Environment (hereinafter the MOE) and its regulatory regime, the CBRA will ultimately result in remediation to individual properties as required and ensure that the City as a whole will be safe for development and use.

-3PART II THE FACTS The History of the Inco Refinery and Emissions 6. The longstanding history of the Inco refinery in Port Colborne has been set out in detail

in the factum delivered by Inco at paragraphs 19 through 25. The City does not propose to duplicate that history herein and adopts those submissions for the purposes of this motion.

7.

The City notes in particular the submission in Incos factum at paragraph 24 that 97% of

total nickel emissions deposited in the area surrounding the refinery occurred prior to 1960 and that emissions since 1984 have been negligible and have not measurably impacted upon the chemical composition of surrounding lands. Reference: Incos Factum, paragraph 21 (See Incos footnote no. 8 on p. 10).

The Citys Awareness of Inco-Related Contamination 8. In or about October 1997, the MOE, in response to a request for comments in relation to

draft official plan policies submitted to the MOE by the City, first notified the Citys Director of Planning that properties with elevated levels of nickel, copper and cobalt should be treated as contaminated lands, requiring assessment and remediation prior to any development. Reference: Affidavit of Charles Miller, Responding Motion Record of the City, Tab 2, para. 4.

9.

Previously, there was a general but non-specific awareness of Inco-related contamination,

and some discussion between the City and the MOE and/or the City and individual residents regarding concerns of Inco-related contamination in the 1990s prior to 1997. Such discussions were in the context of a few specific individual applications for development/rezoning.

-4However, the City was not directed by the MOE until October 1997 to treat lands with elevated levels of nickel, copper and cobalt as contaminated for land planning and development purposes. Reference: Affidavit of Charles Miller, Responding Motion Record of the City, Tab 2, para. 4, Transcript of the Cross-Examination of Charles Miller, April 30, 2002, question 152, page 49 and pages 22-26. Port Colbornes Environment and Current Conditions 10. The City has not performed any sampling nor retained any experts to comment on soil

conditions, ambient air levels, the relative distribution of nickel and other contaminants of concern in the community or the impact on the health and wellbeing of residents. The City relies upon the submissions of Inco, the MOE and the Regional Municipality of Niagara in their respective factums in this regard.

CBRA 11. CBRA. Inco has outlined in great detail throughout its factum the purpose and benefits of the The City adopts Incos submissions in that regard and will expound on those

submissions further when it addresses the preferable procedure criterion set out in s. 5(1)(d) of the CPA.

12.

Of particular significance to the City is the tremendous public involvement in the CBRA

and its accountability to the Citys constituents, the residents of Port Colborne. In 2000, the City Council established a Public Liaison Committee (hereinafter the PLC) attached to the CBRA. The PLC is a committee made up of residents from varying backgrounds to reflect wide-ranging community interests, with the express purpose of representing the interests of the community at large. Its role is to solicit public input, inform the public, monitor the progress of the CBRA and

-5provide input to Inco and the MOE, with the expert advice of the PLCs technical expert, Beak International (hereinafter Beak), relating to the Technical Scope of Work and overall conduct of the CBRA. Reference: Affidavit of Charles Miller, Responding Motion Record of the City, Tab 2, para. 6, Affidavit of Paul Dayboll, Responding Motion Record of the City, Tab 1, para. 4.

13.

In the wake of criticisms levelled at the PLC and the CBRA by the Plaintiffs witness,

Ellen Smith, who is not a member of the PLC and resides in the Rodney Street community, where residents interests are acutely divergent from those of the community at large, a longstanding member of the PLC by the name of Mr. Paul Dayboll came forward to make his views known to this Honourable Court and to dispel the inaccuracies contained in Ms. Smiths affidavit. Reference: Affidavit of Paul Dayboll, Responding Motion Record of the City, Tab 1.

14.

The relative progress of the CBRA, which the Plaintiff criticizes has been fraught with

delay, is not a reflection of a flawed process in the opinion of Mr. Dayboll, who has been a member of the PLC since its inception. On the contrary, it is a testament to the vigilance of the PLC and its consultant, Beak, in participating in and overseeing the CBRA on behalf of the community, including the PLCs active participation in the formulation of the Technical Scope of Work and investigation of Chemicals of Concern. The timetable has been largely dictated by the amount of debate between the PLC and its consultant and the other stakeholders in the CBRA process, which Mr. Dayboll views as a positive indication of the important ongoing dialogue between all stakeholders to come up with the best process for a solution to environmental contamination concerns in Port Colborne.

-6Reference: Affidavit of Paul Dayboll, Responding Motion Record of the City, Tab 1, para. 6.

15.

The CBRA process is transparent and fully accessible to the public through public PLC

and TLC (Technical Sub-Committee) meetings, PLC-sponsored drop-in centres and update meetings to allow for community comment, drop-in forums with consultants involved in the CBRA, community input sessions, the availability of key reports in the public library and posting of PLC minutes on the Citys website. As a result, community participation has been a key component in the PLC process from its inception, and the PLC has played a crucial role in overseeing the CBRA, communicating community concerns to Inco and the MOE and their respective consultants, and ensuring through the PLCs expert that the process remains committed to developing the best solution possible - with the best science available - to environmental contamination concerns in Port Colborne. Reference: Affidavit of Paul Dayboll, Responding Motion Record of the City, Tab 1, paras. 7-14.

PART III - ISSUES AND THE LAW 16. (a) (b) Does the claim disclose a cause of action as against the City? Is there an identifiable class of two or more persons that would be represented by Mr. Pearson? Do the claims of the class members raise common issues as against the City?

(c )

(d)

Would a class proceeding be the preferable procedure for the resolution of common issues as against the City? Is Mr. Pearson an appropriate representative? In particular, would he fairly and accurately represent the interests of the class? Has he produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf

(e)

-7of the class? Does he have, on the common issues, an interest in conflict with the interests of other class members?

(a)

Does the Claim Disclose a Cause of Action as Against the City?

17.

The City recognizes that in determining whether the Plaintiffs claim discloses a cause of

action as against it, the pleadings must be accepted as true. The criterion under s. 5(1)(a) of the CPA is essentially governed by the plain and obvious test (i.e., the claim should only be struck where it is plain and obvious that no cause of action is disclosed).

18.

Notwithstanding the relatively low threshold that the Plaintiff is required to meet under s.

5(1)(a), it is respectfully submitted that the claims as against the City disclose no cause of action and, accordingly, the Plaintiff should fail on its motion to certify the action as against the City.

19.

The claim against the City is framed in negligence, the particulars of which are set out in

paragraph 11 of the Plaintiffs Fresh as Amended Reply to the Citys Demand for Particulars. Those particulars can be classified into the following general groupings: failing to investigate and monitor the effects of the Inco refinery, failing to notify the residents of contamination of lands, failing to respond to public complaints, permitting residents to use property owned or operated by the City and passing by-laws and granting approvals for development. Reference: Fresh as Amended Reply to Demand for Particulars of the City, para. 11.

20.

Mr. Pearson alleges, inter alia, that the City knew or ought to have known of some or all

of the damage that the ongoing release of contaminants and other activities at the Inco refinery

-8caused (and continues to cause) to proposed class members. Despite such knowledge, however, the City allegedly failed to apply and/or enact by-laws to prevent such damage to the health and property of residents of Port Colborne. Reference: Fresh as Amended Statement of Claim, paras. 22 and 23.

21.

In the Plaintiffs Fresh as Amended Reply to the Citys Demand for Particulars, the

Plaintiff sets out the particulars of his allegation as to what steps the City allegedly failed to take to protect the health and property of the residents. Specifically, he relies on section 102 of the Municipal Act, R.S.O. 1990, c.45, which permits municipalities to pass such by-laws and make such regulations for the health, safety, morality and welfare of the inhabitants of the municipality in matters not specifically provided for by this Act and for governing the conduct of its members as may be deemed expedient and not contrary to law. Mr. Pearson also cites section 210(140) of the Municipal Act, which permits councils of local municipalities to pass by-laws for prohibiting and regulating public nuisances. Reference: Fresh as Amended Reply to Demand for Particulars of the City, para. 3.

22.

The Plaintiff relies on two specific time frames as they relate to the alleged liability on

the part of the City. First, he alleges that since 1959, the City knew or ought to have known of damage caused by the refinery, and that it was within the Citys power and mandate to enact such by-laws and/or regulations pursuant to the Municipal Act. Second, he asserts that the City has certain powers under the Planning Act and the Municipal Act to grant approvals, provide zoning and issue building permits. With respect to the latter, the Plaintiff alleges that since at least 1998, the City has been aware of information from Inco that large portions of the City were

-9contaminated and that the City knew or ought to have known that such contamination could cause adverse effects. Nevertheless, the City failed to advise the residents of these facts, but continued to grant approvals, provide zoning and issue building permits as part of its normal operations, with knowledge that the lands were compromised. In addition, Mr. Pearson alleges that the City owns and operates parks and recreational facilities and permitted residents to utilize these areas without taking steps to investigate, monitor or protect the proposed class members. Reference: Fresh as Amended Reply to Demand for Particulars of the City, paras. 4, 6, 8 and 12.

23.

The City submits that it is well established in Canada that a municipality (or government

actor) is not liable in negligence for policy decisions, but only for operational decisions on the basis that policy is the prerogative of the elected legislature. Accordingly, it is inappropriate for courts to impose liability for a particular policy decision or to second-guess legislators on matters of policy. Reference: Cooper v. Hobart [2001] S.C.J. No. 76 (S.C.C.), Citys Brief of Authorities, Tab 1.

24.

Having regard to the Plaintiffs allegations, Mr. Pearson asserts, inter alia, that the City

of Port Colborne should have exercised its permissive powers under the Municipal Act to enact by-laws for the protection of the residents of Port Colborne. It is respectfully submitted that the decision not to enact by-laws is a governmental policy decision and not an operational one. As such, on the face of the Plaintiffs pleading, it is plain and obvious that he cannot succeed against the City with respect to those claims. Reference: Cooper v. Hobart [2001] S.C.J. No. 76 (S.C.C.), The Citys Brief of Authorities, Tab 1.

- 10 25. Furthermore, to the extent that some municipal decisions called into question by the

Plaintiff were operational and not policy decisions (and thus not necessarily insulating the City from liability), the City respectfully submits that prima facie there is not sufficient proximity between the alleged harm and the issuance of permits, the use of parks and facilities and the enactment of by-laws to establish a prima facie duty of care owed by the City (particularly when 97% of the Inco-related contamination was sustained prior to 1960). Reference: Cooper v. Hobart [2001] S.C.J. No. 76 (S.C.C.), The Citys Brief of Authorities, Tab 1, Incos Factum, para. 21.

(b)

Is There an Identifiable Class of Two or More Persons That Would Be Represented by Mr. Pearson?

26.

The City does not dispute that the proposed class as set out in the Fresh as Amended

Statement of Claim is defined by objective criteria and is not merit-driven or circular. However, it respectfully submits that there is no rational connection between the class definition and the common issues in this case. Furthermore, the definition is overly broad.

27.

In Hollick v. Toronto (City), 205 D.L.R. (4th) 19 (2001), McLachlin C.J.C, delivering the

decision for the Supreme Court of Canada, stated at page 31:

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 should be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended: seeWebb v. K-Mart Canada Ltd. (1999), 45 O.R. (3d) 389Mouhteros v. DeVry Canada Inc., (1998), 41 O.R. (3d) 63 (Ont. Ct. (Gen. Div.)).

- 11 Reference: Hollick v. Toronto (City), 205 D.L.R. (4th) 19 (2001) at p. 31, Plaintiffs Book of Authorities, Tab 2.

28.

Implicit in the identifiable class criterion is the requirement that there be some rational

relationship between the class and the common issues. Reference: Hollick v. Toronto (City), 205 D.L.R. (4th) 19 (2001) at p. 31, Plaintiffs Book of Authorities, Tab 2. 29. Turning to the definition of the class, as defined by Mr. Pearson, there are numerous

proposed class members who would have no likelihood of success against the City, let alone against the other Defendants. For example, residents living in the western portion of Port Colborne, where little or no contamination has been identified by MOE testing, have no likelihood of success in this action and should not properly form part of the class. That being said, even within the Rodney Street area, soil sampling has demonstrated the sporadic or patchy nature of the contamination. The City submits that it would be virtually impossible to alter the parameters of the class definition without excluding certain residents who may properly form part of an identifiable class and without including residents who have no claims whatsoever against any of the Defendants. Reference: Conard Affidavit, paras 27-28, Incos Responding Motion Record, Vol I, tab 1, pp. 13-14.)

30.

The City submits that the Plaintiff faces an impossible task of defining the class in an - either geographically or temporally Respectfully, this

objective manner that has any rational connection

between the class definition and the common issues in this litigation.

highlights the inappropriateness of a class proceeding for addressing the types of concerns expressed by Mr. Pearson in this lawsuit.

- 12 -

(c )

Do the Claims of the Class Members Raise Common Issues as against the City?

31.

The Plaintiff asserts that the common issues as against the City are the Citys knowledge

of contamination and its subsequent conduct. Reference: Plaintiffs factum, para. 118, page 37.

32.

In the Citys respectful submission, those issues may very well be common to proposed

members of the class, but their determination will not significantly advance Mr. Pearsons claims or the claims of any other proposed class members. Moreover, the existence of common issues cannot be looked upon without regard to the individual issues in considering whether a class proceeding is a preferable method for advancing the claim. Reference: Hollick v. Toronto (City), 205 D.L.R. (4th) 19 (2001) at p. 31, Plaintiffs Book of Authorities, Tab 2, page 35 and 36.

33.

Delivering the decision for the Supreme Court of Canada, McLachlin C.J.C. in Hollick

commented that in the circumstances of that case any common issue was negligible in relation to the individual issues, stating at p. 36: While each of the class members must, in order to recover, establish that the Keele Valley landfill emitted physical or noise pollution, there is no reason to think that any pollution was evenly distributed across the geographical area or time period specified in the class definition. On the contrary, it is likely that some areas were affected at one time while other areas were affected at other times.Some class members are close to the site, some are further away. Some class members are close to other possible sources of pollution. Once the common issue is seen in the context of the entire claim, it becomes difficult to say that resolution of the common issue will significantly advance the action. Reference: Hollick v. Toronto (City), 205 D.L.R. (4th) 19 (2001) at p. 31, Plaintiffs Book of Authorities, Tab 2, page 36.

- 13 -

(d)

Would a Class Proceeding be the Preferable Procedure for the Resolution of Common Issues as Against the City?

34.

A class proceeding is not the preferable procedure for resolving the common issues in

this case, and the City concurs with and adopts the submissions of its co-Defendants with respect to the innumerable individual issues and the extensive processes that will necessarily be involved in the determination of liability and damages as against any and all of the Defendants.

35.

Insofar as the City is concerned, the common issue as to what the City knew about

Inco-related contamination at any given time will not significantly advance Mr. Pearsons claim or the claim of any other proposed class member.

36.

One of the claims asserted by the Plaintiff against the City is that it continued to issue

building permits and zoning approvals after 1998 when it knew or ought to have been aware of contamination from the Inco refinery. The Plaintiff further asserts that had the City informed residents, they would not have undertaken the developments in question and would thereby have avoided certain financial losses after the September 2000 announcement concerning Inco-related contamination and/or would have avoided health risks associated with the construction in question. Reference: Plaintiffs Reply to the Citys Demand for Particulars, paras 4 and 7.

37.

The determination of liability on the above-noted theory will require an extensive

examination of every permit issued, its circumstances, whether the lands in each and every case were contaminated, whether the City breached a duty of care in issuing the permit or approval,

- 14 what knowledge the applicant had of Inco-related contamination at the time of the application for the permit, how that individual would have acted differently had he known of the environmental status of the lands in question, what damages the individual has sustained to health or property as a result thereof and their causal connection, if any, to the conduct of the City.

38.

With respect to the allegation that the City continued to permit use by residents of parks

and recreational facilities owned or operated by the City, the determination of whether the City had the power to prohibit such use may be a common issue, but it will not assist this Honourable Court in the step-by-step analysis that will be required in order to establish liability on the part of the City for any failure to prohibit such use. This will require, inter alia, soil sampling of all of the sites in question, whether the City breached a duty of care at any given time by failing to take steps to prohibit use of its public parks and facilities, the frequency of use of those parks or facilities by individual class members, risk factors for developing the particular illnesses alleged by class members, and the causal connection, if any, between use of that park or facility and the individuals damages.

39.

The City submits that the adjudication of 20,000 class members claims will require

thousands of trials to determine liability and damages with respect to the allegations against the City. With theoretically as many distinct trials as members of the class, one of the chief objectives of the CPA - judicial economy - would militate against certification in this case.

40.

The individual issues are not minor matters that will be amenable to mini-discovery or

mini-hearings. Rather, the individual issues will dominate the hearing of each and every class

- 15 members case. Having regard to the negligible role that the determination of the common issues will play in this lawsuit, and the overarching objectives of the CPA including access to justice and judicial economy - a class proceeding is clearly not the preferable procedure for adjudicating the Plaintiffs claims.

41.

The onus rests with the Plaintiff to prove to this Honourable Court that the class action is

preferable to other available procedures. In other words, the Defendants need not prove that the CBRA is preferable. Nevertheless, it is respectfully submitted that the CBRA is a far superior method for addressing the communitys environmental contamination concerns relating to the Inco refinery. Indeed, with ongoing involvement and support from Inco, the MOE, the Regional Municipality of Niagaras Public Health Department, and the community at large through the PLC, the CBRAs co-operative, consultative, community process will provide an effective and workable process for developing a solution to environmental contamination relating to Inco emissions in the community. Reference: Affidavit of Charles Miller, Responding Motion Record of the City, Tab 2, para. 8, Affidavit of Paul Dayboll, Responding Motion Record of the City, Tab 1, para. 14, Reference: Hollick, supra, Plaintiffs Brief of Authorities, Tab 2.

42.

With respect to the third objective of the CPA promoting behaviour modification - the

City respectfully submits that a class proceeding is not the most efficient method for promoting this goal having regard to the unique circumstances in Port Colborne. In particular, this case relates not to current industrial activities but to the legacy of historical emissions in a by-gone era of heavy industrialization. Second, by voluntarily initiating and funding the CBRA process, Inco has already recognized its historical role with respect to environmental contamination in Port

- 16 Colborne and is offering a solution on a no-questions-asked basis for the benefit of the entire community. Throughout this process, Inco, the MOE, the Regional Municipality of Niagara and the City through its ongoing administrative support of the PLC have consistently demonstrated responsible behaviour and attitudes in their respective corporate, regulatory and municipal roles.

(e)

Is Mr. Pearson an appropriate representative? In particular, would he fairly and accurately represent the interests of the class? Has he produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class? Does he have, on the common issues, an interest in conflict with the interests of other class members?

43.

In assessing whether the proposed representative is adequate, the Court may look to the

motivation of the representative, the competence of his counsel and the capacity of the representative to bear any costs that may be incurred by the Plaintiff in particular (as opposed to by counsel or class members generally). The proposed representative need not be typical of the class nor the best possible representative. Nevertheless, the Court should be satisfied that the proposed representative will vigorously and capably prosecute the interests of the class. Reference: Western Canadian Shopping Centres v. Dutton, [2001] 201 D.L.R. (4th) 385 (S.C.C.) Plaintiffs Brief of Authorities, Tab 1.

44.

The City concurs with the submissions made by Inco at paragraphs 151 to 157 of its

factum that Mr. Pearson has not shown that he can fairly and adequately represent the class in these proceedings. In particular, the City submits that Mr. Pearson is not an appropriate

representative, by virtue of his failure to demonstrate to this Honourable Court that he and/or his solicitors are committed to funding this process through to the end, which is especially

- 17 significant when the outcome of his prosecution of the common issues will be binding upon his fellow class members. Of equal importance, the City submits that Mr. Pearson has an

irreconcilable and fundamental conflict of interest with other members of the defined class.

45.

In Sutherland v. Canadian Red Cross Society (1994), 17 O.R. (3d) 645, Montgomery J.

rejected the Plaintiffs bid for certification. In so doing, the motions judge found that the proposed representatives were not proper representatives because neither of them was crossinfected. In other words, they were representative of the class, but not a particular sub-class. That argument was rejected by the motions court judge and on subsequent appeal in Anderson v. Wilson (1999) 175 D.L.R. (4th) 409, where the Ontario Court of Appeal recognized the existence of a subclass whose claims differed from the representatives. Reference: Sutherland v. Canadian Red Cross Society (1994), 17 O.R. (3d) 645, Citys Brief of Authorities, Tab 2, Anderson v. Wilson 175 D.L.R. (4th) 409, Plaintiffs Brief of Authorities, Tab 4.

46.

In the case of Port Colborne, we are not dealing with a sub-class but rather a group of

persons whose interests are so fundamentally in conflict with Mr. Pearson that they cannot be reconciled within the context of a class action suit. Specifically, Mr. Pearson resides in the Rodney Street area of Port Colborne, a neighbourhood that has been surrounded by heavy industry for the last 100 years. It differs from other neighbourhoods of Port Colborne, in its exposure to industry, low property values, unique soil conditions, and higher levels of contamination than elsewhere in the community. By contrast, in the western section of Port Colborne, the MOE has detected little or no contamination. Yet, those residents face

stigmatization and the potential loss of property value not by virtue of the alleged conduct of

- 18 any of the Defendants but by Mr. Pearsons attempt to paint the entire City as a hotbed of environmental contamination. Reference: 1999 MOE Phytotoxicology Soil Investigation, pp. 63-71; Inco Record, Vol I, Tab 1E, pp. 167-175. 47. To cite a further example of Mr. Pearsons conflict of interest with other members of the

class, Mr. Dayboll (the PLC member referred to in paragraph 13 herein) approached the Plaintiffs counsel after reading Ellen Smiths affidavit and asked him to assist him in preparing an affidavit to put before this Honourable Court. The Plaintiffs counsel was not prepared to have another class members voice heard whose views did not concur with those of Mr. Pearson or his witnesses and would not assist him. Refusing to be silenced, Mr. Dayboll a member of the proposed class - approached the Citys solicitors to assist him in bringing his views to the attention of this Court. As a result, he swore an affidavit to dispel the inaccuracies set out in Ms. Smiths affidavit, which was filed by the City in its responding motion record. Reference: Transcript of Paul Dayboll, pp. 2-10, 13, Responding Record of the City, Tab 1.

48.

The City submits that the inherent conflict of interest between Mr. Pearson and other

members of the class demonstrates to this Honourable Court not only the inappropriateness of Mr. Pearson as a class representative but is just one further example of how ill-suited the CPA scheme is to address the unique circumstances surrounding historical Inco emissions in Port Colborne.

- 19 PART IV- ORDER SOUGHT 49. The City of Port Colborne respectfully requests an order dismissing the Plaintiffs motion

for certification, with costs.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

____________________________________ Steven Stieber

_____________________________________ Michelle Brodey Counsel for the Defendant, The Corporation of the City of Port Colborne