Court File No.

12023/01 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: 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 DEFENDANT INCO LIMITED (Class Certification Motion)

PART I OVERVIEW 1. For over a century, the City of Port Colborne has been home to industry.

Shipbuilding, steelmaking, nickel refining and many other medium and light industries fuelled the growth of the City. Port Colborne, like any urban area, is not the same place it was preindustrialization, economically, socially or environmentally. Port Colborne today is unique, however, in that one of its industrial citizens has stepped forward and launched a comprehensive process to scientifically assess and, if necessary, remediate its environmental legacy, a process the City itself, the Ministry of the Environment and the Regional Public Health Department actively support and endorse. Ironically, but not surprisingly, it is this citizen Inco and this pathbreaking commitment the Community Based Risk Assessment or CBRA that have been targeted and put in jeopardy by this proposed class proceeding.

-22. At any level of analysis, the claims asserted by the plaintiff are ill-suited for class

treatment and will be impossible to manage in a mass proceeding in a manner consistent with the substantive law and procedural fairness to those involved. Certification of a few common issues will do little to measurably advance the claims as a whole toward their ultimate resolution. Rather than further the goal of judicial efficiency, certification will create a monster of judicial complexity where literally hundreds of thousands of fact-intensive individual issues will have to be adjudicated and individual residents of Port Colborne will be forced to litigate complex and difficult-to-prove claims, at their own expense, or forever lose them. Any common issues will be negligible in relation to the scope, magnitude and cost of the individual issues to be resolved for each of the estimated 20,000 class members. Health Claims 3. There is no scientific evidence at all of adverse health effects in Port Colborne

attributable to nickel or any other metals in the general environment. On the contrary, Port Colborne has been and continues to be one of the most studied communities in Canada, and repeated health surveys have found no increased incidences of disease among Port Colborne residents. 4. Certain forms of nickel have been associated only with particular types of

respiratory cancer and only when inhaled regularly at extremely high workplace air concentrations. There is no scientific evidence that nickel in any form has ever caused cancer at anywhere near the levels found in ambient air and soils in Port Colborne. The undisputed scientific evidence is precisely to the contrary. 5. One of the leading studies upon which Health Canadas assessment of nickel is

based followed workers at the Port Colborne nickel refinery who were continuously exposed to

-3refinery dust containing the most potent form of nickel (found nowhere in Port Colborne today). Workers exposed to this nickel dust at air concentrations 100,000 times greater than the nickel present today in Port Colborne showed no increase in cancer rates. Only when workers at a different part of the facility were continuously exposed to air concentrations of nickel refinery dust over a million times greater than the nickel in ambient air in Port Colborne was any increase in cancer rates detected. 6. The plaintiffs material, nonetheless, continuously stresses one rhetorical point:

that certain nickel forms are generically classified as carcinogenic by Health Canada. In doing so, the plaintiff purposely ignores issues of potency, concentration and exposure and their relevance to the actual situation in Port Colborne and the claims asserted in this action. 7. One of the worlds foremost experts in nickel toxicology (and an independent

peer reviewer of the MOEs most comprehensive report to date regarding Port Colborne), Dr. Tor Norseth, believes that there is no risk of respiratory cancer at all from airborne nickel to anyone in Port Colborne. The plaintiffs risk assessor nevertheless calculates (by using a

disputed extrapolation model without analysis of the toxicological evidence) that cancer risks for some residents could be in the range of about 40 in a million. By contrast, Dr. George Becking, formerly Health Canadas chief of environmental and occupational toxicology, is in substantial agreement with Dr. Norseth and believes that any cancer risks from nickel in Port Colborne, if they exist at all, are less than 1 in one million. 8. With regard to soil nickel levels, there is no scientific association at all between

the ingestion of nickel in the soil and cancer. In fact, reports of any health effects resulting from the ingestion of nickel are extremely rare and relate to exposures on a scale massively higher than possible in Port Colborne. Nickel is ubiquitous in ordinary foods, and one ingests much

-4more nickel in a day from eating a small hamburger and french fries than from being daily exposed to the highest level of nickel ever found on a Port Colborne property. 9. Devoting a proceeding to adjudicating such very low risks neither is a useful

exercise nor resolves a common issue. Each individuals actual risk, if it exists at all, is unique and dependent upon a myriad of individual factors of exposure, lifestyle, family history, time in the community, work conditions, smoking history, etc. The plaintiffs own risk assessment expert has conceded the enormity and individuality of assessing individual class members differing level of risk: [T]he risk assessment methods practiced by Dr. Becking and myself cannot be used to deduce, in any way, the risk that an individual may experience . . . . There is significant variability in individual susceptibility to toxic effects of chemical exposures, due to factors such as age, diet, pre-existing health conditions, genetics, prior exposures and innumerable other factors. These factors, and the variability in toxic response that they engender, preclude any validity in even the most rudimentary projection of risk for individuals.1 10. Moreover, attempting to litigate the varying individual levels of low risk would

do nothing to advance the health claims asserted in this action. Determining whether the presence of environmental metals attributable to Inco actually caused the numerous maladies alleged by the plaintiff is the central, necessary ingredient for any tort liability for such maladies. Proving medical causation is always individualized, but it is especially individualized where, as here, the alleged health effects are of the widest dimension, with multiple common causes, and the argued levels of risk range from extremely low to non-existent. As Dr. Becking has pointed out, and as the plaintiffs risk assessor apparently agrees, one cannot infer causality on an individual basis without a thorough assessment of the individual in question; that is, his/her
1

Supplementary Affidavit of Dr. Mark Richardson, Ex. A; Plaintiffs Supplementary Record, tab 3A, pp. 20-21

-5symptoms, personal and family medical history, lifestyle, diet, occupation and other individualized factors, including a detailed exposure assessment. This is particularly important when the estimated risk from the alleged causal agent is low, and the disease is known to occur independently of the chemical.2 Other Claims 11. The same sort of highly individualized undertaking will have to be repeated again

and again with respect to numerous issues and each class members claim. Even determining the existence, extent and source of metal content in the soil will require detailed property-byproperty sampling and analysis. Studies of environmental conditions across Port Colborne to date have shown that soil conditions and content are highly variable and property-specific among the properties already sampled (a fraction of the total number of properties), many have typical or near-typical levels of most or all metals and where levels are elevated they differ widely from property to property and metal to metal. Certain metals, like lead, are commonly found in older urban soils due to common domestic use of lead-based paints and other products. Lead levels measured in Port Colborne are typical of older urban areas, and there is no scientific evidence linking them to Incos operations. Arsenic was a significant by-product of another long-time industry in town. 12. The expert evidence is also uncontroverted that the existence and extent of

residential property value impacts can only be determined through a case-by-case assessment that takes into account the timing of individual purchase and sales, the knowledge of the homebuyer at the time of purchase or sale and the numerous attributes that affect the value of a

Dr. George Becking, Review of Health Risks from Various Chemicals in Port Colborne (Becking Report), p. 21; Inco Record, Vol. III, tab 2B, p. 1223

-6home the homes size, age, configuration, condition and lot, local crime rates, proximity to highways, parks, employment and shopping, etc. Determining the cause of alleged settlement damage to homes is similarly a highly home-specific and location-specific inquiry. The expert evidence is also unchallenged that allegations of crop impacts and their cause can only be assessed on a year-by-year, field-by-field and crop-by-crop basis that accounts for numerous individual variables and individual farmers crop management practices. 13. The evidence to date also reveals that numerous individualized defences of

substance will have to be litigated on a class member by class member basis. Rather than consolidate litigation, certification will generate individual litigation of a massive dimension. Preferable Procedure 14. By contrast, the CBRA process initiated well prior to this lawsuit is uniquely

suited to comprehensively and efficiently address environmental concerns related to the presence of nickel, copper, cobalt and arsenic in Port Colborne area soils. Funded by Inco at a cost that will exceed $5 million, the CBRA will conduct and utilize the results of numerous scientific studies designed to assess any human health and ecological risks that may be present in Port Colborne due to nickel, copper, cobalt and arsenic. Utilizing conservative principles of risk assessment, the CBRA will sample property in Port Colborne and offer suitable remediation paid for by Inco, if and where called for, depending on individual property characteristics. 15. Although elevated levels of those metals attributable to the Inco facility stem

almost entirely from industrial activity in a bygone era (97% or more came from pre-1960 operations), in order to benefit from the CBRA process current residents of Port Colborne (i) do not have to establish legal liability and overcome legal defences; (ii) do not have to show that all or most of the chemicals of concern found on their property originated with Inco; (iii) do not

-7have to show any harm or damage has actually been caused to them; (iv) do not have to show that the CBRA model meets judicial standards of proof. Instead, necessary remediation will be offered on a no-questions-asked basis based on the results of the comprehensive scientific model and individual property characteristics. 16. The end result of the CBRA will be not only that individual properties are

approved and safe for development and use but also that Port Colborne as a whole is recognized as a healthy place to live, with all of its lands safe for productive use. The unrebutted expert evidence, drawing on research from the United States, is that such community-wide remediation efforts are very effective in eliminating property value impacts, if any, that may have arisen from environmental contamination or publicity surrounding it. Furthermore, in conjunction with the CBRA, comprehensive health and property value studies are being conducted in order to ascertain whether any lasting impacts exist from the facilitys historic operation. 17. Furthermore, the CBRA process does not stand alone. Complementing the

process is the active involvement of the Ministry of the Environment which has fully engaged its regulatory processes in Port Colborne. The MOE has gone beyond the CBRA where it feels circumstances warrant, as in the Rodney Street area. 18. In short, a class proceeding is not a preferable procedure in this case. Indeed, the

activities of class counsel have already slowed down and encumbered the CBRA process, related health studies and the MOEs and Incos efforts to remediate homes in the Rodney Street area. Furthermore, class certification of this matter has the potential to undermine the consent, cooperation and consistency that have allowed the CBRA process to take place. Litigationdriven environmental assessment and remediation is not what is best for Port Colborne, for the future of the CBRA or for the possibility of similar processes elsewhere. The CBRA is the first

-8such industry-funded comprehensive community risk assessment and risk management process that Canada has seen. Depending on the message sent by this proceeding, it could be the last. PART II THE FACTS A. Incos Port Colborne Facility 1. 19. Background Incos Port Colborne facility was designed and constructed during World War I in

response to wartime demand for nickel and political pressure for the development of a domestic nickel refining capacity. The facility opened in 1918 and, by contemporary accounts, was a state-of-the-art refinery for nickel and other metals.3 20. The facility has undergone significant process, operational, technological and

equipment changes over its history. For example, originally the Orford process was carried out at the facility to treat raw nickel-copper matte for further refining but the process was transferred elsewhere in the 1930s. Copper processing ceased around this time as well. In the mid-1920s, electro-refining operations were introduced and, over time, became the primary means of producing refined nickel. Various other operating changes characterized different periods of the plants history, including changes in dust control equipment which accompanied technological advancements and the implementation of modern occupational standards for workplace conditions. Originally designed to produce about 15 million pounds of nickel a year, the plant underwent various expansions and by the end of its half-century operational life (for nickel production) had produced over 7 billion pounds of electrolytic nickel.4

Affidavit of Dr. Bruce Conard, paras. 4-5, 10 (a) and Exs. B & D; Responding Record of Inco Limited (Inco Record), Vol. I, tab 1, pp. 4-6, 87-88, 94-102 Affidavit of Dr. Bruce Conard, paras. 7-9, 11-13; Inco Record, Vol. I, pp. 5-8

-921. Nickel production peaked in the middle decades of the last century at which time

the facility employed close to 3,000 people. For many years, the facility was apparently the largest employer in Port Colborne. Production, however, declined in the 1970s, and in 1984 electrolytic nickel production stopped altogether. Other operations continued at the facility but at a significantly reduced scale. Currently, the facility carries out some cobalt and precious metal refining and the warehousing of products from other operations. It now employs about 190 people.5 22. Port Colborne and the Welland Canal region has been and continues to be the

home to various other industrial works, including a large iron smelter / steel plant operated by the Canadian Furnace Company (later Algoma Steel) from 1917 to 1977 which was located only a few hundred meters upwind of the Inco facility and was known to emit arsenic, among many other chemicals. Various medium to light industries and activities associated with shipping traffic through the canal were also prevalent and impacted the local areas in which they were situated. For example, studies of lands now owned by Transport Canada near the Inco site and the adjoining Rodney Street neighbourhood show significant impacts caused by, among other things, an old CN railyard, a scrap metal yard and the Algoma plant in the vicinity. Areas of Port Colborne also demonstrate impacts typical of older urban areas in which the local use and disposal of lead-based household products was once commonplace.6

MOE Soil Investigation and Human Health Risk Assessment for the Rodney Street Community, Port Colborne: March 2002 (MOE March 2002 Report), Part A, pp. 2-3; Motion Record of Her Majesty the Queen in Right of Ontario (Crown Record), Vol. III, tab F
5

Affidavit of Dr. Bruce Conard, paras. 8-9; Inco Record, Vol. I, tab 1, pp. 5-6 Affidavit of Wolfgang Kaufmann, para. 10; Plaintiffs Record, Vol. I, tab 3, p. 10

Affidavit of Dr. Bruce Conard, paras. 23-24, 30 and Ex. H; Inco Record, Vol. I, tab 1, pp. 12-13, 15, Vol. II, tab H, pp. 443-46 MOE March 2002 Report, Part A, pp. 37-38; Crown Record, Vol. III, tab F

- 10 2. 23. Historic Emissions from the Inco Facility The makeup and quantity of particulate emissions from Incos facility varied over

the years with changes in processes, operations and technology and as a function of production volumes. Historically, emissions were highest in nickel, although the forms of nickel including nickel subsulfide, nickel carbonates, nickel hydroxides, nickel oxide, nickel sulfate and nickel metal and their mixture varied widely over time. Lesser amounts of copper, cobalt, arsenic and other compounds were also emitted especially in the earlier years of operation.7 24. While exact measurements of total emissions from the facility are not available, it

is widely agreed that the vast bulk of emissions were associated with operations prior to 1960 before decreases in production volumes and modern advances in emission control technology. The plaintiff has presented older evidence estimating that 95% or more of the total nickel emitted from the facility was emitted before 1960. More comprehensive analysis undertaken as part of the CBRA in 2001, and accepted by the MOE, breaks down total nickel emissions from six different operating periods and indicates that over 97% of the total nickel emissions deposited in the surrounding area occurred before 1960. By comparison, emissions since 1984 have been negligible and have not measurably impacted the chemical composition of surrounding lands.8 25. It is also not disputed that since the establishment of the Ministry of the

Environment, Inco has been scrupulous both in terms of compliance with environmental standards and regulation and voluntary abatement measures which the MOE regularly was
7 8

Affidavit of Dr. Bruce Conard, paras. 15-16, 37; Inco Record, Vol. I, tab 1, pp. 9, 17 Affidavit of Dr. Bruce Conard, paras. 14-16; Inco Record, Vol. I, tab 1, pp. 8-9 MOE March 2002 Report, Part A, p.3 and Figure 1; Crown Record, Vol. III, tab F Affidavit of Allen Baldwin, Ex. D; Plantiffs Record, tab 7D, pp. 255-61 Affidavit of Dave McLaughlin, paras. 29-32; Crown Record, Vol. I, tab 1, p. 9

- 11 pushing. One of the plaintiffs own witnesses a former long-time employee of the MOE assigned to monitor Incos facility in the 1970s and 80s testified unequivocally that Inco actively pursued voluntary abatement efforts, never installed anything in its facility without a proper regulatory approval, never failed to install anything which had been approved and never violated any conditions of approval. He emphasized: International Nickel, when they applied for certificates of approval, put in the equipment as per the application. That was my experience with that company. Whatever they put down on their application, they in fact held to that.9 3. 26. Public Awareness in Port Colborne The issue of emissions from Incos facility is an old and very public one.

According to the plaintiffs evidence: Historically, the presence of Inco and its impact on the City of Port Colborne has been well known throughout the community. In fact, complaints about Incos stack appeared in the press as early as 1938. While injury to vegetation steadily declined since 1960 and observed vegetation damage virtually disappeared by 1980, elevated levels of residual nickel in area soils have been reported for at least 40 years. In the 1960s, the Humberstone Township Council passed a resolution, reported in the press, regarding environmental concerns.10 27. Since the early 1970s, the MOE has openly and regularly taken air and soil

samples in the vicinity of the facility, typically on the property of, and with the permission of, local landowners. In 1981, the federal government commissioned a health study in which 1,000 homes were approached and over 300 residents participated. The study looked at, among other
9

Cross-Examination of Allen Baldwin, pp. 5-8 esp. q. 17-18 (Inco asked for and received approval to install water treatment facility which proved very effective), pp. 12-18, 25-26 q. 98, 28 Affidavit of Wolfgang Kaufmann, para. 10; Plaintiffs Record, Vol. I, tab 3, p. 26 Affidavit of Dr. Bruce Conard, paras. 71-73; Inco Record, Vol. I, tab 1, pp. 28-29

10

- 12 things, known health effects of nickel and found that Port Colborne residents are generally healthy with no illnesses reaching abnormal levels.11 28. In 1992, awareness of environmental issues in the Rodney Street area adjoining

the facility was such that area residents cited it when an application for rezoning for a residential development came up for approval. According to minutes kept by the City, the plaintiff himself participated in the discussions.12 29. Many Port Colborne residents are also current or former Inco employees who

worked at the facility, possessing whatever special knowledge of the facility and its operations they acquired on the job. Other residents would have been exposed to the Inco facility through their jobs. The plaintiff himself worked for a time in a job for a metal company that took him inside the facility.13 B. The Port Colborne Environment Today 1. 30. Port Colborne Generally Various soil investigations over the years have detected elevated levels of nickel

in surface soils generally in a northeastern direction from the Inco facility, the direction of the prevailing wind. Because the Inco facility is located in the southeastern section of residential Port Colborne, most of the area with elevated levels of nickel lies outside the residential portion

11 12

Affidavit of Dr. Bruce Conard, paras. 74-75; Inco Record, Vol. I, tab 1, pp. 29-30 Cross-Examination of Charles Miller, p. 26 Joint Compendium of Exhibits and Answers to Undertakings, Vol. II, tab G(3)

13

Affidavit of Wolfgang Kaufmann, para. 10; Plaintiffs Record, Vol. I, tab 3, p. 26 Affidavit of Dr. Bruce Conard, para. 8; Inco Record, Vol. I, tab 1, p. 5 Cross-Examination of Wilfred Pearson, pp. 44-45

- 13 of the City. Inco has acknowledged that historic airborne emissions from its facility

predominantly prior to 1960 are the primary source of nickel in area surface soils. To a much lesser extent, elevated levels of copper, cobalt and arsenic have been detected intermittently in surface soils, of which copper and cobalt can be attributed predominantly, and arsenic partially, to early operations at the Inco facility.14 31. In 1999, the MOE undertook a study designed to augment earlier samplings of

these substances in Port Colborne area surface soils. The study included a computer mapping that approximated, from the samples collected, an area of about 28.6 square kilometers in which nickel levels exceed the MOEs Table A generic guideline for nickel, a much smaller area of about 0.8 square kilometers containing excess cobalt, an even smaller area of about 0.2 square kilometers containing excess copper and no mapable area at all containing excess arsenic, lead or zinc that could be spatially related to the Inco facility. The study warned that these maps should only be used as an interpretative tool to provide information on approximate areas and/or patterns of contamination and cannot be used to infer contaminant concentrations at locations not directly sampled.15 32. Ambient air levels of nickel have been steadily declining since nickel refining

ceased in 1984. Recent measurements of nickel in the ambient air (collected in the Rodney Street area in the summer of 2001, when levels would be expected to be highest) showed air nickel at levels of about one-third of a decade ago. This level is about 200 times lower than the MOEs 24-hour air standard for nickel. Furthermore, these summer-only levels are in the same concentration range as year-around measurements from other urban areas across Southern
14

Affidavit of Dr. Bruce Conard, para. 17; Inco Record, Vol. I, tab 1, p. 10 MOE March 2002 Report, Part A, pp. 4-5; Crown Record, Vol. III, tab F

15

Affidavit of Dr. Bruce Conard, paras. 19-20 and Ex. E; Inco Record, Vol. I, tab 1, pp. 10-11, 114

- 14 Ontario, with Windsor and Toronto showing long-term mean values 70% of the summer mean readings in the Rodney Street area and Ottawa showing maximum readings that exceed by almost 40% the maximum reading from Port Colborne. More generally, according to the MOE, the levels of the metals of concern found during the recent [air] monitoring program by the MOE are comparable to those in other parts of the province. A high percentage of nickel in the air throughout the industrial world arises from the ordinary combustion of fossil fuels, such as vehicle engine exhaust and coal and oil burning power generation facilities.16 2. 33. The Rodney Street Area The Rodney Street area is a neighbourhood sandwiched between Incos facility,

the former site of Algomas steel plant and the Welland Canal. It is an area that has been surrounded by heavy industry for a century or more. It is near Lake Erie and the ground is comprised of a substantial amount of fill, including slag from various industrial operations as well as peat and clay. Soil conditions are very different from elsewhere in Port Colborne. Homes in the area are modest and low-valued. The plaintiff, who resides on Rodney Street, purchased his home in 1980 for $17,000.17

16

Affidavit of Dr. Bruce Conard, paras. 69, 89; Inco Record, Vol. I, tab 1, pp. 28, 34 Supplementary Affidavit of Dr. Bruce Conard, para. 3; Inco Record, Vol. IV, tab 6, p. 1294 Supplementary Affidavit of Dr. George Becking, paras. 9, 13; Inco Record, Vol. IV, tab 7, pp. 1305-06, 1308 MOE March 2002 Report, Part B, p. 24 and Appendix 1, p. 2; Crown Record, Vol. III, tab F US EPA: Locating and Estimating Air Emissions from Sources of Nickel; Inco Record, Vol. I, tab F, pp. 177-362

17

Affidavit of Dr. Bruce Conard, para. 25; Inco Record, Vol. I, tab 1, p. 13 Affidavit of Bill Berkhout, para. 9; Plaintiffs Supplementary Record, tab 5, p. 97 Cross-Examination of Wilfred Pearson, pp. 13-14 q. 37

- 15 34. The Rodney Street area became a focus of attention in September 2000 when it

was announced that the MOE had found higher than expected nickel levels in a soil sample taken from a single property in the area. Prior to September 2000, elevated nickel levels were well known and documented from decades of soil investigations but the highest previously observed level was 9,750 mg/kg (parts per million or ppm) whereas a detected level of 14,000 ppm was announced in September 2000. This led the MOE to conduct a widespread sampling campaign of all residential properties in the Rodney Street Area, in which more than 1,500 soil samples were collected, and to carry out a detailed human health risk assessment for that community.18 35. While the comprehensive soil results showed an average soil-nickel concentration

of 2,500 ppm, well within (and at the low end of) the expected range for such an area immediately adjacent to the Inco facility, a single highest concentration of 17,000 ppm was found in one sample taken from beneath the surface. Nevertheless, the testing as a whole showed that such very high soil nickel levels are not wide-spread throughout the community. Also, unlike elsewhere in Port Colborne, higher levels of nickel, where detected, were typically found at depth (as opposed to in the surface soils) along with significant amounts of slag and other non-native landfill suggesting a non-Inco origin for some of the contamination. Overall, the sampling study found that soil contamination in the Rodney Street community, although extensive for some elements, tends to be patchy. Properties with much lower soil contamination
18

Affidavit of Dr. Bruce Conard, para. 26; Inco Record, Vol. I, tab 1, p. 13 Affidavit of Wolfgang Kaufmann, para. 38; Plaintiffs Record, Vol. I, tab 3, p. 35 Affidavit of Ellen Smith, paras. 3-4; Plaintiffs Supplementary Record, tab 6, p. 102 Cross-Examination of Wolfgang Kaufmann, pp. 6-7 Cross-Examination of Wilfred Pearson, p. 50 Cross-Examination of Ellen Smith, p. 11 MOE March 2002 Report, Part A, pp. 5-7; Crown Record, Vol. III, tab F

- 16 levels were often encountered between properties with much higher concentrations. Conversely, occasionally single properties with significantly elevated concentrations of some elements were surrounded by properties with much lower contaminant levels.19 36. The plaintiffs factum, in paragraph 4, misleadingly states that the level of

contamination near the Inco Refinery is 5,588 ppm. In fact, this figure represents the 90th percentile of nickel readings collected by the MOE in the Rodney Street area. Most samples showed far lower nickel levels. Most importantly, this obscures that there is great variability in metal levels from property to property. 37. The MOEs Rodney Street report recommended that 25 properties (out of several

hundred in the area tested), in which even one sample showed nickel levels of greater than 8,000 ppm, be remediated. Although Inco strongly disagreed with some of the conclusions of the report (and has appealed them through the regulatory process), Inco immediately volunteered to remediate the 25 properties identified by the MOE just as it had done in the spring of 2001 when an earlier version of the report recommended 16 properties for remediation. Remediation of five of these 25 properties has already taken place. Remediation of the others, however, has been blocked by plaintiffs counsel who has been personally retained by some area residents.20 C. The Plaintiffs Claims

19

Affidavit of Dr. Bruce Conard, paras. 27-28; Inco Record, Vol. I, tab 1, pp. 13-14 MOE March 2002 Report, Part A, pp. 14, 22; Crown Record, Vol. III, tab F

20

Affidavit of Dr. Bruce Conard, para. 29; Inco Record, Vol. I, tab 1, p. 14 Affidavit of Kal Haniff, paras. 21-38; Crown Record, Vol. IV, tab 3

- 17 38. This proceeding was launched in late March 2001, several years after the CBRA

was first proposed and just a few days before the MOE issued its original draft report concerning the Rodney Street area. 39. The central allegation made by the plaintiff is that [s]ince it began operation, [the

Port Colborne facility] has continuously emitted toxic, noxious, dangerous and hazardous substances into the natural environment. As a result, the plaintiff claims, contaminants can now be found throughout the lands owned, occupied or used by Class members. The plaintiff alleges that these emissions have caused and continue to cause (i) extensive, severe and widespread damage to property and to the value of property owned by Class Members; and (ii) extensive, severe and widespread damage to the physical and emotional health and well being of Class Members.21 40. The alleged losses to property include loss of use and enjoyment of property . . .

including extensive business and personal losses; and loss of value of property . . . including the complete devaluation of certain properties, and loss of the ability to sell, finance or mortgage numerous properties. The alleged health effects include an extensive list of respiratory,

cardiovascular, dermal, developmental, carcinogenic, hematological, renal, hepatic, reproductive, immunological and neurological conditions and diseases, ranging from cardiac arrhythmias, headaches and high blood pressure to anaemia and gout.22

21

Fresh As Amended Statement of Claim (Statement of Claim), paras. 14-17; Plaintiffs Record, Vol. II, tab 1A, pp. 12-13 Statement of Claim, paras. 24-25; Plaintiffs Record, Vol. II, tab 1A pp. 15-16 Reply to Demand for Particulars, para. 5; Plaintiffs Record, Vol. II, tab 1B, pp. 34-42

22

- 18 41. The plaintiff has also alleged that water pumping activities undertaken at the

facility to control migration of contaminants have caused local subsidence damage to the homes in the area.23 42. The primary cause of action alleged against Inco is nuisance for alleged

interference with Class Members use and enjoyment of their lands and premises. In addition, the plaintiff claims strict liability under the doctrine of Rylands v. Fletcher, trespass and negligence.24 43. The proposed class is defined geographically by the boundaries of the

municipality of Port Colborne. As can be seen from the map at page 91 of Incos Record, the residential portion of Port Colborne represents only a small portion of the municipality. Thus included within the proposed class are not only urban residents and businesses but also a substantial number of potential agricultural claimants. The boundaries of the municipality or the residential sections of Port Colborne also do not bear any necessary relationship to the emergent patterns of elevated soil metal levels. For example, MOE soil testing shows very little or no elevation of soil metal levels on properties in the western section of Port Colborne.25 D. Expert Evidence the Individualized Process Required to Determine Causation and Other Factual Elements of the Claims 44. The nature of the evidential inquiry necessitated by the claims in this case in light

of the scientific and historic realities in Port Colborne was the subject of extensive, and
23

Statement of Claim, para. 18; Plaintiffs Record, Vol. II, tab 1A, pp. 13-14 Reply to Demand for Particulars, para. 9; Plaintiffs Record, Vol. II, tab 1B, pp. 43

24 25

Statement of Claim, paras. 27-32; Plaintiffs Record, Vol. II, tab 1A, pp. 17-19 Port Colborne area maps; Inco Record, Vol. I, tab 1C, pp. 90-92 Affidavit of Wolfgang Kaufmann, paras. 2, 44-53; Plaintiffs Record, Vol. I, tab 3, pp. 24, 36-41

- 19 uncontroverted, expert testimony. (As discussed further below, the plaintiff adduced virtually no evidence as to the process required to determine the claims in this case, and the plaintiffs factum discusses quite selectively and misleadingly evidence that predominantly goes to the merits of the claims instead of the nature of the process required for determining them.) The record is clear that determining the nature, scope and source of actual soil conditions on different properties, evaluating health exposures and consequences and attributing their cause, ascertaining the existence, cause and nature of property value changes, assessing the reason for and nature of crop impacts, and determining the cause and nature of subsidence damage to homes are all undertakings that can only be carried out on a highly individualized property-byproperty and person-by-person basis. The expert evidence demonstrates that in the context of the entire claim there is an overwhelming amount of individual factual questions and issues that would have to be determined for each of 20,000 class members. As discussed below, such individual issues would be left to individual class members to litigate at their own expense. 1. 45. Determining Soil Conditions and Their Source The current soil situation on any piece of property critical to issues of

individual exposure is unique due to the effects of changing use, soil conditions, erosion, excavation, wind breaks, tree cover, landscaping, natural chemical processes and other factors. The bulk of Inco-related depositions occurred 40-80 years ago. With respect to nickel alone, the MOEs soil testing has found considerable variability in soil Ni concentrations vs. distance from the refinery. Soil Ni concentrations at some sites are relatively low compared to other sites located at similar or greater distances from INCO. Contaminant concentrations cannot be inferred at locations not directly sampled. As discussed further below, contaminant

1999 MOE Phytotoxicology Soil Investigation, pp. 63-71; Inco Record, Vol. I, tab 1E, pp. 167-75

- 20 concentration is a crucial factor in assessing actual individual human exposure and health consequences, as well as crop and other phytotoxic impacts.26 46. Furthermore, various alleged contaminants such as lead, arsenic and zinc

cannot be automatically attributed to Inco. They have not been generally observed in quantities or patterns suggesting Inco as the sole or predominant source and there are known to be alternative or additional sources for them. At a minimum, extensive further individual analysis would have to be undertaken to attempt to show that Inco was the source of elevated levels of lead, arsenic or zinc measured on any individual property. Such analysis would, in the case of lead for example, have to rule out lead-based paint, lead-acid car battery usage and disposal and leaded gasoline as the cause of any elevated measurement on a particular property.27 47. In addition, nickel and other chemicals in the soil can and do take many different

forms, with different and significant implications for health. This is particularly the case with respect to chemicals historically emitted from Incos facility in Port Colborne. They have been exposed to disparate environmental conditions for a half century or more and have reacted and combined with other soil chemicals in numerous ways and to different extents. Soil chemists have advised that under normal soil conditions (rainfall, snowfall, availability of oxygen) deposited particles would react over time with the water phase and adjacent soil minerals to form new compounds that would have different chemistries than the originally deposited particles. Understanding the forms of metal present on a particular property is a prerequisite to assessing health and ecological consequences. As the Agency for Toxic Substances and Disease Registry (relied on by the plaintiff) advises in its comprehensive assessment of the toxicology of nickel:

26 27

Affidavit of Dr. Bruce Conard, para. 18 and Ex. E; Inco Record, Vol. I, tabs 1 and 1E, pp. 10, 114, 116 Affidavit of Dr. Bruce Conard, paras. 20-24 and Ex. E; Inco Record, Vol. I, tabs 1 and 1E, pp. 11-13, 115-16

- 21 The speciation and physicochemical state of nickel is important in considering its behavior in the environment and availability to biota. For example, the nickel incorporated in some mineral lattices may be inert and have no ecological significance. Most analytical methods for nickel do not distinguish the form of nickel; the total amount of nickel is reported, but the nature of the nickel compounds and whether they are adsorbed to other material is not known. This information, which is critical in

determining nickels liability and availability, is site specific. Therefore, it is impossible to predict nickels environmental behavior on a general basis. *** Nickel is strongly adsorbed by the soil, although to a lesser degree than lead, copper, and zinc. There are many adsorbing species in soil, and many factors affect the extent to which nickel is adsorbed, so the adsorption of nickel by soil is site specific. . . . (emphasis added) Other leading research, as well as the MOE, likewise recognize that, in assessing health effects of nickel, speciation is of paramount importance.28 48. Actual speciation testing has confirmed the variability and site specificity of the

nickel forms in Port Colborne soils. Whereas, in the Rodney Street area, soil nickel has been found mostly in the form of nickel oxide, testing of samples from elsewhere in Port Colborne show widely differing forms of nickel with different species predominating from site to site. (As discussed below, claims in the plaintiffs factum that testing has shown a predominance of nickel oxide across Port Colborne are demonstrably false.) As part of the CBRA process, described further below, a variety of speciation techniques are being used and weighed to arrive at

March 2002 MOE Report, Part A, pp. 38-40; Crown Record, Vol. II, tab F
28

Affidavit of Dr. Bruce Conard, paras. 31-44; Inco Record, Vol. I, tab 1, pp. 15-19 ATSDR: Toxicological Profile for Nickel (1997), pp. 172, 181; Inco Record, Vol. II, tab 1I, pp. 865, 874

- 22 conclusions for individual soil samples from different properties that will be taken as part of the process.29 2. 49. Determining Health Effects and Their Cause Determining whether individuals suffer alleged health effects, and whether any

such effects were actually caused by particular environmental conditions, is an inherently individualized undertaking even if environmental conditions were not as variable and site specific as they are in Port Colborne. Determining causation is especially individualized when the estimated risk from the alleged causal agent is low, and the disease is known to occur independently of the chemical.30 50. Even determining the mere risk, if any, a person faces is an individualized inquiry To draw conclusions about any homeowners level of risk from the

of significant scope.

environmental condition of his or her property in Port Colborne, individual exposure data is crucial actual exposure is function of not only the level of chemicals on that persons property, but also the persons food and water consumption patterns (e.g. one consumes far more nickel from a small hamburger and fries than one is likely to ingest from daily exposure to the highest levels of nickel in the soil on Rodney Street), behaviour, lifestyle, etc., throughout the persons lifetime.31

29

Affidavit of Dr. Bruce Conard, paras. 46-65; Inco Record, Vol. I, tab 1, pp. 20-26 Supplementary Affidavit of Dr. Bruce Conard, paras. 5-10; Inco Record, Vol. 4, tab 6, pp. 1295-98

30 31

Becking Report, p. 21; Inco Record, Vol. III, tab 2B, p. 1223 Becking Report, pp. 19-20; Inco Record, Vol. III, tab 2B, pp. 1221-22 Mark Richardson, Assessment re Arsenic Contamination in Wawa, p. 31; Joint Compendium of Exhibits and Answers to Undertakings, Vol. II, tab J(2)

- 23 51. Risk assessments of the type the MOE conducted for Rodney Street do not use

individualized data to estimate risk. Risk assessments are instruments of policy which make across-the-board and conservative as opposed to individualized and most plausible assumptions about population groups in order to assist policy-makers. The predictions of risk assessment and actual levels of risk are not the same thing and risk assessment is designed to err, where uncertainties exist, on the side of overestimation. For example, in the MOEs Rodney Street risk assessment, it was assumed that all residents were continuously exposed to soil with 17,000 ppm nickel even though average soil nickel levels are 2,500 ppm and only one sample out of 1,500 showed 17,000 ppm nickel and that sample was taken from subsurface soil. As put by the risk assessor retained by the plaintiff, the estimations of risk assessment are no longer theoretically applicable to estimating an individuals risk because there are no data relating to any individuals behaviour, food consumption patterns, etc. throughout his/her life. The U.S. Environmental Protection Agency has similarly warned that risk assessment techniques cannot be validly used to accurately predict the incidence of human disease or the type of effects that chemical exposures have on humans.32 52. Even when the conservative and non-individualized conventions of risk

assessment are used, the calculated risks to residents of Port Colborne are extremely low or nonexistent from metals in the soil. This is the thrust of the MOEs Rodney Street study, although as a precautionary measure the study recommends remediation of properties with greater than 8,000 ppm nickel. [Inco is appealing the MOEs order in this regard although it is voluntarily
32

Becking Report, pp. 16-17, 20; Inco Record, Vol. III, tab 2B, pp. 1218-19, 1222 Mark Richardson, Assessment re Arsenic Contamination in Wawa, pp. 31-32; Joint Compendium of Exhibits and Answers to Undertakings, Vol. II, tab J(2) Supplementary Affidavit of Dr. Bruce Conard, para. 12; Inco Record, Vol. IV, tab 6, p. 1299

- 24 carrying out the remediation because, in the opinion of Dr. Becking, the level of precaution employed was undue and unsound as a matter of principled risk assessment. The

recommendation was based on a small estimated exceedence of the nickel reference dose or RfD for a single age group. Yet by definition, exposures in excess of the RfD are only potentially significant if they can occur over a lifetime (except for massive acute exposures many orders of magnitude greater than possible in Port Colborne). The very conservatively estimated lifetime nickel exposure for Rodney Street residents is, in fact, less than one-half the nickel RfD, and residents are in fact exposed to more nickel from their ordinary diets than from the soil. In any event, as the plaintiffs risk assessor has pointed out elsewhere: an RfD is not a benchmark for distinguishing health from disease, but has been derived as a conservative reference value that is, with reasonable certainty, free of ill effects.]33 53. One of the peer reviewers for the MOE report was Tor Norseth, M.D., PhD, of

National Institute of Occupational Health in Norway. Dr. Norseth is one of the worlds foremost experts in nickel toxicology. After a detailed review of the MOEs work on Rodney Street, Dr. Norseth concluded: There is for all practical purposes no increased health risk caused by the soil nickel contamination in the Rodney Street area.34 54. The plaintiff, by contrast, has not presented any evidence of increased health risk

in Port Colborne. The risk assessor retained by the plaintiff, Mark Richardson, in an initial 4page affidavit, did made the general statement that members of the Class have a greater
See also Reference Manual on Scientific Evidence, 2nd ed., Reference Guide on Toxicology, pp. 412-13, 42224 (Federal Judicial Center 2000)
33

Becking Report, pp. 7-16; Inco Record, Vol. III, tab 2B, pp. 1209-18 Mark Richardson, Assessment re Arsenic Contamination in Wawa, p. 1; Joint Compendium of Exhibits and Answers to Undertakings, Vol. II, tab J(2) Affidavit of Dr. Bruce Conard, para. 29; Inco Record, Vol. I, tab 1, p. 14

- 25 probability (risk) of exhibiting these effects . . . than do an unexposed population (emphasis added). However, the affidavit did not elaborate what the degree of such alleged increased risk actually was, and the statement in fact is meaningless because there is no such thing as an unexposed population for example, all Canadians are exposed to large amounts of nickel in the ordinary supermarket food they eat and nickel compounds are present in the air throughout Ontario. Furthermore, after Dr. George Becking, an internationally experienced toxicologist with the World Health Organization and the former Chief of Health Canadas Division of Environmental and Occupational Toxicology, carefully pointed out why there is no significant health risk even at the unrealistically high exposures conservatively assumed by the MOE, the plaintiffs risk assessor effectively retracted his original comment. In his later response to Dr. Becking, the plaintiffs risk assessor stated until such time as exposures can be more accurately and validly determined . . . it is inappropriate to categorize any of those chronic effects that have been associated with those contaminant exposures . . . as less likely or more likely to occur.35 55. The extremely low levels of risk and the inherent variability of risk assessment

can be seen, by way of example, in the competing analyses of cancer risks. Certain nickel compounds have been associated with particular kinds of nasal and lung cancers but only under conditions of prolonged exposure and only through inhalation and only at extremely high workplace air concentrations (in past generations) at levels on the order of one million times greater than that in the ambient air in Port Colborne. For example, a cohort of workers in the
34 35

Review of Dr. Tor Norseth, p. 6; Inco Record, Vol. IV, tab 7A, p. 1319 Affidavit of Dr. Mark Richardson, para. 11; Plaintiffs Record, Vol. I, tab 4, p. 85 Becking Report; Inco Record, Vol. III, tab 2B, pp. 1202-24 Supplementary Affidavit of Dr. Mark Richardson, Ex. A, p. 1; Plaintiffs Supplementary Record, tab 2A, p. 18 Supplementary Affidavit of Dr. George Becking; Inco Record, Vol. IV, tab 7, pp. 1301-1311 Affidavit of Dr. Bruce Conard, para. 89; Inco Record, Vol. I, tab 1, p. 34

- 26 Port Colborne facility who were exposed to nickel refinery dust levels only 100,000 times greater than present in Port Colborne today showed no increase in cancer. And in a 1997 study of the actual health condition of Port Colborne residents, updated in 2000, the MOE and the Regional Health Department found no increased incidences of cancer (and no adverse health effects at all) from environmental exposures.36 56. Nevertheless, risk assessment in its conservatism attempts to extrapolate through

mathematical modelling the theoretical risk of cancer even at levels of exposure much lower than that at which cancer has ever been observed. These models assume that there is no threshold level beneath which there is no risk and, for nickel, are based on the carcinogenic potency of nickel refinery dust since an association with cancer has only been seen among workers in the dustiest nickel facilities of the past. (In the case of nickel oxide, these policybased assumptions are contrary to research that demonstrates both a threshold level and a potency that is only a small fraction of the potency of the primary component of refinery dust nickel subsulphide which is not present in Port Colborne air today since it would have broken down decades ago.) Thus, risk assessment is an inexact science and different agencies arrive at different risk factors based on the data, models and assumptions used. The MOE has observed that, based on current air nickel measurements, the various models calculate a lifetime cancer risk of anywhere between 3 and 16 in a million. Even then, the MOE assumes the nickel in the air is of the same potency as nickel refinery dust, which is highly unlikely since nickel subsulphide is not present in the ambient air. The plaintiffs risk assessor, by ignoring the research with regard to potency, using decade-old air measurements (three times higher than

36

Affidavit of Dr. Bruce Conard, paras. 66-70; Inco Record, Vol. I, tab 1, pp. 26-28 1997 MOE Health Study, pp. 46-47 ; Inco Record Indoor Sampling Motion, tab A1, p. 46 2000 Update; Affidavit of Dr. Robina Williams, tab B

- 27 current measurements) and employing the most conservative of the various models, has derived a figure of 40 in a million. Dr. Norseth, by contrast, takes into account the lower cancer potency of nickel oxide and concludes for all practical purposes that there is no cancer risk from nickel exposure in Rodney Street residents. Dr. Becking, who likewise takes into account the latest toxicological research, estimates a lifetime cancer risk in Port Colborne of less than 1 in 1 million. In a town of 18,000, even a lifetime cancer risk as high as 1 in 100,000 would mean that it is unlikely that even one person living in Port Colborne will get cancer as a result of inhaling nickel in the ambient air.37 57. As the plaintiffs risk assessor has pointed out, when characterizing estimated

cancer risks at the low end of the spectrum: the setting of de minimis levels is one of policy, not science. Acceptable risk levels range from 1 in 10,000 to 1 in 1 million for various jurisdictions across Canada, and certain risk management criteria [for arsenic in drinking water] approach a carcinogenic risk level of 1 in 1,000. The plaintiffs risk assessor, nevertheless, seems to suggest that the appropriate policy for intervention in Port Colborne is a 1 in 1 million risk derived in accordance with his method of analysis. He does not indicate if the same policy should apply to nickel in the air in Ottawa, Toronto and the rest of Southern Ontario, where his

37

MOE March 2002 Report, Part B, p. 81; Crown Record, Vol. III, Tab F Review of Dr. Tor Norseth, p.5; Inco Record, Vol. IV, tab 7A, p. 1316 Letter of Mark Richardson to Eric Gillespie, p. 2; Plaintiffs Supplementary Record, tab 2A, p. 62 Becking Report, p. 18; Inco Record, Vol. III, tab 2B, p. 1220 Supplementary Affidavit of Dr. George Becking, para. 17; Inco Record, Vol. IV, tab , p. 1310 Affidavit of Dr. Bruce Conard, para. 68; Inco Record, Vol. I, tab 1, pp. 27-28

- 28 method of analysis likewise leads to calculated risk levels well in excess of such an intervention level.38 58. More importantly for present purposes, outside of the realm of policy, low levels

of risk from a given environmental condition have important implications with respect to any attempt to attribute causation of a health effect to that condition. In particular, it makes the task of attempting to show a causal connection that much more individualized. As Dr. Becking has explained: [O]ne cannot infer causality on an individual basis without a thorough assessment of the individual in question; that is, his/her symptoms, personal and family medical history, lifestyle, diet, occupation and other individualized factors, including a detailed exposure assessment. This is particularly important when the estimated risk from the alleged causal agent is low, and the disease is known to occur independently of the chemical. For example, if one is examining the possible individual

causation of birth defects by a particular substance [one of the effects alleged by the plaintiff], consideration must be given to the fact that there is a background incidence of birth defects as a result of nonspecific genetic and/or environmental factors. And, birth defects can occur in the absence of the substance under investigation, from insufficient intake of folic acid or by the excess consumption of alcohol during pregnancy. Even for chemical exposures, there is a variation in response within any group of individuals exposed to the same dose. For example, not all women taking the same dose of thalidomide gave birth to infants with birth defects, indicating other individualized factors (e.g. day of gestation

38

Mark Richardson, Assessment re Arsenic Contamination in Wawa, Appendix 1; Joint Compendium of Exhibits and Answers to Undertakings, Vol. II, tab J(2) Compare Letter of Mark Richardson to Eric Gillespie, p. 2; Plaintiffs Supplementary Record, tab 2A, p. 62 (calculating that 1 in 1 million risk occurs at a concentration of 0.0008 g/m3) with March 2002 MOE Report, Part B, Appendix 1, p. 2; Crown Record, Vol. II, tab F (showing measured air levels of respirable-size nickel to be about 4 times this level in Ottawa, 5 times this level in Toronto and 7 times this level in Port Colborne)

- 29 for administration of drug) played a role in the generation of such adverse effects. Another example is the development of respiratory cancer in humans. Both smoking and diet are known to be environmental risk factors for the development of lung cancer, in the absence of exposure to any suspected chemical substance. Through well designed and executed studies of populations, epidemiology can infer general causality; that is, whether an agent has the capability of causing a disease, but not whether it did cause a specific individuals disease. Studies of individual causation will need to utilize similar

procedures as those employed in clinical medicine to make detailed assessments of individual patients. As pointed out above, the plaintiffs risk assessor agrees that assessing individual risk and attributing individual causation of disease necessarily involve fact-intensive individualized inquiries.39 3. 59. Determining Property Effects and Their Cause The only evidence in the record concerning the process by which property-value

effects and their causes can be determined is that of Dr. Frank Clayton. Dr. Clayton is a widely recognized expert on urban growth processes and real estate markets, trained in economic and statistical analysis of housing markets. He has conducted site-specific real estate market

analyses and, before establishing his own real estate research and consulting firm, worked for CMHC in urban and regional economic and housing analysis, housing data, and housing policy.40 60. According to Dr. Claytons evidence which was not controverted or cross-

examined, the process for determining whether, and the extent to which, individual property owners in Port Colborne have suffered economic losses as a result of possible effects of Incos
39 40

Becking Report, pp. 21-22; Inco Record, Vol. III, tab 2B, pp 1223-24 Affidavit of Dr. Frank Clayton, Ex. A; Inco Record, Vol. III, tab 3A, pp. 1234-35

- 30 refinery on property values is an extremely difficult one that is inherently a property-specific and owner-specific inquiry.41 61. Dr. Clayton explains that a houses value at any given point in time is function of

a complex set of factors that include its size and configuration, number of bedrooms, bathrooms and fireplaces, age and condition, renovations, neighbourhood incomes and houses, proximity to amenities, property tax rates, local crime rate and others. A close examination of an individual property in question is necessary to determining whether and to what extent particular factors affect that homes value.42 62. For illustrative purposes, Dr. Clayton compiled and examined sales data from Port

Colborne and other area towns from 1998-2001. This data does not show a noticeable change to the overall residential property market in Port Colborne following the public announcement concerning higher than expected soil contaminant results in September 2000. In fact, the biggest jump in Port Colborne average sale prices occurred in the period immediately following the announcement: prices went up about $8,000 (about 9%) between the 10-month period preceding September 2000 and the 10-month period following September 2000. This jump was greater in both absolute and percentage terms than increases over the same periods in Welland, Niagara Falls and Fort Erie.43 63. The plaintiff has put in evidence showing a somewhat lower rate of price

increases in Port Colborne from differently selected periods e.g. an increase of $3,000 or 2.8% from the 12-month period preceding October 1, 2000, to the 12-month period following October 1, 2000. The plaintiff also put in data showing a very sharp decrease in average sale prices in the
41 42 43

Affidavit of Dr. Frank Clayton, para. 4; Inco Record, Vol. III, tab 3, p. 1226 Affidavit of Dr. Frank Clayton, paras. 5-8; Inco Record, Vol. III, tab 3, pp. 1227-28 Affidavit of Dr. Frank Clayton, Ex. C; Inco Record, Vol. III, tab 3C, p. 1239

- 31 Rodney Street area in the 12-month period following October 1, 1999 i.e. in the year prior to the September 2000 announcement with prices actually recovering somewhat following the announcement of the higher than expected soil nickel measurements in the area. This data is flatly inconsistent with the plaintiffs evidence that the September 2000 announcement was the only general event of any significance in the Rodney Street housing market since 1998.44 64. The plaintiffs factum, at paragraphs 22 and 54, seems to backtrack and suggest,

presumably to be more consistent with the data, that news of the contamination actually emerged earlier than September 2000. While such an approach (had it not been contrary to the plaintiffs own evidence) would partially dodge the inconsistency with the data, it would require an even more searching individualized inquiry since there was general awareness of heightened metal levels for decades prior to September 2000 and no discrete event to which the plaintiff has pointed or can point other than the September 2000 announcement. In the words of the

plaintiffs witness, the only major event that has taken place in Port Colbornes real estate market since October of 1998 is the announcement of contamination in the Rodney Street area. Each homeowners situation would be that more idiosyncratic.45 65. It was also revealed on cross-examination of the plaintiffs real estate agent that

the Rodney Street figures presented were based on a handful of sales and unrefined data selection. No attempt was made to show statistical significance or statistically valid associations or conclusions, and it is highly doubtful any could be possible on the limited data. In particular, there were only four Rodney Street sales in 1999, 6 in 2000 (3 before and 3 after September

44

Affidavit of Rose Wallington, Ex. A; Plaintiffs Supplementary Record, tab 4A, pp. 92-94 Affidavit of Bill Berkhout, para. 12; Plaintiffs Supplementary Record, tab 5, pp. 98-99 Supra note 16 (citing evidence that the critical announcement was made in September 2000)

45

Affidavit of Bill Berkhout, para. 12; Plaintiffs Supplementary Record, tab 5, pp. 98-99

- 32 2000) and 3 in the first 9 months of 2001. The plaintiffs consultant (who happens to be the daughter of the representative plaintiff in another class action brought by plaintiffs counsel) uncritically relied on all sales reported in the MLS system without any attempt to detect or filter out possible non-arms length transactions. She testified that she did not look behind the listed sales figures because she was not asked to do so by plaintiffs counsel. Thus, for example, she did not exclude a house over which the tenant had a right of first refusal or conduct any investigation as to whether this or any other listed sales might not have been entirely armslength. Given the very limited number of annual sales in the Rodney Street area, excluding that one house from her data pool would have increased the average sale price by 20% in the relevant period.46 66. Moreover, the plaintiff presented no evidence about the nature of the process

required for determining the existence, cause and extent of possible property-related gains or losses over time for any individual home. Dr. Clayton, on the other hand, pointed out that while the data does not rule out the possibility that a particular property suffered a property value impact as a result of the announcement, it does reinforce the conclusion that a case-by-case assessment is unavoidable if one is to attempt to estimate the existence and extent of any such impact on individual properties. In addition, Dr. Clayton observed that, even if a property value impact can be shown and causally linked to a particular environmental factor to the exclusion of all others, a further individualized analysis is required to determine the actual economic effect such an impact had on the individual property owner. The existence of any gain or loss depends upon, among other things, when a property owner bought, sold, and/or refinanced his home and the knowledge or perception of the parties at the time of the various transactions.47

46 47

Cross-Examination of Rose Wallington, pp. 8-10, 12-15, 23-24, 26-28, 30, 42-43, 49-50 Affidavit of Dr. Frank Clayton, paras. 16-19; Inco Record, Vol. III, tab 3, pp. 1230-31

- 33 4. 67. Determining Agricultural Effects and Their Cause The largest claims anticipated by the plaintiff are those of farm claimants,

predicted to range up to $500,000 per claimant.48 68. The only evidence concerning the necessary steps for evaluating the cause and

extent of alleged plant and agricultural crop effects was that of Ron Pearson, an expert in phytoxicology who was a leader in developing and writing Ontarios current Guideline for Use at Contaminated Sites in Ontario when he was employed by the MOE. Mr. Pearson has published extensively on the effects of air and soil pollutants on vegetation and agricultural crops.49 69. According to Pearson, identifying any crop loss damage due to nickel or other

form of phytotoxicity requires assessment on a property by property basis. . . . [T]here is no scientific basis for assessing such damages based solely on the location of a given farm property in one or more alleged zones of soil metal contamination.50 70. Pearson outlined the major steps involved in attempting to prove or rebut a claim

that crop loss was caused by nickel in the soil in a given field: The field must be sampled to determine its nickel levels. Testing to date has shown a wide variance in nickel levels and thus it is impossible to reliably predict nickel levels without testing. Each crop would have to be visually assessed for evidence of nickel-related toxicity symptoms which vary between crops and even between cultivars of the same crop.

48 49 50

Affidavit of Wolfgang Kaufmann, paras. 62-65; Plaintiffs Record, Vol. I, tab 3, pp. 40-41 Affidavit of Ron Pearson, Ex. A; Inco Record, Vol. III, tab 4A, pp. 1267-71 Affidavit of Ron Pearson, para. 11; Inco Record, Vol. III, tab 4, p. 1260

- 34 Affected tissues would have to be sampled and analyzed to confirm that any foliar symptoms are consistent with generally accepted phytotoxicity thresholds and to rule out mimicking symptoms caused by other agents (e.g. insect damage, nutrient deficiencies). Measured soil metal concentrations would have to be considered in relation to variables that influence the availability of the metal to plant roots, its uptake and accumulation by plants and its impact on growth/productivity, including soil type (e.g. clay/silt/sand composition, organic matter content), soil acidity, soil nutrient status and soil metal chemical form. Other factors that significantly influence potential crop yield at a given farm property would have to be considered, including meteorological influences, soil capability classification and farm management practices (e.g. weed control, soil drainage, varietal selection, seed quality, planting date, soil pH maintenance)51 71. According to Mr. Pearson, [w]ithout specific information on these factors on a

year-by-year and field-by-field basis, it would not be possible to ascribe variations or reductions in crop yield . . . to a single component such as soil nickel concentration. By way of example, Mr. Pearson shows the high degree of variability from one year to another in the data for overall grain corn yields collected for the Niagara region. In sum, the determination of crop

productivity impacts at a given soil nickel concentration must be conducted on a year-by-year, field-by-field, and crop-by-crop basis, with observations by trained professionals, sampling and analysis of crop tissues and soil for various elements and an evaluation of individual farmers crop and soil management practices, all of which directly affect crop yield potential in any given field in any given year.52 5. Determining Local Subsidence Effects and Their Cause

51 52

Affidavit of Ron Pearson, paras. 16-23; Inco Record, Vol. III, tab 4 pp. 1261-64 Affidavit of Ron Pearson, paras. 24-25; Inco Record, Vol. III, tab 4, pp. 1264-65

- 35 72. The plaintiff has alleged that homes in the Rodney Street area have suffered

settlement damage as a result of soil subsidence caused by nearby pumping of groundwater at the refinery site.53 73. Inco began studying groundwater at the facility as part of developing a closure

plan for the facility under the Mining Act. After testing the feasibility of pumping in the bedrock to prevent the escape of any contaminated groundwater, in 1998 Inco installed a purge well system to capture potentially contaminated groundwater. Although there are no data showing any settlement in the area as a result of the system or any pressure reduction in the soil profile, the plaintiff has attached to his materials a letter from a consulting engineer stating that it is reasonably probable that the purge well system has caused or contributed to soil settlement in the area. This conclusion, reached after a one-day visit to the area, was based merely on general reports of settlement by local residents, the location of the purge wells and the generally soft nature of the soil in the area. The letter makes the assumption that settlement damage occurred within about the last three years (i.e. after the installation of the purge well system).54 74. The plaintiff, however, has not put in any evidence as to what steps are necessary

either to determine whether settlement damage has actually occurred at a given home or whether any such damage was caused by the purge well system. The only evidence on this subject, which is unchallenged, is that of Bryan Watts, P. Eng., a geotechnical engineer with extensive experience in the design of foundations on weak, compressible soils and, in particular, on peats and organic silts and clays (common soil components in the Rodney Street area). Mr. Watts and

53 54

Affidavit of Wilfred Pearson, para. 13; Plaintiffs Record, Vol. I, tab 2, p. 12 Affidavit of Bryan Watts, P. Eng., paras. 10-11; Inco Record, Vol. III, tab 5, p. 1283 Supplementary Affidavit of Wolfgang Kaufmann, Ex. A; Plaintiffs Supplementary Record, tab 3A, pp. 67-69

- 36 engineers working with him have visited the facility, examined the subsurface operations at the facility, inspected the Rodney Street neighbourhood and studied ground conditions in the area.55 75. Mr. Watts notes that while some homes in the neighbourhood display signs of

stress possibly due to settlement, most do not exhibit any visible damage. He explains that determining the cause of any existing damage for any particular home would have to be a highly home-specific and location-specific inquiry, and this is especially so in the Rodney Street area. In particular: Homes in the area are old and of modest construction and quality. Many have timber foundations that are susceptible to rot without proper treatment and maintenance. The area is low-lying near the shore of Lake Erie. The ground is comprised of discontinuous deposits of compressible peat/clay/silt soils and infill of variable thickness resting on bedrock. Peat is one of the most compressible soils in nature and, if not properly treated prior to development, will always lead to settlement over time. Yet there is no indication of consistent site preparation in the area. Because of the discontinuous and variable nature of the soil, each house is subject to its own set of ground conditions. In such ground conditions, numerous factors that could likely cause or contribute to home damage are especially important to consider, including (i) poor maintenance, (ii) excavation work, (iii) poor drainage conditions, (iv) aging, (v) poor site development, (vi) poor construction, (vii) poor interior renovations, (viii) additions and construction of adjacent homes, and (ix) the accumulated or combined effects of some or all of these. Other site-specific factors that an engineer would have to look include the homes distance from the purge wells, its proximity to the lake and other sources of watering and dewatering (like storm runoff).56
55

Affidavit of Bryan Watts, P. Eng., paras. 2-4; Inco Record, Vol. III, tab 5, p. 1281

- 37 76. Moreover, each house itself and its history of damage, if any, would have to be

analyzed carefully to determine what was the cause of the alleged damage. For example, photographs and other historical evidence are necessary to assess when and how quickly damage occurred in assessing causation it is obviously important to know whether settlement damage dated from prior to the installation of the purge well system in 1998. The critical importance of this home-specific information is demonstrated by the evidence of the plaintiff himself. According to the plaintiff: In June of 1992, I first observed that portions of the middle of our home were beginning to shift and sag towards the east. In the spring of 1995, I first observed that portions of the foundation . . . were starting to develop significant cracks. That is, even the one allegation of home damage particularized in the pleadings will have to account individually for the fact that it dates from three to six years before the Inco purge well system went into operation.57 E. The CBRA and the Regulatory Process Underway in Port Colborne 1. 77. The CBRA The CBRA emerged out of discussions among the City, the MOE and Inco in the

late 1990s. The enactment of environmental guidelines governing development of properties had raised concerns about the number of properties in Port Colborne which might become subject to remediation or assessment. Typically, if soil conditions on a property exceed generic limits under the guidelines, either cleanup to the generic level or a site specific risk assessment (SSRA)

56 57

Affidavit of Bryan Watts, P. Eng., paras. 5-9, 14; Inco Record, Vol. III, tab 5, pp. 1281-82, 1284 Affidavit of Bryan Watts, P. Eng., para. 15; Inco Record, Vol. III, tab 5, p. 1284 Affidavit of Wilfred Pearson, para. 12; Plaintiffs Record, Vol. I, tab 2, p. 11

- 38 is required before the property can be redeveloped or rezoned. An SSRA is an involved process whereby, through study and testing, risk-based soil guidelines specific to the property in question are developed at the property owners expense and any necessary remediation is then carried out. In the case of Port Colborne, a thousand or more properties might have been subject to SSRAs in order to be eligible for rezoning or development as a result of anticipated levels of nickel, copper or cobalt in the soil. As a practical matter, that many SSRAs could take decades to complete, obtain MOE approval and implement and each would be the responsibility of individual landowners to obtain.58 78. Inco recognized that historic operations of its refinery in Port Colborne,

especially in earlier years, had resulted in the accumulation of these substances in area surface soils. Inco felt a social responsibility to assist Port Colborne residents with assessment and possible remediation of their lands to the extent current conditions were linked to emissions from the refinery. Inco therefore undertook to fund and carry out a comprehensive risk assessment for the entire Port Colborne community and to implement any remediation called for as a result. This process came to be called the Community Based Risk Assessment or CBRA. The concept was approved in principle by the MOE (and recognized as an appropriate surrogate for the SSRA process) in late 1999 and by the City in March 2000.59 79. Inco retained a consultant to develop the technical details of the CBRA and also

agreed to pay for an independent technical consultant to advise the Public Liaison Committee (PLC) appointed by the City Council as the publics representative in the process. In

November 2000, Incos consultant presented a report laying out the technical scope of work for
58

Affidavit of Dr. Bruce Conard, paras. 78, 80; Inco Record, Vol. I. tab 1, pp. 31-32 Affidavit of Kal Haniff, paras. 3-9; Crown Record, Vol. IV, tab 3

- 39 the CBRA. The PLC, the City Council and the MOE approved the scope of work in December 2000 and January 2001.60 80. The CBRA is based on the SSRA approach under the MOEs decommissioning

guidelines but is designed to be applicable to multiple properties instead of just one. This is to be accomplished by, among other things, the construction of a computer model for estimating risk, into which the precise soil parameters of individual sites would be fed. The model would then indicate whether risks exist for the site given its unique soil characteristics, its proposed use, the composition and concentration of metals and numerous other factors and what remediation, if any, would be appropriate for the site. The studies, assessments and collection of scientific data required for such a model are extensive. They include, among other things, human health risk assessments and ecological risk assessments for each chemical of concern identified in the CBRA (nickel, copper, cobalt and arsenic).61 81. Once the CBRA model is fully constructed, and approved by the MOE, individual

property sampling will begin. Suitable remediation, if and where called for by the CBRA model, will depend on individual property characteristics. Both the risk assessment and remediation phases are being fully funded by Inco, with the assessment portion alone having a cost in excess of $5 million. In the absence of complications arising from this lawsuit or otherwise, the CBRA

59 60

Affidavit of Dr. Bruce Conard, paras. 79, 81-82; Inco Record, Vol. I. tab 1, pp. 31-32 Affidavit of Dr. Bruce Conard, paras. 85-86; Inco Record, Vol. I. tab 1, pp. 31-32 Affidavit of Kal Haniff, paras. 10-11; Crown Record, Vol. IV, tab 3

61

Affidavit of Dr. Bruce Conard, paras. 84, 87-91; Inco Record, Vol. I. tab 1, pp. 31-35 Affidavit of Paul Nieweglowski, para. 54; Crown Record

- 40 model is expected to be substantially complete by the end of 2002 with remediation, if and where called for, to begin thereafter.62 82. In conjunction and in parallel with the CBRA, and in response to public input,

much other work is being and will be carried out at Incos expense, such as an occupational clinical survey of former and present Port Colborne refinery workers and an extensive human health study of the community, which includes a number of sub-studies, to comprehensively assess the current health of City residents. Another study is looking at property value impacts on residential properties. (As discussed below, an attempt to carry out a related health study by the Region for the Rodney Street neighbourhood was scuttled due to poor participation after class counsel mounted a public campaign attacking it.)63 2. 83. Advantages of the CBRA The CBRA offers Port Colborne community-wide assessment and necessary

remediation on a no-questions-asked basis, entirely at the expense of Inco: (i) beneficiaries do not have to show that all or most of any chemicals of concerns found on their property actually originated with Inco; (ii) beneficiaries do not have to show that they or their property were caused any actual harm; (iii) beneficiaries do not have to show legal liability on the part of Inco and are not subject to legal defences Inco would have in court; (iv) beneficiaries do not have to show that the CBRA model, constructed in accordance with the conservative principles of risk assessment, yielded results for their properties that would meet far stricter judicial standards of

62

Affidavit of Dr. Bruce Conard, paras. 92-93; Inco Record, Vol. I, tab 1, pp. 35-36 Affidavit of Kal Haniff, para. 12; Crown Record, Vol. IV, tab 3

63

Affidavit of Dr. Bruce Conard, para. 98; Inco Record, Vol. I, tab 1, pp. 37-38 Affidavit of Paul Nieweglowski, paras. 10-13; Crown Record

- 41 proof requiring a balance of probabilities; (v) residents do not forgo any rights to seek further financial compensation in addition to the cost of the assessment and remediation Inco is providing.64 84. As a scientific undertaking, the CBRA employs an open and consultative, rather

than adversarial, approach. It brings together the collective wisdom of independent experts advising the public, the MOE, the Region and Inco. It seeks scientific consensus based on the most advanced and comprehensive assembly of scientific knowledge in the relevant fields. Such a process is a far more appropriate method for addressing evolving and complex scientific questions than an adversarial approach.65 85. Because it has the official sanction of the relevant governmental and regulatory

bodies and extends to all of Port Colborne, the CBRA will ensure not only that individual properties are approved and safe for use and development but also that Port Colborne as a whole is recognized as a healthy place to live with all of its lands safe for productive use. Thus, in terms of the value it offers to City residents, the CBRA will provide for full community-wide cleanup to regulatory standards and supply substantial accumulated information about community health and welfare. In addition, the expert evidence shows, a comprehensive

community-wide remediation effort such as the CBRA tends to have a pronounced effect on

64

Affidavit of Dr. Bruce Conard, paras. 94-95; Inco Record, Vol. I, tab 1, pp. 36-37 Affidavit of Paul Nieweglowski, para. 52; Crown Record

65

Affidavit of Dr. Bruce Conard, para. 95; Inco Record, Vol. I, tab 1 pp. 36-37 Affidavit of Paul Nieweglowski, para. 51; Crown Record Affidavit of Dave McLaughlin, para. 80(c), (g); Crown Record, Vol. I, tab 1 Affidavit of James Smith, para. 50; Crown Record, Vol. II. tab 2

- 42 eliminating any stigma effects on property, thereby further benefiting the City as a whole and individual residents.66 3. 86. Outside the CBRA the Regulatory Process The CBRA is only one, albeit an important, aspect of the process underway in

Port Colborne to address environmental concerns, both Inco-related and beyond. The Rodney Street risk assessment by the MOE and remediation by Inco has gone ahead separate from and in advance of the CBRA schedule. The Region has also carried out a lead screening study for over 1,000 Port Colborne residents (finding normal overall blood levels). The MOE has carried out extensive soil sampling at area schools. The Region has attempted to carry out its own broad health study in the Rodney Street area. Long prior to this lawsuit, the MOE has been actively engaged in Port Colborne and, among other things, has conducted a detailed human health risk assessment for all of Port Colborne finding no increased risk of adverse health effects.67 87. Furthermore, the MOE has fully engaged its regulatory jurisdiction. For example,

in its March 2002 Order, the MOE has not only required a cleanup of the holdout properties in the Rodney Street area (which plaintiffs counsel has blocked to date) but also requires sampling and remediation for the remainder of Port Colborne. The regulatory process not only brings to bear the scientific and environmental resources of the MOE but also offers interested persons

66

Affidavit of Dr. Bruce Conard, para. 96; Inco Record, Vol. I, tab 1 p. 37 Affidavit of Dr. Frank Clayton, paras. 20-24 and Ex. D (Dale, et al., Do Property Values Rebound from Environmental Stigmas? Evidence from Dallas); Inco Record, Vol. III, tab 3, pp. 1231-32

67

Affidavit of Dr. Bruce Conard, paras. 97-98; Inco Record, Vol. I, tab 1, pp. 37-38 Smith Affidavit, paras. 3-18; Crown Record, Vol. II, tab 2

- 43 opportunities for input and intervention, including a statutory right of appeal before an expert tribunal recruited from a variety of scientific and environmental disciplines.68 F. The Activities of Plaintiffs Counsel and the Plaintiffs Ability to Adequately Prosecute this Action in the Interests of the Community 88. Since this proposed class action was launched, plaintiffs counsel has put forward

a series of misleading and alarmist press releases and media information, has threatened to have schools shut down, has publicly promoted health scares with one-sided, incorrect or misleading information, has consistently stonewalled remediation efforts in the Rodney Street area and has attempted to limit Incos ability to collect environmental information at the request of the MOE. Late last year, plaintiffs counsel campaigned against a $1 million health study commissioned by the Regional Public Health Department and succeeded in having it cancelled through low participation.69 89. Plaintiffs counsel has also sought to divert community views that do not further

the agenda of this lawsuit and the activists from the Rodney Street area who promote it. The plaintiff put forward Ellen Smith, a Rodney Street resident who executed a lengthy affidavit widely condemning the CBRA process, ostensibly as a voice of a unelected, unrepresentative pressure group called Neighbours Helping Neighbours. 90. After seeing Ms. Smiths affidavit posted on plaintiffs counsels website, another

Port Colborne resident and voluntary member of the PLC, Paul Dayboll, approached plaintiffs

68 69

Affidavit of Kal Haniff, paras. 13-51; Crown Record, Vol. IV, tab 3 Affidavit of Dave McLaughlin, para. 80(k); Crown Record, Vol. I, tab 1 Affidavit of Dr. Bruce Conard, paras. 66-70, 99-100 and Ex. Q; Inco Record, Vol. I, tab 1, pp. 26-28, 38-39 Affidavit of Joseph Starkman (Indoor Sampling Motion), paras. 17-18 and Exs. 5-10, 14, 16; Inco Record (Indoor Sampling Motion), tabs A, A(5-10), A(14), A(16), pp. 6-7

- 44 counsel and expressed concerns that Ms. Smiths affidavit would be misleading to the court as it was not reflective of the reality of the CBRA and the PLC. He asked if counsel would assist him as a citizen of the class in composing an affidavit to aid the court with more accurate information. Plaintiffs counsel refused to assist Mr. Dayboll to correct the record, telling Mr. Dayboll that he should have been either on side or working with them six months ago. Stymied, Mr. Dayboll then approached the City whose solicitors facilitated him in preparing an affidavit with the information he felt was important for the court to appreciate. Among other things, Mr. Dayboll observed that in his experience Ms. Smiths views do not reflect those of the community at large in Port Colborne and her statements about CBRA process were inaccurate in various respects. Mr. Dayboll stated on cross-examination that there is broad support within the community for the CBRA. As a process that leaves a substantial amount of input and control in the hands of the community, its the best process on the go at this time.70 91. Plaintiffs counsel also tenders competing versions of matters depending on the

immediate courtroom objective. For example, Ms. Smith was put forward for this motion to give evidence about concerns that Beak Environmental and its principal Jim Bishop, scientific consultant to the PLC, are captive of industry and have a potential for bias. Yet the same Jim Bishop of Beak is being put forward by plaintiffs counsel as an expert (objective and suitable to assist the court) in another environmental class action brought against the Town of Fort Erie. Ms. Smith was also put forward to express a general lack of faith in the CBRA process. By contrast, in a solicitors affidavit filed by Wolfgang Kaufmann in support of the plaintiffs indoor sampling motion, Mr. Kaufmann tried to convince the court of the numerous safeguards [of the CBRA], including a quality assurance/quality control programs administered by independent
70

Cross-Examination of Ellen Smith, p. 15 Cross-Examination of Paul Dayboll, pp. 2-10, 13

- 45 experts in the course of the plaintiffs attempt to attack and prevent any environmental work that circumvent[s] the CBRA.71 92. Thus far, besides impairing scientific sampling and studies and preventing

remediation called for by the MOE, the activities of counsel have slowed down the CBRA process and made it less open than it otherwise would have been. Whether the CBRA will continue at all if the proceeding is certified as a class action and questions of environmental assessment, remediation and responsibility become issues for courtroom resolution is something that cannot be predicted before the scope and implications of any certification order are known and understood.72 93. At the same time that they seek to bind all residents of Port Colborne to a litigated

resolution of these issues, there is no evidence that the plaintiff and those backing this action have the financial ability or willingness to adequately fund this proceeding if it goes forward as a class action intended to address the full range of historical, industrial environmental, medical, agricultural and economic issues raised by the plaintiffs claims: (a) For months, the plaintiff did not pay over $30,000 in costs ordered by this court to be paid forthwith last fall and winter despite repeated demands for payment. On cross-examination, the plaintiff testified that he does not have the ability to comply with that order and he will not have the ability to pay the costs of the certification motion. On May 21, 2002, just prior to the certification hearing,
71

Affidavit of Ellen Smith, paras. 48, 81-83; Plaintiffs Supplementary Record, tab 6, pp. 115, 125-26 Cross-Examination of Wolfgang Kaufmann, pp. 16-20 & Ex. 1 Affidavit of Wolfgang Kaufmann (Indoor Sampling Motion), paras. 6, 8, 13; Motion Record (Indoor Sampling Motion), tab 2, pp. 11-13

72

Affidavit of Dr. Bruce Conard, para. 99; Inco Record, Vol. I, tab 1 p. 38 Affidavit of Paul Nieweglowski, para. 39; Crown Record Cross-Examination of Dr. Bruce Conard, pp. 24-25

- 46 counsel for Inco finally received a cheque for the outstanding costs owed to Inco ($20,000), drawn on the account of Daoust Vukovich.73 (b) Nevertheless, the plaintiff has put forward no evidence that he has access to any alternative source of funding to adequately prosecute this action to completion. To the contrary, plaintiffs counsel has blocked all inquiry into the existence of adequate arrangements to pay suitable experts as the action goes forward, and plaintiffs counsel has made no commitment to continue to finance the litigation. Counsel has only showed a willingness to pay plaintiffs cost liabilities when the certification motion loomed.74 (c) Despite a long list of supposedly retained experts, most of those listed have provided no evidence or any indication of the length or durability of their commitments. Rather, the primary body of expert evidence put forward by the plaintiff on the motion for certification was contained in two conclusory affidavits from Thomas Burnett, a former long-time employee of Inco. On cross-

examination, it became clear that Burnett has devoted little time or resources to any serious analysis of the situation in Port Colborne. He has not taken or caused to be taken any tests or samples, he has relied on plaintiffs counsel to decide on the few samples that were taken, he has received no results, prepared no reports, has undertaken no studies and has difficulty recalling the basis for various statements in his affidavits. At the same time, Burnett has not read and does not even recall seeing the MOEs Rodney Street study the most exhaustive and significant environmental sampling and analysis to date in Port Colborne. He has made no effort to examine the extensive data which the MOE assembled and admits he is in no position to disagree with MOE conclusions based on such data. Burnett has also erred and contradicted himself on fundamental matters of nickel chemistry. Among other things, he has in one place asserted that all nickel in the
73

Cross-Examination of Wilfred Pearson, pp. 6-12 and Exs. 1 and 2; Joint Compendium of Exhibits and Answers to Undertakings, Vol. II, tabs I(6) & (7) Cross-Examination of Wilfred Pearson, pp. 8-9 q. 22 Cross-Examination of Thomas Burnett, p. 9-11 Cross-Examination of Mark Richardson, pp. 8-9

74

- 47 soil is in the form of nickel oxide that cannot dissolve for millions of years yet in another place has speculated that nickel in the soil is regularly being dissolved into ground water.75 G. 94. Response to The Facts As Presented in the Plaintiffs Factum The plaintiffs factum presents a version of the facts that is at the same time

largely tangential to the procedural matters relevant to this motion and highly misleading as to the existence of credible evidence for its assertions and as to the state of the record. In the main, the plaintiffs facts provide more of an (unreliable) account of the merits than they do a basis for the questions of process germane to the test for certification. Therefore, the response here is confined to only a few of the more significant matters that have been mischaracterized in the factum. 95. Paragraph 51 is one example of a large gap between what the evidence says and

what the factum asserts. The factum claims that a health study (conducted in conjunction with the CBRA) has reached a preliminary assessment of medical issues of concern that included high incidences of cancer, thyroid problems, stress/mental health issues, [etc.]. This

assessment, states the factum, confirmed that Port Colborne residents exhibit a higher rate of disease as a result of metals in the soil and these findings have spurred the rest of the study into moving forward immediately. 96. The evidence says no such thing. The cited source is a simplified slide-like

presentation presented to the public about a year ago. This presentation explains the goals and the process of the study and shows that before launching the study the investigators initiated a
75

Cross-Examination of Thomas Burnett, pp. 11-17, 29-30, 32-36, 43-44, 55-56 Supplementary Affidavit of Dr. Bruce Conard, para. 6; Inco Record, Vol. IV, tab 6, pp. 1295-96

- 48 community outreach so that the study would be responsive to perceived concerns of the public. The medical issues of concern are in fact a list of what youve told us i.e. the perceptions of citizens themselves collected in the outreach whose basis in scientific fact the study will examine. To state, as the factum does, that this presentation represents findings of an

assessment confirming that nickel or any other metal in the soil has caused a higher rate of these or any other diseases is a complete misrepresentation. To make matters worse, the factum cites the cross-examination of Dr. Conard, although Dr. Conard expressly warned that its not fair to call the community outreach preliminary work on that study; rather, the outreach was conducted merely to assist the investigators to write a scope of work for the project (which they subsequently did, and more detailed protocols are now underway). Dr. Conard explained that [p]reliminary work means to me that they have started gathering health information in a systematic way, and I do not believe that that has happened. 97. Compounding the misleading use of evidence in this instance is the glaring

omission of directly relevant evidence. The factum fails to mention two completed health studies in Port Colborne that have gathered health information in a systematic way and are in the record. These studies, a 1981 study commissioned by the federal government and a 1997 MOE study, are the only evidence actually relevant to the factums bald assertion about elevated disease in Port Colborne and both flatly contradict it.76 98. The factum employs a similar tactic in paragraph 48 where it states that oats have

shown reduced yields when exposed to 50 ppm of nickel and that the entire area inhabited by the class has been contaminated with nickel above this level, citing the plaintiffs risk assessors

76

1981 Health Study; Inco Record, Vol. III, tab P 1997 MOE Health Study, Inco Record (Indoor Sampling Motion), tab A1

- 49 purported summary of a large body of (unreferenced) literature concerning the phytoxicity of metals. The factum says no more on the subject, thus implying that crops throughout the Port Colborne area can be expected to experience widespread reduced yields. 99. The factum does not mention the extensive evidence in the record detailing years

of study and analysis of actual crop effects in Port Colborne. Those studies have demonstrated a no observable effect level of 2,000 ppm nickel in soil and a lowest observable effect level of 3,000 ppm nickel in soil. On cross-examination, the MOEs Dave McLaughlin, who has

conducted vegetation investigations in Port Colborne since 1977, even specifically explained to plaintiffs counsel that these values apply ever since active nickel operations ceased in the mid1980s with a corresponding reduction in atmospheric nickel (and its contributing effect to phytotoxicity). Despite the concrete evidence on the subject, the factum is content with its misleading implication as a correct statement of the facts.77 100. The factum repeats this fast and loose approach in its discussion of nickel oxide.

Although thoroughly debunked in the affidavit evidence, paragraphs 12-14 and 33-34 reassert as fact a false claim that testing has indicated that most, if not all the nickel in Port Colborne is likely nickel oxide. Indeed, paragraphs 38 and 122(n) emphasize class counsels hard work in trying to spread this misconception publicly. 101. The factum cites the 2002 MOE report and testing commissioned by the plaintiff

and attached to the affidavit of Thomas Burnett. Yet, as discussed previously, the MOE study only presents results from the Rodney Street area and draws no conclusions about nickel speciation anywhere else in Port Colborne. The factum also touts the plaintiffs testing as
77

Affidavit of Dave McLaughlin, para 23; Crown Record, Vol. I, tab 1 Cross-Examination of Dave McLaughlin, pp. 35-39

- 50 representative of nickel in Port Colborne without disclosing that this testing was conducted on a single property on Rodney Street, where nickel oxide is known to be present and the soil situation is well documented to be unique. The complete lack of basis for making assertions about the ubiquity of nickel oxide elsewhere in Port Colborne, and abundant contrary evidence (including far more extensive testing with disparate results from across Port Colborne), was dealt with in detail by Dr. Conard in his affidavit evidence. Nonetheless, the original false claim about what testing . . . has indicated for Port Colborne as a whole is repeated.78 102. Similarly, the factum repeats fallacies relating to health and nickel oxide that were

originally put forward by a non-toxicologist, Burnett, and have been completely rebutted by expert and other authoritative evidence. In paragraph 14 in particular, the factum revives

Burnetts suggestion that speciation of nickel is unimportant to assessing actual health risks (since all the forms found are allegedly classified as Group 1 carcinogens by Health Canada) and therefore one should treat all the many forms of nickel in the soil as essentially the same and any differences are moot. To begin with, as Dr. Conard carefully pointed out, much of the nickel found in Port Colborne is in an insoluble amorphous form that is biologically inert and is not classified as a Group 1 carcinogen. Moreover, as Dr. Conard, Dr. Becking and pages of toxicological authorities emphasize, the form of nickel is paramount, not moot, to the question of carcinogenic potency. Group 1 classification says nothing about a substances degree of carcinogenic potency and Health Canada stresses that potencies vary widely among forms of nickel. Nickel oxide, being insoluble (and, therefore, minimally bioavailable) is in fact one of the safest forms of nickel to ingest and, if inhaled, one of the least potent of the Group 1 nickel forms. As pointed out above and discussed in the toxicological authorities, workers
78

Affidavit of Dr. Bruce Conard, paras. 46-65; Inco Record, Vol. I, tab 1, pp. 20-26 Supplementary Affidavit of Dr. Bruce Conard, para. 7; Inco Record, Vol. IV, tab 6, pp. 1296-97

- 51 regularly exposed to nickel oxide containing refinery dust 100,000 times higher in concentration than Port Colbornes ambient air showed no increase in cancer rates as a result. Despite having all this explained in detail in Incos material, plaintiffs counsel continues to put out public documents that mislead and alarm.79 103. In paragraph 125, the factum states that, beyond establishing remediation

numbers . . . , the CBRA process will not be examining the past or present conduct or actions of any party, including any of the defendants to this action. To begin with, this is untrue for example, a draft study of Incos historical emissions during different periods of operation has already been published in the CBRA process and is contained in the record. Moreover, the assertion ignores that the very premise of the CBRA is Incos assumption of responsibility for assessment and remediation without any requirement that fault be shown in regard to its past conduct.80 104. The plaintiffs factum is even misleadingly selective with the plaintiffs own

evidence. In paragraph 22, the factum states that the uncontradicted evidence is that Pearsons lender declined to proceed with an application for mortgage financing because of contamination. The factum fails to mention that documentation from a recently fulfilled

undertaking reveals that the plaintiff in fact obtained new mortgage financing on his house this year in the amount of $64,575 (which is almost four times what he paid for the house in 1980).

79

Affidavit of Dr. Bruce Conard, paras. 44, 66-70 and Exs. I & O; Inco Record, Vol. I, tab 1, pp. 19, 26-28 and tabs 1I and 1O Supplementary Affidavit of Dr. Bruce Conard, paras. 5-11; Inco Record, Vol. IV, tab 6, pp. 1295-98 Supplementary Affidavit of Dr. George Becking, paras. 16-18; Inco Record, Vol. IV, tab 7, pp. 1309-11

80

Draft Report on Potential CoC Identification Using Emission Inventories and Dispersion Modelling of Inco and Algoma Operations; Crown Record, Vol. I, tab 1E

- 52 The new mortgage, which began to be repaid on March 1, is for a five year term at a 6.00 % annual rate (100 basis points or more below posted rates this year).81 105. More troublesomely, in paragraph 52, the factum appears to deliberately misquote

the evidence of the plaintiffs risk assessor in order to assert something which he did not and could not assert himself. The factum states that [k]nowing what is already known regarding the extent of contamination in Port Colborne, it would also be possible for a clinical epidemiologist to provide statistically reasonable estimates of the number of class members who have likely suffered the specific effects set out in the Summary [the plaintiffs wide-ranging list of health effects] (emphasis added). The factum adds the word statistically to what otherwise is a verbatim quote from Dr. Mark Richardsons affidavit, implying that Richardson is stating that an association can and will be found, in yet to be conducted studies, between metal levels in Port Colborne and dozens of alleged maladies.82 106. Richardson is not an epidemiologist or a medical clinician, but he was careful

enough not to make any such suggestion in his affidavit. No one knows the results of an epidemiological study before it is conducted. In particular, no one knows the statistical

significance of a studys results in advance. As discussed in a highly regarded reference manual prepared for U.S. federal judges, only [o]nce a study has been completed, statistical methods permit an assessment of whether the results of the study are likely to represent a true association

81

Cross-Examination of Wilfred Pearson, pp. 48-50 Mortgage for 97 Rodney Street; Joint Compendium of Exhibits and Answers to Undertakings, Vol. II, tab I(3)

82

Affidavit of Dr. Mark Richardson, para. 12; Plaintiffs Record, Vol. I, tab 4, p. 85

- 53 or random error. Thus, the factums editorial addition of the term statistically is not only unsupported but also unsupportable.83 107. In fact, Richardsons affidavit demonstrates how highly individualized any health

claims are, since usable epidemiological studies typically require ongoing clinical examinations and assessments of large numbers of subjects on an individualized basis. Even then, employing epidemiological results to make a causal determination for an individual plaintiff is beyond the limits of epidemiology. As Richardson acknowledges, determining individual causation is the domain of medical doctors who, through direct examination, diagnostic tests and knowledge of medical history, among other considerations, are able to provide such individual diagnoses.84 PART III LAW AND SUBMISSIONS 108. In Hollick v. City of Toronto, the Supreme Court of Canada denied class

certification of a claim concerning the effects of the Keele Valley landfill over a six-year period of operation. A class proceeding was not preferable because it would not have been a fair, efficient and manageable method of advancing the claim and better avenues existed to address the effects of the landfill and the conduct of the defendant. Even though technical prerequisites to certification were satisfied in Hollick (like the existence of common issues and other requirements of ss. 5(1)(a)-(c) of the Class Proceedings Act), the Court recognized the centrality of the preferability determination of s. 5(1)(d) of the Act and the need to take seriously at the time of certification the reality of the proposed class claims and what would be involved in

83

Cross-Examination of Mark Richardson, p. 7 Reference Manual on Scientific Evidence, Reference Guide on Epidemiology, p. 354 (Federal Judicial Center 2000) [Incos Authorities, Volume I, Tab 1]

84

Reference Manual on Scientific Evidence, Reference Guide on Epidemiology, pp 337, 338-45, 381-82, 38586 (Federal Judicial Center 2000) [Incos Authorities, Volume I, Tab 1]

- 54 litigating them to completion. Like some of the highest courts in the United States, the Court in Hollick decidedly reject[ed] th[e] approach of certify now and worry later.85 109. Like in Hollick, there is no dispute that certain of the technical prerequisites to

certification are met here. The statement of claim alleges a cause of action against Inco, at least in nuisance and negligence. The class has been defined in an objectively identifiable manner (although, as discussed below, the definition lacks a rational relationship to the common issues as required by Hollick). Furthermore, the claims raise some issues that are common, such as issues concerning how Incos facility was operated from 1918 onward and what Incos facility emitted over the 80-year span of the claims. (However, as discussed below, some of the issues that the plaintiff terms common are not common at all.) 110. The inquiry demanded by Hollick, and the main issue here, is whether constituting

a judicial virtual Royal Commission into the operation of the [facility] is, given the nature of the claims as a whole and other mechanisms for addressing these matters, an enterprise that is worth the candle. In Incos submission, it plainly is not. Like in Hollick, any common issue here is negligible in relation to the individual issues and will not in context of the entire claim . . . significantly advance the action.86 111. Furthermore, while in Hollick there was merely an outside fund of $100,000 to

address the environmental impact of the landfill, here there is a multi-million dollar risk

85

Hollick v. City of Toronto, [2001] 205 D.L.R. (4th) 19, at 34-39 (S.C.C.) [Plaintiffs Authorities, Volume I, Tab 2] Southwestern Refining Co. v. Bernal, 22 S.W.3d 425, 435 (Supreme Court of Texas) (citing U.S. Supreme Court) [Incos Authorities, Volume I, Tab 2]

86

Hollick v. City of Toronto (1999), 181 D.L.R. (4th) 426, at 437 (Ont. C.A.), per Carthy, J.A. [Plaintiffs Authorities, Volume I, Tab 6] Hollick, 205 D.L.R. (4th) at 36-37 (S.C.C.) [Plaintiffs Authorities, Volume I, Tab 2]

- 55 assessment underway that is not only examining common issues related to historical emissions from the refinery but is dedicated to funding a community-wide health and ecological assessment and remediation wherever necessary. Likewise while in Hollick there was merely a theoretical possibility of invoking Ontarios comprehensive environmental legislation to address the environmental concerns, here there is the reality of aggressive regulatory engagement and action. 112. There are other serious problems with this proposed class action, including the

fundamental suitability of the plaintiff and his counsel to fairly and adequately represent the interests of the class and the inherently conflicting interest between the plaintiff and much of the class as defined. The plaintiff does not have the means to pursue an action of this nature and has presented no evidence that he has secured resources that can adequately sustain this action to its conclusion. This is of great relevance to the courts role in protecting the interests of the class. Under section 27 of the Act, the determination of any certified issues in this case will forever bind the entire class, no matter how simple or complex they are or how well or poorly they are litigated by the plaintiff. 113. The court must also consider that in this case the binding effect of certification

would force all of the class into an unpalatable election even if victorious on the common issues: class members would then either have to actively pursue the difficult factual and scientific individual issues that remain at their own inconvenience and expense (s. 31(2) of the Act) or forgo their claims forever. In Incos submission, it is inappropriate for one plaintiff and his counsel to force such an election on the citizenship of Port Colborne in a case where the individual issues are as many, complex and fraught with risk as those here. 114. Colborne. In addition, the plaintiff wishes to pursue this claim in the name of all of Port However, the framing of this suit and the highly public tactics of counsel in

- 56 promoting it and characterizing Port Colborne as contaminated and dangerous is surely not in the interests of residents of most of the residential parts of the city, where little or no soil metal elevation has been found. A highly public trial about the contamination of Port Colborne is more likely to impair than further the interests of much of the citizenry of Port Colborne. A. 115. A Class Proceeding is Not a Preferable Procedure In Hollick, the Court emphatically rejected the position that common issues be

looked at in isolation when determining the preferability of a class procedure. The Court instead accepted that the common issues must be viewed contextually, in light of all the issues common and individual raised by the case in assessing whether or not a class action is a fair, efficient and manageable method of advancing the claim. Among other things, the Court made clear if individual issues are so weighty that resolution of the common issues will not significantly advance the action toward conclusion, certification is disfavoured. This

effectively rejected a view previously expressed in various lower courts, including the Ontario Court of Appeal, that the common issues need only involve a matter, that if determined, would move the litigation forward. In addition, the Court emphasized that the preferability analysis requires the court to look at all reasonably available means of resolving the class members claims, and not just at the possibility of individual actions.87 116. Hollick also confirmed that the plaintiff bears the evidentiary burden of showing

that certification is warranted. The plaintiffs factum, at paragraph 180, fundamentally misstates the law in its assertion that the onus is on the defendants to show there is a better way to resolve

87

Hollick, 205 D.L.R. (4th) at 34-37 (emphasis added) [Plaintiffs Authorities, Volume I, Tab 2] Anderson v. Wilson, [1999] 175 D.L.R. (4th) 409, at 420 (Ont. C.A.) (following Campbell v. Flexwatt (1998), 15 C.P.C. (4th) 1 (B.C.C.A.)) [Plaintiffs Authorities, Volume I, Tab 4]

- 57 the common issues than by a class proceeding. On the contrary, as in any motion, the moving party seeking certification must adduce evidence and demonstrate that the requirements of certification (other than the requirement that the pleadings on their face state a cause of action) are met on the evidence. As Justice Winkler has observed, before the court can determine that a class proceeding is preferable, it must ask in light of the evidence adduced: [i]f there is a common-issue trial, where will the case be at the end of it? How much will each individual class member have remaining to obtain relief? What will the cost be for each individual class member, relative to recovery?88 1. 117. The Nature and Scope of the Individual Issues The claims of health and economic harm and causation in this case that will

remain to be resolved individually are of the widest and most variable scope. The plaintiff alleges over 80 years of operation of the refinery have led to dozens of common illnesses, diseases and medical conditions among Port Colborne residents and a broad spectrum of economic harm, ranging from property value impairment to agricultural productivity and business losses. 118. The plaintiff, however, has put forward no evidence directed toward the process,

or form of the action, necessary to resolve such claims, and in particular to prove harm and causation. By contrast, Inco and other defendants have presented a large body of uncontradicted

88

Hollick, 205 D.L.R. (4th) at 32-33 [Plaintiffs Authorities, Volume I, Tab 2] Taub v. Manufacturers Life Insurance Co. (1998), 40 O.R. (3d) 379 (Gen. Div.) [Incos Authorities, Volume I, Tab 3] M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163, at paras. 58-59 (S.C.J.) [Incos Authorities, Volume I, Tab 4] The. Hon. Mr. Justice Warren Winkler, Advocacy in Class Proceedings Litigation, The Journal of the Advocates Society, August 2000 [Incos Authorities, Volume I, Tab 5]

- 58 evidence that claims of this nature, especially in light of what is known to date about the situation in Port Colborne, require massive amounts of individual evidence, both factual and expert, and lengthy individualized consideration.89 119. At the most basic legal level, before monetary liability can be imposed on Inco for

any claim, a causal link between the alleged harm and the actions of Inco must be established. As the evidence demonstrates, the process of determining whether a causal link exists for any given class members for any given allegation of harm is substantial and individualized. Given the dozens of types of harm alleged and the size of the proposed class, certification will launch thousands of such individual trials with hundreds of thousands of individual issues to resolve. 120. The enormity of this aspect of the proceeding renders any common issue

determination insignificant in comparison. An Arizona court was faced with remarkably similar claims of health and stigmatic property effects from a widespread and variable environmental condition and gave detailed consideration of nature of such inquiries and what they would demand of the court process and the parties. The court examined carefully the nature of the individual evidence required, reviewing large amounts of expert testimony similar to that presented here. Many of the courts concluding comments are fully applicable here: Plaintiffs fail to address the nature and sheer number of individual issues which remain even if their classes are certified. The few issues that might be tried on a class basis in this case, balanced against the issues that must be tried individually, indicate that, at best, time saved by a class action will be relatively insignificant. Evidence presented at the hearing demonstrated that numerous individual issues of exposure and causation would remain to be resolved following a class trial. Individual causation is required to determine exposure. The amount of exposure to TCE in groundwater is a product of the duration and concentration of drinking water consumed by an individual. In order to determine how much water an individual consumed an individual analysis of each person is required. Considerable variation of potable water contaminant levels exists with respect to
89

Hollick, 205 D.L.R. (4th) at 29 [Plaintiffs Authorities, Volume I, Tab 2]

- 59 both time and location. In order to develop accurate exposure profiles, it is necessary to develop an accounting of their individual residential, school, and work histories. Individual issues would remain to be determined in analyzing whether alleged ground water contamination affects property value and prices. Areas within the proposed class may be affected by individual factors such as the quality of schools, gang or criminal activity, heavy traffic, industrial pollution or proximity to highways or railroads. Similarly, individual issues would remain in determining causation of different illnesses alleged by plaintiffs from exposure to various sources of TCE. Exposure varies for each individual within a group: When considering each . . . disease alleged by plaintiffs, a physician must determine and consider . . . the exact disease from which the plaintiff suffers; the extent of any exposure . . .; the temporal relationship between exposure and onset of the disease; known or potential causes and/or risk factors for the disease that may be present; and any exposure to the contaminants of concern that are unrelated to drinking water . . . These steps must be applied to each individual independently . . . . Furthermore, individual issues would remain even among particular diseases. A diagnosis of cancer is not specific enough. There are hundreds of different cancers and tumors . . . . Each of these cancers may have different causes and different risk factors and may require different treatments and have different prognoses. Finally, for purposes of actual notice in a statute of limitations context, a person by person inquiry must be made to determine whether each individual had knowledge of problems related to groundwater contamination and exactly when they found out. While the U.S. certification test differs in some respects, in one crucial part it is virtually identical to Ontarios. Just as the Act requires that a class proceeding be preferable the U.S. test requires that it be the superior way to handle the claims. In the Arizona case, the court found that the above considerations weighed strongly against superiority.90 121. Other U.S. cases have also applied the type of scrutiny called for by Hollick to

claims like those made here. In one, a proposed class action claimed that high levels of lead resulting from 50 years of operation of a lead smelter caused wide ranging health and property
90

Cordova v. Hughes Aircraft Co., Case No. C-284158 (Arizona Superior Court July 10, 1996), at pp. 38-39, 48 [Incos Authorities, Volume I, Tab 6]

- 60 harm to residents of the surrounding area. The claims were relatively simple by comparison to the plaintiffs here, in that they involved only one metal and an area only two miles in radius from the smelter. The expert evidence, however, showed that the level of lead deposits varied on any given piece of property and the effects of lead . . . were shown to vary depending on the location of the property, the use of the property, and the characteristics of the propertys inhabitants. Because so many questions of causation and harm would have to resolved

individually, especially given the variety of types of damage alleged, the appellate found that certification was an abuse of discretion. The Supreme Court of Texas later carefully examined the nature of the individual inquiries necessitated by similar wide-ranging health claims and explained why certification had to be denied as not superior:91 Here [the defendant] is entitled to a fair opportunity to individual determinations of causation and damages for each of the 904 plaintiffs . . . . We do not second-guess plaintiffs contention that, from a financial perspective, some claims may not be worth pursuing if class-action treatment is denied. But proceeding as a class action may very well cost more in the long run, if as can be expected here, the class must ultimately be dissolved because there is no manageable way, fair to both parties, to resolve the individual issues. 122. Furthermore, the individual issues here extend well beyond causation and harm,

although these issues are overwhelming in their own right. Among other things, the evidence

91

RSR Corp. v. Hayes, 673 S.W.2d 928 (Tex. App. 1984) [Incos Authorities, Volume II, Tab 7] Southwestern Refining Co. v. Bernal, 22 S.W.3d 425 (Supreme Court Texas 2000) [Incos Authorities, Volume I, Tab 2] See also Ford v. Murphy Oil USA, Inc., 703 So.2d 542 (Supreme Court of Louisiana 1997) [Incos Authorities, Volume II, Tab 8] Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir. 1995) [Incos Authorities, Volume II, Tab 9] Aprea v. Hazeltine Corp., 669 N.Y.S.2d 61 (N.Y. App. 1998) [Incos Authorities, Volume II, Tab 10]

- 61 makes clear that there will also be many highly individualized defences of substantial weight to litigate. With respect to limitations issues alone, the number and scope of individual questions are enormous in the case of each class member, there will have to be multiple inquiries specific to the type(s) of harm alleged, the cause(s) of action relied upon and the knowledge of the class member in light of both general awareness of environmental issues and his or her personal experience with Inco as an employee at the facility or a relative or friend of an employee. As Justice Haines has observed:92 The limitations and laches defences also make these claims difficult, if not impossible to deal with in common. This action was commenced long past the prescription dates that would apply to the claims arising from the allegations of negligence . . . . To the extent any such claims may be saved by the

discoverability rule, there will have to be an independent inquiry conducted of each member of the class to determine if they took action within a reasonable time once they were aware of the harm and its likely cause. 123. There will also be extensive individual questions surrounding the application of

workers compensation legislation and its statutory bar to civil actions. Thousands of Port Colborne residents worked at the Inco facility in different periods, for varying lengths of time and in varying capacities. Others, like the plaintiff himself, entered the facility in the course of their employment for other companies. For each of these class members, there will be

substantial issues of the timing, nature and extent of exposure to nickel and other metals while on the job. Historically, metal levels inside the facility were much higher than those in the greater community. Among other things, the relative contribution of employment-related exposure to

92

M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163, at para. 74 (S.C.J.) [Incos Authorities, Volume I, Tab 4] See also Franklin v. University of Toronto (2001), 56 O.R. (3d) 698, at 714 (S.C.J.) [Incos Authorities, Volume II, Tab 11]

- 62 each alleged health effect will have to be medically assessed in each case simply in order to determine if the statutory bar to civil suit applies. 124. Compounding these individual inquiries is the fact that workers compensation

legislation, which was introduced in Ontario in 1914, has changed many times over the decades. For example, the original act only barred suits against ones own employer. In the 1920s, the bar was extended to all Schedule 1 employers. In the 1940s, the definition of covered industrial diseases was expanded and time limits for the onset of disease were removed. Myriad

amendments were enacted in the 1950s, 60s and 70s. The act was extensively rewritten in the 1980s. Definitions were further changed in the 1990s and in 1997 a new act was put in place. For each class members claims the consequences of workers compensation legislation will depend on the various rules in place at the time(s) of their individual exposures. One

commentator has observed that the full history [of Ontarios act] is still to be written. Any court faced with resolving the individual issues in this case will have the unenviable task of writing that history.93 125. In the plaintiffs factum and proposed litigation plan, vague reliance is placed

on section 24 of the Act (aggregate assessment of monetary relief), apparently as an attempt to avoid or minimize the vast amount of individual issues. However, section 24 is of no assistance. It only applies if no questions of fact or law other than those relating to assessment of monetary relief remain to be determined in order to establish the amount of the defendants monetary liability and the aggregate or a part of the defendants liability to some or all class members can reasonably be determined by proof by individual class members.

93

Garth Dee, Workers Compensation in Ontario, p. 11 [Incos Authorities, Volume II, Tab 12]

- 63 126. The uncontroverted evidence makes clear that very opposite of these conditions

prevail here: vast numbers of questions of fact and law would remain to establish both the existence and amount of any liability. As Justice Somers recently explained in the Divisional Courts Chadha decision:94 Section 24 of the Act . . . cannot resolve these problems of proof [of causation] since damages are only assessed once liability has been established. Similarly, the submission [that the Act was designed to allow claims to be assessed on an aggregate basis] is erroneous. It is not claims or the entitlement to damages which can be assessed on an aggregate basis under the Act, but rather the quantum of damages which can be so assessed. . . . Rather, it is s. 25 of the Act which applies to cases, such as the one at bar, where after a determination of the common issues, individual issues remain with respect to the entitlement to damages. This distinction was recognized and applied by Winkler, J. in Bywater . . .: . . . In my view, the case at bar is not appropriate for an aggregate assessment of damages. The action advances claims for personal injury, property damage and claims under the Family Law Act. These claims cannot, reasonably be determined without proof by individual class members as required by s. 2(1)(c). Furthermore, each individual claim will require proof of the essential element of causation, which, in the words of 24(1)(b), is a question of fact or law other than those relating to an assessment of damages. Furthermore, aggregate assessment cannot be a common issues here because this case does not meet the requirements of ss. 24(1)(b) and (c). Even if by class definition the members of the

The Workmens Compensation Act , 4 Geo. V, c. 25 and various amendments and succeeding legislation [Incos Authorities, Volume II, Tab 12]
94

Chadha v. Bayer (2001), 54 O.R. (3d) 520, at 544, 552-53 (Div. Ct.) (quoting Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172, at 178-79 (Ont. Gen. Div.)) [Plaintiffs Authorities, Volume II, Tab 13]

- 64 proposed class have all suffered exposure to smoke, the extent of such exposure and any damage flowing from it will vary on an individual basis. 127. The plaintiff relies heavily on the pre-Hollick decision Anderson v. Wilson in

which the Court of Appeal allowed certification with regard to the standard of care maintained by certain medical clinics whose patients contracted hepatitis B. Even though causation was necessarily an individual issue for each infected member of the class, the court found that the common issue of the clinics standard of care would move the litigation forward (applying the pre-Hollick test). What is most significant about Anderson is that the causation issue involved a single and rare medical condition from which class members either did or did not suffer and which was either caused or not caused by the administration of a discrete EEG test at the clinics. The individual issues of causation were a fraction of those implicated here, both in number and complexity. There were none of the issues of exposure over time, knowledge, impact, source, myriad common conditions and ailments and disparate claims of business loss, crop loss and property impact.95 128. Anderson, in fact, decidedly rejects any shortcuts in determining causation, such

as those alluded to in paragraphs 168-72 of the plaintiffs factum, that might diminish the defendants substantive right to defend itself against each claim. The court made clear that acceptable flexible procedures do not include reversing the onus of proof or denying the defendant discoveries and trial as to each claim of causation. In Anderson, the causation issues

95

Anderson v. Wilson, [1999] 175 D.L.R. (4th) 409, at 412, 418-21 (Ont. C.A.) [Plaintiffs Authorities, Volume I, Tab 4] See also Endean v. Canadian Red Cross Society, [1997] 148 D.L.R. (4th) 158 (B.C.S.C.) (claims that a discrete condition, hepatitis C, was caused by discrete procedures of blood transfusion in a limited 4-year period) [Incos Authorities, Volume II, Tab 13]

- 65 were not so complex that the necessary individual procedures would be overwhelming in their number or scope. Here, even more so than in Hollick, the very opposite is the case.96 129. After Anderson, in MacDonald v. Dufferin-Peel Catholic District School Board, a

class action was proposed with health claims far closer to (yet still much less expansive than) those made here. The plaintiffs alleged a variety of ailments, from headaches to chest pains, arising from mold in portable school rooms. W. Jenkins J. noted that with such disparate claims there are many factors relating to the individual members of the class, [including] the health of the individual students prior to being housed in portable units, their allergies, the conditions in their homes and whether they were exposed to mold at other locations. The resulting number and complexity of individual issues overwhelmed any common issues and prevents counsel from developing a realistic scheme. Certification was accordingly denied.97 130. The plaintiffs factum cites the civil law case of Quebec (Public Curator) v.

Syndicat national des employs de lhospital St-Ferdinand as an example of a class action damage assessment done entirely without any participation of class members, suggesting that the same can somehow be accomplished here. The case refutes rather than supports the

plaintiffs position. In Quebec (Public Curator), the plaintiff sought merely moral prejudice (non-pecuniary) damages for the emotional upset caused to patients by an illegal strike at a hospital. The very basis the court gave for upholding a group determination of moral damage was a unique feature of the civil law under the civil law, moral damages are determined in an
96

Anderson, 175 D.L.R.(4th) at 419-22 [Plaintiffs Authorities, Volume I, Tab 4] See also Chadha v. Bayer Inc. (2001), 54 O.R. (3d) 520, at 542-44 (Div. Ct.) (The Act must be applied in a manner which is fair to all the parties to the litigation . . . [and] neither its inherent objects nor its explicit provisions can be given effect in a manner which affects the substantive rights of either plaintiffs or defendants.) [Plaintiffs Authorities, Volume II, Tab 13]

97

MacDonald v. Dufferin-Peel Catholic District School Board, [2000] O.J. No. 5014, at paras. 4, 15-21 (S.C.J.) [Incos Authorities, Volume II, Tab 14]

- 66 objective way and the victims condition or capacity to perceive are, therefore, irrelevant. By contrast, the Supreme Court has made clear that, under the common law, [a]n award will vary in each case to meet the specific circumstances of the individual case. As the Ontario Court of Appeal has since put it, the Canadian [common law] approach to general nonpecuniary damages does not emphasize the specific physical injury or disability suffered as much as it does the effect of that injury or disability on the particular plaintiff. Even if the civil laws objective approach applied, the relevant objective facts differ widely from class member to class member, unlike a small group of patients at a single hospital during a short-term strike. Moreover, the individual issues raised by the plaintiffs claims and the nature of the relief sought go well beyond anything considered in Quebec (Public Curator).98 131. It is submitted that Justice Winklers observations in Mouhteros v. Devry Canada

Inc. apply here with particular force: The presence of individual issues will not be fatal to certification. Indeed,

virtually every class action contains individual issues to some extent. In the instant case, however, what common issues there may be are completely subsumed by the plethora of individual issues, which would necessitate individual trials for virtually each class member. Each students experience is idiosyncratic, and liability would be subject to numerous variables for each class member. Such a class action would be completely unmanageable. . . . In my view, certification in this case will result in a multitude of individual trials, which will completely overwhelm any advantage to be derived from a trial of the few common issues.99

98

Lindal v. Lindal, [1981] 129 D.L.R.(3d) 263, at 270 (S.C.C.) [Incos Authorities, Volume II, Tab 15] Koukounakis v. Stainrod (1995), 23 O.R. (3d) 299, at 309 (C.A.) [Incos Authorities, Volume II, Tab 16]

99

Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63, at 73 (Gen. Div.) (approved in Hollick) [Incos Authorities, Volume II, Tab 17]

- 67 2. 132. The CBRA and Regulatory Action The plaintiffs factum flips the preferable procedure inquiry on its head where it The

attempts to show that the CBRA cannot be the preferable procedure (para. 198).

appropriate test is not whether a particular alternative is the preferable procedure. The proper test under the Act and Hollick is the opposite: whether the class proceeding is preferable, not in comparison to a single alternative and not even in comparison to the full panoply of available alternative remedies, options and enforcement regimes for addressing the claims, but in light of all the circumstances, including a frank analysis of where the resolution of any common issues would leave class members. All of the factors should be evaluated collectively and in light of one another and, ultimately, through the lens of the three principal advantages of class actions judicial economy, access to justice, and behaviour modification.100 133. The CBRA is only one aspect, albeit an important one, of the context in Port

Colborne. Complementing the CBRA are Ontarios comprehensive regulatory structure, the assessment and enforcement actions of the MOE, the vigilance of the Regional Public Health Department and the range of private law remedies. 134. In assessing alternative avenues, Hollick does not require a replica of the

proposed class proceeding. The $100,000 small claims fund established in Hollick was hardly capable of providing the $600 million in compensatory and punitive relief sought by the plaintiff. Yet, in the context of the overwhelmingly individual nature of the claims and the strong regime of environmental enforcement in place in Ontario, a class proceeding was not preferable even though the only alternative in place was a token one.

100

Hollick, 205 D.L.R. (4th) at 34-37 [Plaintiffs Authorities, Volume I, Tab 2] Chadha, 54 O.R. (3d) at 540-41 [Plaintiffs Authorities, Volume II, Tab 13]

- 68 135. By contrast, the multi-million dollar CBRA is no token. In several ways, it offers

Port Colborne residents more than the proposed class proceeding possibly could: (a) (b) There is no financial risk to community members. The CBRA is fully funded by Inco from start to finish. There is no legal risk to community members. There is nothing they must prove or show (or forgo) to participate neither fault or liability on Incos part, their own due diligence, actual harm nor anything else. The CBRA requires nothing of them other than their willingness to allow their properties to be tested and, if called for, to be remediated. Scientifically, the CBRA process is comprehensive in a way a courtroom contest of experts could never be. Difficult issues of soil chemistry, toxicity and ecological risk are resolved through collaborative exchanges of independent scientists, not by an overtaxed and underqualified judge attempting to rate whatever evidence each party can afford to put forward. The CBRA employs the highly conservative assumptions of risk assessment (i.e. consistently erring on the side of overprotection) in a way judicial standards of proof do not allow. Adjunct studies of great detail and scientific rigor are being carried out and will provide additional valuable information about the state of health and property in Port Colborne. The plaintiff offers three criticisms of the CBRA in his factum (paras. 197-212).

(c)

(d)

(e)

136.

Each is misplaced. First the CBRA is hardly undefined and contingent. A detailed technical scope of work was approved by all parties by early 2001 and is in the record. The risk assessment phase has been underway for over a year, in accordance with the scope of work, and is due to be completed by the end of 2002 with the remediation phase following. The plaintiff, nonetheless, asserts that many of the studies proposed in the CBRA process are still undefined and incomplete, pointing to such further studies such as the comprehensive human health and property surveys that Inco has agreed to fund and are at various stages. This complaint is passing ironic. The very existence of these further multi-staged studies and the detailed manner in which they are being organized and undertaken is a testament to the size and scope of the CBRA and related commitments. A process as comprehensive and ambitious as the

- 69 CBRA cannot be completed instantaneously and would be much less of a process if it could. The suggestion that the very breadth of the CBRA, which by necessity and design is an ongoing process, somehow renders it deficient is without merit. This is especially so in light of what has been accomplished to date and the undisputed seriousness and expense with which the process has gone forward and continues. 137. The plaintiff also criticizes the CBRA because it allegedly will not review

Incos conduct at any time (past or present) or any aspect of the common issues raised by the class proceeding, such as the existence of a duty of care . . . (para. 204). To begin with, the CBRA does contain a detailed review of the history of Incos emissions from the facility. An extensive report by JWEL, cataloguing emission inventories, was first prepared in draft in November 2001 (and is in the record). More fundamentally, it is surely a great strength, not a weakness, of the CBRA that the benefits it offers do not turn on whether Incos did or did not adhere to historical standards of care in the nickel industry. CBRA provides risk assessment, remediation and comprehensive community health studies which are not contingent on any preliminary determination concerning Incos past conduct. It is hardly a basis for complaint that the CBRA is a no-fault process. 138. Finally, the most serious defect in the CBRA, according to the plaintiff, is that

it does not financially compensate class members (para. 206). In fact, while the CBRA does not offer the breadth of monetary relief the plaintiff seeks, it does confer significant value, individual and collective, on Port Colborne residents. It provides comprehensive and expensive risk assessments and studies of health. It pays for the cost of necessary remediation of individual properties. It provides the basis for well-documented property value benefits which have been shown by economists to be the synergistic result of community-wide remediation. It does all of

- 70 this far more quickly, easily and inexpensively than litigating proposed class members claims through to completion. Furthermore, the CBRA overcompensates some class members because all of these benefits are provided to the community and participating individuals without regard to the existence of actual liability in each beneficiarys case. 139. More fundamentally, as Hollick makes clear, a class action does not become

preferable simply because no replacement scheme is proposed that attempts to match the raw amounts and types of damages claimed by the plaintiff. Rather, the court must ask what will it take, as a practical matter, for an individual class member to ever reach the pie in the sky that an ambitious claim purportedly offers. How much is left for the class member to do on his or her own once viable common issues have been determined and class counsel departs the scene? Is that prospect a realistic and a better one for class members than what is being offered or is possible outside the class proceeding? 3. 140. Certification Will Subvert, Not Serve, the Three Goals of Class Actions In the full context of this matter, certification will set back rather than further the

three goals of class actions identified by the courts judicial efficiency, behaviour modification and access to justice. Judicial Efficiency 141. As discussed, the individual issues implicated by the claims in this case are

overwhelming in number and complexity, rendering any common issue negligible in relation. Rather than consolidate litigation, certification will effectively launch individual litigation of massive scope for which there will be no end in sight. Beyond general references to

flexibility, the plaintiff offers no manageable method consistent with the substantive law and

- 71 procedural fairness to the parties for the court to deal with such an onslaught. conceivable. 142. The plaintiffs factum itself paints a bleak picture of individual litigation (para. None is

182): If individual actions were required, each class member who brought an individual action will have to litigate, and prove the general scope and duration of the contamination, the causal connection, if any, between the contamination and the injuries suffered . . . . The problem, however, is that instead of avoiding this eventuality certification will embrace it for the entire citizenry of Port Colborne. On the undisputed evidence, the issues of contamination, exposure, causation and harm are inherently and inevitably individualized and will remain so notwithstanding any trial about the standard of care in the nickel industry in the 1940s or 50s. The substantial individual litigation that will ensue for 20,000 class members will be at their own expense and risk. The concomitant costs of pursuing such individual trials will not be spread but concentrated on each class member. Behaviour Modification 143. The undisputed evidence (of the plaintiffs own witness) is that in regard to

environmental compliance Inco has been a model corporate citizen for at least as long as the MOE has been in existence. Moreover, the CBRA itself is a shining example of voluntary corporate action prompted not by litigation but by a sense of community responsibility. It is all the more noteworthy that such a process was undertaken by a modern Inco, not because of its own operations, but to address a legacy left by a historical predecessor from a bygone industrial era. Coupled with the modern regulatory framework in the environmental arena (emphasized in Hollick) and the actual engagement by the MOE on the ground in Port Colborne, there is nothing in the way of behaviour modification to be gained by certification.

- 72 144. On the contrary, there is much in terms of responsible corporate behaviour that

certification puts at risk. The CBRA is the first process of its kind in Canada and is not one that is provided for anywhere in Canadas environmental legislation. Rather, it is a product of private corporate willingness to assume responsibility for the legacy of a different industrial era. If the lesson of this case turns out to be that the main reward of sponsoring a CBRA-like process is tagalong class action litigation, few companies will find following the path blazed by Inco a responsible use of shareholders assets. The end result could be a very short history of voluntary CBRAs in Canada. Access to Justice 145. The purported access to justice that certification of common issues would provide

is illusory and, in some respects, is actually negative. Class members would be left far from any justice (i.e. final judgment and monetary relief) at the end of a common issue class trial. At that point, they will be on their own to prove the most difficult parts of their cases. Individual responsibility for costs then arises under section 31 of the Act and the availability of contingency arrangements disappears under section 33. The plaintiffs litigation plan makes clear that class members who then want legal representation to help them proceed will have to retain a personal lawyer.101 146. The plaintiffs factum (para. 189) speaks in generalities of the marshalling [of]

expertise required to assist individual class members. However, it is precisely the complex issues of a scientific, chemical and medical nature that are not susceptible to advancement in a common issues trial because they are individualistic in nature. Any scientific question that can be answered in a broad way has to be phrased so trivially that it will be useless in terms of
101

Affidavit of Wolfgang Kaufmann, Ex. B; Plaintiffs Record, Vol. I, tab 3B, p. 55

- 73 practically advancing individual class members claims. There are no common answers to the questions of individual contamination, exposure, risk, causation, effect and harm which, on the evidence, are idiosyncratic to any given class member and property. 147. For many class members, certification will have the opposite effect of providing

access to justice. Residents will have their lots thrown in to this proceeding unless they read, understand and act on a mass opt-out notice prior to any common issue trial. If the defendants prevail at the common issues trial, all class members claims will be extinguished. Even if the plaintiff prevails on some common issue or issues, class members claims will be effectively extinguished except to the extent individual class members have the desire and wherewithal to press forward on their own, in the timetable of this proceeding, with substantial individual trials. Certification puts each and every resident of Port Colborne (who has not had the foresight to opt out earlier) to this election: either litigate a substantial individual trial at this time of the plaintiffs choosing or forgo your claim. Given the type of individual issues remaining to be proven (which will necessitate discovery and individualized expert evidence) and the expense and risk of such a individual trial (including individual cost consequences under section 31(2) of the Act), this is not a choice that promotes access to justice. 148. The concern is even more profound when one considers that a significant

component of the plaintiffs allegations concern the possibility that diseases and conditions will manifest themselves in the future. It is especially unfair for any future sufferers, who have no way of even knowing who they are, to be put to this election. In other words, given the nature of the claims and the substantial individual commitment required of class member to prosecute

- 74 them to conclusion, class members have a substantial interest in controlling their own litigation, both in terms of timing and substance. Certification deprives them of that right.102 149. In this context, individual actions, with joinder or consolidation where

appropriate, cannot be dismissed as inadequate. The cost barrier to such litigation is high but not significantly higher than the individual issue trials the plaintiff would thrust on the class now. Moreover, individual actions can be brought at the time and place of interested residents own choosing. The plaintiff has put in evidence that his counsel has been personally retained by several hundred households, many in the Rodney Street area who are each alleged to have claims of up to $250,000. If they are interested in bringing personal claims, they have experienced counsel and the ability to pool their resources to do so. If their claims are as substantial as alleged, Hollick makes clear that individual actions should be regarded as worthwhile. 150. From the opposite perspective, given the indisputable scientific novelty of many

of the allegations of harm and risk, a bellwether (test case) approach is far more protective of the interests of other residents than is committing their collective rights to the plaintiffs proposed proceeding. A consolidated individual action by counsels active clients would also have the inadvertent assistance of a large body of work provided by the efforts of the CBRA and the MOE. While such litigation would not be simple, it is far less impractical and potentially prejudicial than the utterly unmanageable class action now being proposed.

102

See, e.g., Georgine v. Amchem Products, 83 F.3d 610, 631, 633 (3d Cir. 1996) (class action is not a superior method for seeking personal injury damages for widespread and varying exposure to asbestos because each plaintiff has a significant interest in individually controlling the prosecution of separate actions) [Incos Authorities, Volume II, Tab 18]

- 75 B. 151. The Plaintiff Has Not Shown He Can Fairly and Adequately Represent the Class It is a separate requirement of section 5(e) of the Act that the representative

plaintiff (and his choice of counsel) be capable of fairly and adequately representing the interests of the class. Similarly, the representative may not have on the common issues an interest in conflict with the interests of other class members. Consideration of these factors also bears on whether the proposed class proceeding is preferable under all the circumstances. 152. One specific element of adequacy is the capacity of the representative to bear

any costs that may be incurred by the representative in particular (as opposed to by counsel or by the class members generally). Certifying a class proceeding without a showing that such capacity exists represents a real danger to class members who stand to have their rights finally adjudicated and who will be bound by the outcome of the proceeding.103 153. The plaintiff has made no showing that he has the capacity to bear the costs to be

incurred in litigating the claims made here. To the contrary, he has candidly admitted that he does not. 154. In such circumstances, it is incumbent on the plaintiff to demonstrate by evidence

that he has secured some source of firm financing or commitment that will be sufficient to prosecute the matter to conclusion and to fund its likely costs. No such showing has been made or attempted here. To the contrary, plaintiffs counsel has blocked all inquiries into the retainers of experts and the existence of a financial ability to adequately sustain the action (at the same time his litigation plan asserts, without specificity or evidentiary support, that public donations, private contributions and corporate donations will be available). As the record
103

Western Canadian Shopping Centres Inc. v. Bennett Jones Verchere, [2001] 201 D.L.R. (4th) 385, at 402 (S.C.C.) [Plaintiffs Authorities, Volume I, Tab 1]

- 76 stands, neither plaintiffs counsel nor any identifiable organization has made an adequate commitment to the ongoing funding of the action. The materials imply that class counsel has negotiated its own fees on a contingent basis. However, they do not establish any ability to provide for the substantial other costs of an action such as the one proposed e.g. future expert fees, witness costs, scientific analysis, adverse cost awards, reporters fees, copying costs, other disbursements, etc. The plaintiff has not discharged his clear burden under Hollick to provide evidence demonstrating satisfaction of this criterion for certification. 155. Another fundamental problem is that the interests and tactics of the plaintiff and

his counsel are not consistent with the interests of the proposed class or at least large parts of it. First of all, a large component of the plaintiffs theory is that 80 years of Incos presence has not only caused past injury but will cause substantial future injury. As discussed, there is an inherent conflict between the interests of these two groups of alleged claimants in regard to the timing and pace of a lawsuit. Future sufferers want to delay final resolution; current sufferers want to hasten it. A class action should not be allowed if class members have conflicting interests.104 156. Furthermore, the plaintiff (and his counsel) cannot fairly and adequately represent

the interests of Port Colborne residents who, unlike the plaintiff and his counsel, do not believe that the value of their homes have been reduced to virtually nil. Class counsel has been acting vigorously in accordance with this theory, issuing worrisome press releases, trumpeting risks of cancer and publicly threatening school closures, even though there is no medical evidence of any harm and no accepted toxicological evidence of elevated risk (and, indeed, a substantial body of evidence to the contrary). These activities and this lawsuit, which have been promoted in tandem since March 2001, bring much media and public attention to Port Colborne generally,

104

Western Canadian Shopping Centres, 201 D.L.R. (4th) at 401 [Plaintiffs Authorities, Volume I, Tab 1]

- 77 all of it negative. For someone who thinks his property is worthless anyway, such tactics might seem worthwhile. But for someone who believes there is value in his property worth preserving, the plaintiff and his counsel do not, either in their position or their tactics, fairly and adequately represent [his] interests.105 157. These types of divergent interests cannot be handled through the use of

subclasses. The subclass mechanism is directed to sectors of a class which may have interests independent of, but not in fundamental conflict with, the representative plaintiffs interests and tactics. In any event, the plaintiff has not put forward any additional representatives protective of different interests in Port Colborne willing to represent portions of the class in this proceeding. They cannot be assumed to exist. C. 158. The Class as Defined Bears No Rational Relationship to the Common Issues In Hollick, the Supreme Court recognized that implicit in the identifiable class

requirement is the requirement that there be some rational relationship between the class and the common issues:106 There must be some showing . . . 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. 159. Here there is no rational relationship between the proposed class definition and The geographic component of the class definition the municipal

the common issues.

105

Affidavit of Wilfred Pearson, para. 11; Plaintiffs Record, Vol. I, tab 2, p. 11 Affidavit of Wolfgang Kaufmann, para. 48; Plaintiffs Record, Vol. I, tab 3, pp. 37-38 Cross-Examination of Wolfgang Kaufmann, pp. 9-10

106

Hollick, 205 D.L.R. (4th) at 31 [Plaintiffs Authorities, Volume I, Tab 2]

- 78 boundaries of Port Colborne has nothing to do with the predicted spread and relative concentration of metals in the soil. For example, large portions of the proposed class fall in areas where the MOE has only measured nickel levels below 200 ppm (beneath the MOE Table A generic guideline). By contrast, a much smaller portion of the proposed class falls in areas near where any measurements above 1,000 ppm have been made. The geographic definition of the class is a wholly arbitrary in relation to the common issues. 160. The temporal component of the class definition is likewise arbitrary. It would

appear to encompass anyone who has lived in Port Colborne at any point in time since March 1995 and exclude anyone who has not, regardless of what harm they may have suffered and when they suffered it. So, for example, a long time resident who moved away in 1996 and has asserted injuries dating from 1970 apparently is in the class while a resident who left in 1994 and with claims dating from 1990 is out of the class. 161. Compounding the irrationality of the class definition is that the relevant conduct

of Inco relating to the operation of the plant and its emissions the focus of the common issues that the plaintiff seeks certified dates to 1960 and before. D. 162. The Litigation Plan is Neither Adequate or Workable The plaintiff has prepared a litigation plan in an attempt to satisfy section

5(1)(e)(ii) of the Act, which requires that a workable method of advancing the proceeding as a precondition to certification. The plaintiffs plan is a three-page document, of which about a half page is devoted to individual issues.107 1.
107

The Plan Makes No Attempt to Come to Grips With the Nature of the Individual Issues and What Will Be Required To Litigate Them

Affidavit of Wolfgang Kaufmann, Ex. B; Plaintiffs Record, tab 3B, pp. 54-56

- 79 163. The plaintiffs plan contains no specifics as to how the individual issues in this It makes general reference to aggregate assessment of

case can be manageably litigated.

damages under section 24, even though the section is wholly inapplicable to the type of claims made in light of the undisputed evidence as to the individualized process necessary to resolve each of them. All the plan otherwise suggests are undefined individualized mini-hearings that can be somehow streamlined with individual class members entitled to retain a personal lawyer for that process. 164. This is not a workable plan for manageably carrying out 20,000 individual trials

(each of which containing multiple claims). In fact, it is not a plan at all. It is a statement that we should worry about such details later. In Incos submission, it is unacceptable to certify a class proceeding of the scope and magnitude as the one proposed here where there is not even an attempt to seriously formulate a realistic method for practically litigating the claims to their conclusion. While the Act itself requires a genuinely workable plan, the circumstances,

complexity and consequences of this case demand one, not just in the interests of the defendants, but also in the interests of the court and the class whose resources and rights are at stake. 165. As Justice Winkler has observed:108 Problems that are apparent at the time of certification should be dealt with squarely at that time and not postponed. Further, access to meaningful justice requires a solid, detailed litigation plan. It does no favour for anyone, plaintiff or defendant, to certify an action only to have to decertify it later because it is unworkable.

108

The. Hon. Mr. Justice Warren Winkler, Advocacy in Class Proceedings Litigation, The Journal of the Advocates Society, August 2000 [Incos Authorities, Volume I, Tab 5]

- 80 Accordingly, the litigation is of paramount importance. It should be detailed. It should be contemplative of problems that may arise in prosecuting the lawsuit, and it should contain solutions. 2. 166. The Plaintiffs List of Proposed Common Issues The plaintiffs factum (Schedule C) provides a list of proposed common issues.

Some of the proposed issues are not common at all. For example, with respect to proposed issue A(ii), the undisputed evidence is that the current distribution of metals in the soil is idiosyncratic by property for a variety of scientific, historical and other reasons. Likewise, the question of risk (A(iii)) is not a common one. To suggest that it is misunderstands what policy-oriented risk assessment purports to do and what it does not purport to do. As the plaintiffs own risk assessor has explained, there is no way of generically estimating an individuals risk because there are no data relating to any individuals behaviour, food consumption patterns, etc. throughout his/her life. 167. Nor can legal questions like nuisance and strict liability in a situation of variable As the Court of Appeal observed in Hollick, in such

impacts be considered common.

circumstances liability can only be established by evidence that the particular individual personally suffered sensible discomfort or evidence that emissions from the defendants premises have interfered with the reasonable enjoyment of their properties.109 168. Common questions do exist. However, many of them like what did the facility

emit and when? are far better answered in the CBRA or by the MOE. Moreover, attempting to answer any viable common questions here, or piggybacking the answers obtained in those other fora, will not significantly advance class members claims to their resolution. On the

109

Hollick, 181 D.L.R. (4th) at 436 [Plaintiffs Authorities, Volume I, Tab 6]

- 81 contrary, doing so will unleash an individualized class proceeding that is a monster of complexity.

- 82 PART IV ORDER SOUGHT 169. Inco requests an order dismissing the motion for class certification with costs.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

______________________________________________ Alan J. Lenczner, Q.C.

______________________________________________ Larry P. Lowenstein

______________________________________________ Joseph A. Starkman Of counsel for the Defendant Inco Limited

SCHEDULE A LIST OF AUTHORITIES

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.

Reference Manual on Scientific Evidence 2nd ed., Reference Guide on Toxicology and Reference Guide on Epidemiology (Federal Judicial Center 2000) Southwestern Refining Co. v. Bernal, 22 S.W.3d 425 (Supreme Court of Texas 2000) Taub v. Manufacturers Life Insurance Co. (1998), 40 O.R. (3d) 379 (Gen. Div.) M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163 (S.C.J.) The Honourable Mr. Justice Warren Winkler, Advocacy in Class Proceedings Litigation, The Journal of the Advocates Society, August 2000 Cordova v. Hughes Aircraft Co., Case No. C-284158 (Arizona Superior Court July 10, 1996) RSR Corp. v. Hayes, 673 S.W.2d 928 (Tex. App. 1984) Ford v. Murphy Oil USA, Inc., 703 So.2d 542 (Supreme Court of Louisiana 1997) Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir. 1995) Aprea v. Hazeltine Corp., 669 N.Y.S.2d 61 (N.Y. App. 1998) Franklin v. University of Toronto (2001), 56 O.R. (3d) 698 (S.C.J.) Excerpts from Garth Dee, Workers Compensation in Ontario; Excerpts from Ontarios Workers Compensation Acts Endean v. Canadian Red Cross Society, [1997] 148 D.L.R. (4th) 158 (B.C.S.C.) MacDonald v. Dufferin-Peel Catholic District School Board, [2000] O.J. No. 5014 (S.C.J.) Lindal v. Lindal, [1981] 129 D.L.R. (3d) 263 (S.C.C.) Koukounakis v. Stainrod (1995), 23 O.R. (3d) 299 (C.A.) Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63 (Gen. Div.) Georgine v. Amchem Products, 83 F.3d 610 (3d Cir. 1996)

Cases cited and already referred to in the Plaintiffs Book of Authorities re Certification, Volumes I and II: 19. 20. 21. 22. 23. 24. 25. Hollick v. City of Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) [Plaintiffs Book of Authorities re Certification, Volume I, Tab 2] Hollick v. City of Toronto (1999), 181 D.L.R. (4th) 426 (Ont. C.A.) [Plaintiffs Book of Authorities re Certification, Volume I, Tab 6] Anderson v. Wilson (1999), 15 D.L.R. (4th) 409 (Ont. C.A.) [Plaintiffs Book of Authorities re Certification, Volume I, Tab 12] Campbell v. Flexwatt (1998), 15 C.P.C. (4th) 1 (B.C.C.A.)) [Plaintiffs Book of Authorities re Certification, Volume I, Tab 8] Anderson v. Wilson (1999), 175 D.L.R. (4th) 409 (Ont. C.A.) [Plaintiffs Book of Authorities re Certification, Volume I, Tab 4] Chadha v. Bayer Inc. (2001), 54 O.R. (3d) 520 (Div. Ct.) [Plaintiffs Book of Authorities re Certification, Volume II, Tab 13] Western Canadian Shopping Centres Inc. v. Bennett Jones Verchere, [2001] 201 D.L.R. (4th) 385 (S.C.C.) [Plaintiffs Book of Authorities re Certification, Volume I, Tab 1]