20020606

Court File No.
: 12023/01
ONTARIO JUSTICE BETWEEN:
SUPERIOR COURT OF
WILFRED ROBERT PEARSON Plaintiff -andINCO LIMITED, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CORPORATION OF THE CITY OF PORT COLBORNE, THE REGIONAL MUNICIPALITY OF NIAGARA, THE DISTRICT SCHOOL BOARD OF NIAGARA, and THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD Defendants Proceeding under the Class Proceedings Act, 1992
FACTUM OF THE RESPONDING PARTY, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
(Certification Motion)
TABLE OF CONTENTS PART I - OVERVIEW ....................................................................................................................4 PART II - THE FACTS ...................................................................................................................7 A. THIS PROCEEDING....................................................................................................7 The Plaintiff .............................................................................................................7 The Plaintiff=s Claims.............................................................................................9 The Proposed Class................................................................................................11 Alleged Damages ...................................................................................................12 B. OVERVIEW OF HISTORIC INVOLVEMENT OF THE MOE IN PORT COLBORNE ..........................................................................................................13
B-1 HISTORIC INVOLVEMENT OF MOEIN RELATION TO ALLEGATIONS OF NEGLIGENCE ......................................................................................................15 Studies of refinery impacts - 45(g).........................................................................15 Warnings - 45(c)(d)................................................................................................18 Inspections and abatement at the Refinery - 45(a) & (e) .......................................20 Issuance of Approvals - 45(b) ................................................................................24 Complaints - 45(f)..................................................................................................28 Enforcement of the EPA - 45(h) ............................................................................29 Conclusion on negligence ......................................................................................32 B-2 HISTORIC INVOLVEMENT OF MOEIN RELATION TO ALLEGATIONS OF NEGLIGENT MISSTATEMENT .........................................................................32 The reports in question...........................................................................................32 The alleged distribution .........................................................................................32 The actual distribution ...........................................................................................33 The alleged misrepresentations..............................................................................36 The actual representations......................................................................................37 C. CURRENT ACTIVITIES OF THE REGULATORS AND INCO...........................39 (1) The Community Based Risk Assessment.....................................................40 (2) Additional Studies Being Conducted by Inco ................................................44 (3) Public Liaison Committee..............................................................................45 (4) Studies Undertaken by Public Regulators ......................................................49 1997 Human Health Risk Assessment.......................................................49 2000 Human Health Risk Assessment.......................................................51 March 2001 Human Health Risk Assessment ...........................................51 In-Depth Soil Investigation of Rodney Street Community........................52 March 2001 Human Health Risk Assessment ...........................................53 October 2001 Human Health Risk Assessment ........................................56 March 2002 Human Health Risk Assessment ...........................................57 Other Studies by Public Regulators ...........................................................58 (5) The Director=s Orders....................................................................................58 Regulatory Context for a Director=s Order ...............................................58 March 2001 Draft Order ............................................................................59 October 2001 Draft Order ..........................................................................61 March 2002 Final Order.............................................................................61 Effect of the March 2002 Final Order........................................................61 (6) Statutory Appeals from a Director=s Order ...................................................64 D. CONCLUSIONS.........................................................................................................65 (1) Individual issues vastly outweigh common issues. ........................................65 (2) Class Action is Not the Preferred Alternative To Current Activitiesof the Regulators and Inco, Combined withIndividual Lawsuits if Necessary ....66 E. RESPONSE TO PLAINTIFF=S FACTS ....................................................................69 PART III - THE LAW AND ARGUMENT ..................................................................................73 Requirements for Certification ..........................................................................................73 S.5(A) REASONABLE CAUSE OF ACTION .............................................................74
S.5(B)
IDENTIFIABLE CLASS....................................................................................76 (1) No Rational Relationship ...............................................................................77 (2) Class is Overly Broad.....................................................................................78 S.5(C) COMMON ISSUES ...........................................................................................79 (1) Conflict Among Class Members ....................................................................80 (2) Alleged Common Issues Are Overbroad (Are In Fact Individual Issues)and Are Not a Substantial Ingredient of Each Class Members Claim..............83 (i) Alleged Common Issues As Against the Crown............................84 (ii) Inspections .....................................................................................85 (iii) Certificates of Approval.................................................................88 (iv) Duty of Care with respect to Negligence .......................................89 (v) Introduction to Negligent Misrepresentation .................................95 (vi) Duty of Care for Negligent Misrepresention..................................97 (vii) Conclusion on Duty of Care...........................................................99 (viii) Standard of Care and Breach of Duty ............................................99 (ix) Was the Representation Untrue, Inaccurate or Misleading..........101 (x) Reasonable Reliance ....................................................................102 (xi) Detrimental Reliance ...................................................................104 (xii) Causation......................................................................................107 (xiii) Damages.......................................................................................108 (xiv) Punitive Damages ........................................................................108 (xiv) General Common Issues ..............................................................110 (xv) Common Issues for Inco ..............................................................111 (xvi) Conclusion on Common Issues....................................................111 S.5(D) PREFERABLE PROCEDURE ........................................................................111 S.5(E) CLASS REPRESENTATIVE ..........................................................................116 (1) Adequately Representation...........................................................................116 (2) Litigation Plan ..............................................................................................118 (3) Conflict of Interest........................................................................................119 PART IV - ORDER REQUESTED .............................................................................................119
-4-
-5PART I - OVERVIEW 1. In this motion, the plaintiff is seeking to have this action certified as a class proceeding
against the defendants, Inco Ltd., Her Majesty the Queen in Right of Ontario (AHMQ@), 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.
2.
The claims against the defendants relate to the alleged contamination of the Port
Colborne community through the operation of a refinery by Inco Ltd. (the ARefinery@). It has been specifically alleged against HMQ that the Ministry of the Environment (AMOE@) was negligent in failing to properly regulate the operation of the Refinery over the last several decades. It is further alleged that, in various reports, the MOE misrepresented the extent of the contamination and the potential threat to the health of the residents of Port Colborne. The Statement of Claim asserts that the members of the proposed class, which consists of approximately 20,000 residents and former residents of Port Colborne, have suffered a number of injuries as a result of this negligence ranging from itchy skin to an increased risk of cancer.
3.
It is the fundamental position of the Crown on this motion that in light of the vast number
of individual issues in this action as compared to the few common issues, the existence of a community-wide remediation program initiated by Inco and regulated by government which will fully remediate Port Colborne soils to scientifically approved standards, and the exemplary behaviour of the defendants in attempting to address the concerns of citizens of Port Colborne, a class proceeding is not the preferable alternative.
-6-
4.
As noted by Inco in its factum, the enormous number of individual inquiries which would
be required simply to assess individual risk, causation and damages with respect to each class member would be of such substantial significance to proof of the claim of each class member, as compared to the few and relatively trivial common issues, that certification of this action would create an unmanageable and unworkable process, leaving thousands of claimants to their own devices and resources to prosecute individual claims. Added to this, the Crown=s evidence is that even the assessment of liability in the case of the public regulators such as the MOE (determination of duty of care to any given class member, standard of care, breach and detrimental reliance) will of necessity be so highly individualized, as to significantly increase the scope and complexity of the individual hearings required, rendering the Aclass proceeding@ of little or no value. Far from serving judicial economy, a class proceeding would create a nightmare of judicial diseconomy.
5.
Further, the fact that there is: 1. 2. 3. no evidence of any health impacts in Port Colborne due to the Refinery; no credible evidence of any property value impacts; an ongoing Amade in Port Colborne@ community-wide, scientifically consensual, government supervised remediation program - the Community Based Risk Assessment - funded voluntarily by Inco and conducted pursuant to MOE guidelines and legislation which, together with MOE administrative orders and expert input from the other parties, promises to eliminate any residual risk of such
-7health or property value impacts; 4. a serious risk that certification could undermine that remediation program,
underscores that a class action is not required for access to justice or for behaviour modification.
6.
It is further the position of the Crown that this action should not be certified as a class
proceeding because: 1. The statement of claim does not disclose a reasonable cause of action against the Crown for Afailure to enforce@; There is no identifiable class because: (1) (2) 3. the class definition criteria bear no rational relationship to the common issues; and, the class is overly broad;
2.
There are no common issues sufficient to warrant certification because: (1) (2) of conflicting interests among class members; alleged common issues are overbroad (and in fact devolve into individual issues); alleged common issues are not a substantial ingredient of each class member=s claim; specifically with regard to allegations of Crown negligence, each of the proposed common issues (inspections, approvals, duty of care, standard of care, breach) will require substantial individualized inquiries for proof at trial; specifically with regard to allegations of Crown negligent misrepresentation, the proposed common issue (negligent misrepresentation) devolves into each of the elements of this tort. In turn, each element, except standard of care, will required substantial individualized inquiries for proof at trial;
(3)
(4)
(5)
-8(6) (7) (8) (9) causation is an individual issue; damages is an individual issue; the proposed common issue of punitive damages is an individual issue; the proposed general common issues applicable to all defendants are either going to be addressed or have already been addressed in the CBRA process and Director=s Order.
4.
A class proceeding is not the preferable procedure for the resolution of the common issues (for reasons outlined above); and The class representative test is not met because: (1) the representative plaintiff cannot be expected to fairly and adequately represent the interest of the class; the litigation plan is inadequate; the representative plaintiff has a conflict with other class members.
5.
(2) (3)
PART II - THE FACTS 7. The Crown repeats and adopts the facts as set out in Inco=s factum.1 In addition, the
The adoption of Inco=s facts is based on all the sworn evidence currently available before the court on this certification motion and is without prejudice to the Crown subsequently taking, in this or other proceedings, a different position on matters of fact or scientific opinion as more evidence and further and better scientific opinion becomes available. As well, the Crown does not accept as uncontroverted, any allegation of fact or scientific opinion by Inco which challenges the findings of an MOE report.
-9Crown submits as follows. A. THIS PROCEEDING The Plaintiff 8. The plaintiff, Wilfred Robert Pearson, is 70 years old and he lives at 97 Rodney Street in
Port Colborne with his wife Catherine. His home is approximately one block from the Refinery. Catherine is currently on long-term disability, but the cause of her disability is unknown. Mr. and Mrs. Pearson raised four sons, all of whom reside in Port Colborne, and they have 12 grandchildren.
Cross-Examination of Wilfred Robert Person, January 17, 2002 (APearson CrossExamination@), pages 12, 13, 42 and 47 Affidavit of Wilfred Robert Pearson sworn January 17, 2002 (APearson Affidavit@), pages 2 and 5
9.
The plaintiff and his wife purchased their home in 1980 after the house was repossessed
from the previous owners by the bank. The Pearsons paid $17,000 for the house.
Pearson Cross -Examination, pages 12 and 13 Pearson Affidavit
10.
The plaintiff served with the Canadian Armed Forces until 1973 when he returned to
civilian life as a truck driver. As a truck driver, he did long-haul trucking and carried loads of gyprock and wafer board. He also worked at Gore Metals. This work required the plaintiff to enter the Inco plant in order to transport lugger boxes from the plant to the premises of Gore Metal. The plaintiff does not know what was in these lugger boxes.
Pearson Cross-Examination, pages 40 and 41; Pearson Affidavit, page 2
11.
Since moving to Port Colborne, the plaintiff claims that he has suffered from the
-10following: -dry itchy patches of skin on his arms, legs and head; -fits of coughing; -itchy eyes and a sore throat; -insomnia which has been treated with medication; -loss of sexual function; -two major heart attacks with the result that a triple bypass was performed and the plaintiff has been on daily heart medications; -high blood pressure which has been treated with medication; -depression; -severe headaches; and -growths on his prostate gland.
Pearson Affidavit, pages 6 and 7
12.
There is no evidence that any of the plaintiff=s medical problems have been caused by
pollution from the Refinery.
13.
In fact, the only published health studies which have ever been conducted of the Port
Colborne area to date, the ones done by the federal government in 1981 and by the Ministry and Region of Niagara Public Health Department in 1997 and 2000 (which included reviews of community epidemiological data) concluded that no health effects had occurred or were predicted. AIn conclusion, based on a multi-media assessment of potential risks, no adverse health effects are anticipated to result from exposure to nickel, copper or cobalt, in soils in the Port Colborne area. Furthermore, the review of population health data did not indicate any adverse health effects which may have resulted from environmental exposures.@
1997 Assesssment of Potential Health Risk, Crown=s Record, Volume II, Tab 2B, p.ii
14.
Moreover, the only toxicological risk assessments which have ever been conducted of the
Port Colborne area to date, the ones done by the Ministry in 2001 and 2002 (detailed below), have specifically excluded Mr. Pearson=s property as one of the properties requiring clean up by Inco for health purposes. According to these internationally peer reviewed, state of the art, risk assessments, the levels of nickel contamination on the plaintiff=s property are far too low to have
-11any toxicological impact, even from long-term exposure.
The Plaintiff=s Claims
15.
In this action, the plaintiff is alleging that the MOE has been negligent in various ways. In
particular, the plaintiff alleges that:
Since beginning its operational activities at the Refinery, the MOE has: (a) (b) failed to properly inspect, monitor and investigate the Refinery; failed to properly issue or ensure compliance with Certificates of Approval issued in relation to the Refinery; failed to warn Class Members of known hazardous emissions, defects and other failures at the Refinery; specifically failed to warn Class Members that they were, and still are being exposed to high doses of the known carcinogen nickel oxide; failed to obtain, in a timely fashion or at all, adequate information or advice in order to rectify known defects and failures at the Refinery; failed to respond to complaints made by Class Members about the Refinery, its emission of contaminants and other activities; failed to conduct or to cause to be conducted, accurate and complete studies of the impacts of the Refinery, in a timely fashion or at all; and failed to apply or enforce the Environmental Protection Act, R.S.O. 1990, c. E.19.
Fresh as Amended Statement of Claim (AStatement of Claim@), Plaintiff=s Record, Vol. II, Tab 1A, paragraph 45
(c)
(d)
(e)
(f)
(g)
(h)
16.
Each of these allegations of negligence will be examined in greater detail below, with a
view to determining what will be required, as a matter of process, for the plaintiff to prove each. 17.
In addition to these claims in negligence, the plaintiff has alleged that the MOE has
-12misrepresented to the members of the proposed class through numerous scientific publications that emissions from the refinery have never posed any risk to human health and that class members were being exposed to nickel or other non-carcinogenic substances and not the carcinogen nickel oxide.
Statement of Claim, paras. 46, 47 and 48.
18.
The plaintiff alleges that these reports and letters were distributed by the MOE to
proposed class members. Alternatively, it is pleaded that the alleged misrepresentations in them were disseminated to proposed class members by the media and through public meetings. As a result, it is alleged that AGiven the extremely widespread distribution of these misrepresentations, it is clear that they were heard or read at some point by all Class Members including Pearson@.
19.
These allegations of negligent misrepresentation will also be examined in greater detail
below, with a view to determining what will be required, as a matter of process, for the plaintiff to prove them.
The Proposed Class 20. The definition of the proposed class is correctly set out in paragraph 9 of the Plaintiff=s
factum. The plaintiff estimates that there are 20,000 or more members of the proposed class, a figure which the Crown accepts.
Affidavit of Dave McLaughlin sworn March 28, 2002 (AMcLaughlin Affidavit@), Crown=s Record, Tab , para. 80(a)
-1321. The plaintiff=s affiant Wolfgang Kaufmann suggests that the class may be further divided
into sub-classes, based upon levels of contamination, namely: the Eastside Community Area (also known as the Rodney Street community), the Table A Area, the Table F Area and Farm Claimants.
Affidavit of Wolfgang Kaufmann sworn January 16, 2002 (AKaufmann Affidavit@), Plaintiff=s Record, Tab , paras. 45-6
22.
However, the Table A and Table F classifications, which refer to tables in the MOE=s
Guidelines for Use at Contaminated Sites, have been misapplied by Kaufmann to suggest there has been varying levels of damage to different areas of Port Colborne depending upon whether they exceed the values in either table, despite express MOE advice to the contrary. The generic values in Tables A and F of the Guidelines point to a need for further site-specific investigation. One cannot assume that their exceedence denotes an adverse effect.
Affidavit of Dave McLaughlin, sworn March 28, 2002, para.80(k)
Alleged Damages 23. The plaintiff is claiming damages for loss of use and enjoyment of property and loss of value
of property. The plaintiff is also claiming damages for, inter alia, irritation and inflamation of the skin, eyes, nasal passages and lungs, coughing, choking, inability to breathe, burning sensations, nausea, vomiting, headaches, dizziness, loss of consciousness, loss of appetite, pain, suffering, and increased risk of cancer and lung disease. Finally, the plaintiff is also seeking damages for loss of income, impairment of earning ability, future care costs, medical costs, loss of amenities and enjoyment of life, anxiety, nervous shock, mental distress, emotional upset and out of pocket expenses.
-14Statement of Claim, paras. 24 and 25.
24.
If the latest, internationally peer reviewed, toxicological risk assessment done by the MOE
for the Rodney Street community is correct, only twenty-five (25) of properties in that community will require any clean up whatsoever from a health perspective. Given the Rodney Street community is thought to have the most heavily contaminated properties in all Port Colborne based on current contour mapping (a fact which can only be confirmed by individual, property-by-property, sampling), it appears unlikely there will be any others. Nevertheless, the Director of the MOE has already ordered Inco to confirm whether any other properties outside of the Rodney Street community require cleanup.
Affidavit of James Johannes (Jim) Smith, sworn March 28, 2002 (AJames Smith Affidavit@), Crown=s Record, Tab , paras. 47, 48, and 49
25.
Of the twenty-five properties, five have already been remediated by Inco. The only thing
which currently stands in the way of the remediation of the remaining twenty properties has been the campaign of opposition mounted by plaintiff=s counsel.
Affidavit of Kal Haniff sworn March 28, 2002 (AHaniff Affidavit@), Crown=s Record, Tab , para. 33
B.
OVERVIEW OF HISTORIC INVOLVEMENT OF THE MOE IN PORT COLBORNE
26.
It is submitted that, in considering whether the allegations made by the plaintiff in his
Statement of Claim in connection with the MOE are suitable for adjudication in the process of a class action, the Court will need to consider the factual background to those issues and
-15allegations. Only in this way will the Court be able to determine the nature of the factual and legal issues facing any trial court which is charged with adjudicating this action as a class proceeding.
27.
Immediately below, in section B-1, is a review of the facts relating to the historic
involvement of the MOE in Port Colborne in relation to each allegation of negligence. These facts are taken from the uncontradicted evidence of Dave McLaughlin, a phytotoxicology scientist with the Phytotoxicology Section of the MOE. McLaughlin testified that he participated in the majority of the MOE=s investigations of farm and residential properties in Port Colborne from the mid-1970's onwards. Another important source of the evidence is the cross-examination of the plaintiff=s witness, Allen Baldwin, a former MOE employee who began his career with the MOE as an abatement officer in the District Office of the MOE reponsible for inspecting the Refinery.
28.
The gravamen of the evidence of both witnesses was that all MOE activities as alleged in
the Statement of Claim - studies of Refinery impacts, warnings, inspections and abatement at the Refinery, issuance of approvals, response to complaints, and enforcement of the EPA - were of necessity highly individualized activities. Although there can be no doubt general standards for abatement existed, the application of those standards involved an assessment of what was required to eliminate actual adverse effects or the risk of adverse effects to given individuals - the people who actually complained about being impacted.
-1629. Following section B-1 is a further section, B-2, which reviews some of the key evidence
in connection with the allegations of Crown negligent misrepresentation. The evidence establishes that there was no blanket distribution of MOE reports, different reports were distributed in different way, and there exists no credible evidence that any class members read them or how many heard about them, let alone relied on them. As a result, many issues relevant to the tort (especially revolving around reliance) will necessitate a highly individualized inquiry with respect to each class member. B-1 HISTORIC INVOLVEMENT OF MOE
IN RELATION TO ALLEGATIONS OF NEGLIGENCE
30.
The allegations of negligence against the Crown cover a lengthy period of time - from
1959 to present - or Asince beginning its [the Crown=s] operational activities at the Refinery@, to use the words of the Statement of Claim. Those allegations of negligence fall into the following categories: 1. Failure to study Refinery impacts accurately, completely or fast enough - para. 45(g); 2. Failure to warn Class members about hazardous emissions from the Refinery para. 45(c), (d); 3. 4. 5. 6. Failure to properly inspect or abate problems with the Refinery - para. 45 (a), (e); Failure to properly issue approvals for the Refinery - para. 45(b); Failure to respond to complaints of Class members - para. 45(f); Failure to enforce the EPA - para. 45(h).
-17Statement of Claim, para. 45
Studies of refinery impacts - 45(g) 31. Although the MOE did many studies over the years, until 1997, when the first MOE
Human Heath Risk Assessment (AHHRA@) was conducted, these studies were all directed to observable ecological impacts (i.e., to plants, soil, surface water, ground water).
McLaughlin Affidavit, para. 9
32.
The MOE either responded to individual complaints made by particular Class members,
or it conducted annual surveys or special investigations.

McLaughlin Affidavit, para. 9 Cross-examination of Dave McLaughlin, April 18, 2002 (AMcLaughlin Cross-Examination@) Q. 22-25, 35-45
33.
In terms of general surveys, the Phytotoxicology Section sampled at the same general
sites from year to year to track changes in environmental conditions over time. Vegetation surveys documented plant injury and determined changes in air pollution levels from year to year, and soil investigations determined whether soil contaminant levels were increasing or decreasing over time.
34.
These surveys found different levels of contamination at different properties. Studies
conducted by the Phytotoxicology Section found plant impacts at some properties but not others. The observed plant injury was very site specific and depended on the species of vegetation, the degree of soil contamination, and the physical and chemical characteristics of the soil.
McLaughlin Affidavit, para. 11.
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35.
Where plant impacts (i.e. adverse effects) were found, the owner of the particular
property was advised of this fact and was provided with a copy of the Phytotoxicology Section report.
36.
Whether any given study was inaccurate or incomplete, as alleged in paragraph 45(g) the
Statement of Claim, is a question which is specific to individual properties.

37.
The MOE also did surveys and special investigations. The surveys were similarly
restricted to areas that the MOE believed were impacted (based on the presence of vegetation injury and the known northeasterly pattern of the Inco plume). The special investigations were conducted when some sort of environmental contamination was discovered which required more thorough inquiry and testing.
McLaughlin Cross-Examination, Q. 38.
38.
In McLaughlin=s view, should the plaintiff takes the position that the MOE=s studies
were not broad enough geographically and that the MOE should have inspected other properties for which no complaint had been registered, the plaintiff will have to prove that the owners of those other properties had, in fact, experienced unreported plant or health impacts or that they had levels of contamination sufficient to cause actual plant or health impacts. The plaintiff will also have to show that these properties were so situated geographically, having regard to historic activities of Inco, wind directions and their usage by the property owners, that it would have been
-19reasonable for the MOE to conclude that these properties might have levels of contamination sufficient to cause plant or health impacts such as would warrant further or expanded study.
McLaughlin Affidavit, paras. 15 and 16
39.
In McLaughlin=s opinion, which is uncontradicted on the evidence, only after an
individualized examination of the property, the types and use of both the property and its vegetation, and the actual levels of contamination on each property would the plaintiff be able to argue that the MOE=s failure to conduct broader studies resulted in incomplete studies.
Warnings - 45(c)(d) 40. Whether the MOE should have warned any given member of the Class about
contamination would also depend upon an individual examination of: (1) (2) (3) whether the MOE inspected their property; whether the MOE found an adverse effect; whether the MOE failed to warn the Class member about the adverse effect.
41.
It cannot be said that the MOE owed a duty to warn all Class members about the
existence of pollution in the soil or air, regardless of any individualized assessment of contamination levels on each property or the likelihood of the pollution causing an adverse effect. That is because the Environmental Protection Act only permits the MOE to act to prevent or alleviate Aadverse effects@. Emissions themselves do not constitute an Aadverse effect@
-20under the EPA. It is only an Aadverse effect@ when sufficient nickel has accumulated in the soil to result in the potential to injure the natural environment or human health. An Aadverse effect@ requires a finding by the MOE that the use of property has been impacted or that there is the potential for injury to the natural environment or human health.
McLaughlin Affidavit, paras. 19, 20 and 21
42.
In McLaughlin=s opinion, it cannot be the case that the MOE is under a duty to warn
citizens of any level of pollution, whether or not it is causing an Aadverse effect@. Otherwise, the MOE would have to warn virtually every Ontarian of the many potential contaminants being inhaled and ingested daily, since virtually everyone in Ontario is subjected to pollution levels of some kind or another. This is particularly true for those living in urban areas or in communities with past or present industrial activities.
43.
The fact of the matter is that years of MOE study have shown that soil nickel levels in
Port Colborne are only capable of having an impact upon sensitive crops and trees when they reach a particular level. Government studies of ecological impacts in Port Colborne as early as 1960, and MOE studies in Port Colborne through the 1970s and 1980s all support a Ano observable effect level@, or NOEL, of about 2000 ppm nickel in soil and a Alowest observable effect level@, or LOEL, of about 3000 ppm. Even if these soil nickel levels were present, an adverse effect on vegetation would only occur if the sensitive plant species were being grown on the property.
-2144. On the human health side, there has been no confirmation of health impacts from soil
nickel exposure.
45.
Therefore, to determine whether the MOE ought to have warned any Class member about
potential plant or health impacts, one must necessarily determine (among a host of other individual issues) whether the soil contamination level on the property of the Class member exceeded the relevant thresholds from year to year for the entire time the Class member resided on the property.
46.
Whether in fact the MOE warned each Class member who needed to be warned of
potential plant impacts is, therefore, an individual issue which will require examining the actual level of contamination and the possibility of plant impacts on each property.
47.
Whether in fact the MOE ought to have warned each Class member who needed to be
warned of potential health impacts is also an individual issue for the same reason - at a minimum, it will require an examination of the actual level of contamination and possibility of health impacts on each property.
Inspections and abatement at the Refinery - 45(a) & (e) 48. Starting in or about 1970, the District Officer of the MOE told Allen Baldwin, an
-22abatement officer in the MOE District Office, to conduct inspections of the Refinery on a regular basis. According to Baldwin, those inspections occurred at times once per week or even more frequently when detailed investigations were taking place. As a result, since 1970, hundreds of inspections of the Refinery have been performed by the MOE. Although Baldwin=s affidavit stated the he was directly responsible Afor overseeing the operation of the Inco Refinery@, an allegation which has been repeated in the plaintiff=s factum, on cross-examination he admitted he only meant he had done inspections of the Refinery.
Affidavit of Allen Baldwin, sworn January 14, 2002 (ABaldwin Affidavit@), Plaintiff=s Record, Tab , para. 6 Cross-examination of Allen Baldwin, April 24, 2002 (ABaldwin Cross-Examination@), Q. 125-129
49.
In connection with those inspections, the District Office of the MOE encouraged Inco to
abate both its air emissions and water emissions, either by voluntary or regulatory means such as control orders.
Baldwin Cross-Examination, Q. 11 and 16
50.
Although historic surface water emissions do not appear to form the basis for any claim in
this action, it is clear that in about 1975, after some discussion between the MOE and Inco, Inco made application to the MOE to install a water treatment facility, and the MOE approved the facility. The facility proved very effective.
Baldwin Cross-Examination, Q. 15-18
51.
On the air side, abatement involved consideration of what was coming out of Inco=s
stacks, and also fugitive emissions (accidental dust or gaseous emissions not controlled through any stack). The MOE did inspections. Both Inco and the MOE monitored the emissions. There
-23was stack testing. There was also high volume monitoring of ambient air emissions off-site of the Refinery. The MOE had one high volume sampler near the plant and Inco had one or two. In addition, the Phytotoxicology Section of the MOE did sphagnum moss testing in just some selected areas of Port Colborne, to the east and north-east of the Refinery. It also had some vegetation test plots upwind and downwind of the Refinery.
Baldwin Cross-Examination, Q. 19-28 and Q. 29-33
52.
By 1980, when Baldwin wrote his abatement report which appears as Exhibit AD@ to his
affidavit, due to abatement steps undertaken by Inco, air particulate levels from the Refinery were abated to acceptable levels. Also, nickel content of the ambient air had been reduced to below the MOE=s established objective of 2.0 micrograms per cubic metre.
Baldwin Cross-Examination, Q. 37-45 Baldwin Affidavit, Exhibit AD@, Plaintiff=s Record, p. 265
53.
This success in reducing the particulate and nickel levels in Inco=s air emissions to
acceptable levels was due in part to the Ministry=s abatement activities. For example, in 1979 Inco proposed a Aprogram approval@ and the MOE proposed a draft control order concerning Inco=s air emissions. Inco implemented the requirements of the draft control order voluntarily, so there was no need to issue the order. Although Inco did the work voluntarily, the MOE was there and Apu-shing@ Inco to do it.
54.
As well, beginning in the early 1970s the MOE had an air regulation which established
maximum concentrations for contaminants at a Apoint of impingement@ away from the stack of
-24any facility. This was the primary regulation governing air pollution in Ontario. In the view of the plaintiff=s own witness, Allen Baldwin, an MOE abatement officer who was directly familiar with the Refinery=s operations for a period of more than 25 years, Inco met the requirements of the regulation.
Baldwin Cross-Examination, Q. 64-77, 94
55.
Baldwin admitted on cross-examination that the aforenoted Refinery inspections and
abatement were not being done Ato protect the property and health of members of the proposed class@, as alleged in his affidavit, and as incorrectly repeated at paragraph 88 of the plaintiff=s factum. That is true because the proposed class did not exist at the time. Rather, they were done with the public in mind. In particular, his concern as an MOE abatement officer would be members of the public who had expressed concern or complaint about being affected by Inco.
56.
Thus, Baldwin=s evidence on cross-examination supports McLaughlin=s evidence to
the effect that, from a process perspective, for the court to determine whether the MOE=s inspections and abatement activities in relation to the Refinery were adequate, will require a property-by-property and person-by-person determination of which, if any, class members were inadequately protected and in fact impacted by those inspection and abatement activities.
57.
Moreover, as a study done by Inco=s consultant Jacques Whitford Environmental Ltd.
(AJWEL@) indicates, 97% of all the nickel emitted by Inco over the operating lifetime of the
-25refinery was emitted prior to 1960. In other words, virtually all of the nickel currently in the soil in Port Colborne had been deposited by 1960. This fact was known to the MOE since the early 1980's, according to the 1980 report prepared by Allen Baldwin. Therefore, MOE inspections and abatement of the Refinery operations were concerned with the remaining 3% of total nickel being emitted to the air.
McLaughlin Affidavit, paras. 29 and 30 Baldwin Affidavit, Exhibit D, Plaintiff=s Record, p. 261
58.
This means that had the MOE completely abated Inco=s emissions (i.e., shut down Inco)
in 1970, when the MOE was first created as a ministry, it would have made no measurable difference in the soil nickel levels currently known to exist in Port Colborne.
59.
Thus, from a process perspective, for the plaintiff to establish at trial that the ongoing
nickel emissions from Inco from 1960 onward (the remaining 3%) were so severe in their impact as to warrant more stringent inspection and abatement actions by MOE during the 1970's-90's than actually were conducted, the plaintiff will have to show that those 3% air emissions were causing not just occasional vegetation impacts to a few specific properties (which on the evidence were in fact being investigated by the MOE and compensated by Inco), but were also causing unreported and unobserved plant and/or health impacts at each property within the proposed Class or upon each proposed Class member from year to year during this lengthy time period.
-26Issuance of Approvals - 45(b) 60. The plaintiff=s contention with respect to this issue appears to be that the air approvals
issued by the MOE to Inco from the 1970s onward either should not have been granted, or did not contain sufficiently stringent conditions to prevent the impacts to plants and health which occurred as a result of air emissions.
Statement of Claim, para. 45 (b)
61.
This raises precisely the same questions as the preceding heading dealing with
AInspections and abatement at the Refinery@. At the end of the day, from a process perspective, for the plaintiff to prove his contention that the air approvals should not have been issued (i.e., Inco should have been closed down completely) or should only have been issued with more stringent conditions sufficient to prevent Aadverse effects@, it will be necessary for the court to examine the actual level of air pollution and possibility of plant and health impacts at each property and upon each Class member from year to year during this lengthy time period.
62.
McLaughlin=s evidence on this point is again confirmed by the evidence provided by
Allen Baldwin on his cross-examination. According to Baldwin, the MOE did issue air approvals to Inco under what is now section 9 of the Environmental Protection Act. The MOE=s practice was to issue one approval for each stack or for each piece of abatement technology that was put in to abate pollution from a source of emission. This included approvals for stacks, scrubbers, baghouses, cyclones and other abatement equipment, as well as approvals for modifications to those systems.
-27Baldwin Cross-Examination, Q. 99-103
63.
According to Baldwin, Inco: 1. 2. 3. 4. Obtained any approvals it required; Did not install anything without an approval which was required; Did not fail to install anything which had been approved; and, Did not violate any conditions of approval that had been issued, of which he was aware.
64.
Although, in part, the above goes to the merits of the plaintiff=s claim concerning MOE
negligence in the issuing and enforcing of approvals (and indeed appears to refute any suggestion of negligence completely), the true importance of this evidence to the certification motion is that it underscores that the above Acommon issues@ are likely to be non-issues or trivial at best. It further underscores that the only way the plaintiff will be able to prove negligence in connection with the MOE=s issuance of approvals is through an individualized inquiry into whether Inco=s approved discharges were in fact having a person-by-person and property-by-property adverse effect on class members despite meeting all approval requirements.
65.
In terms of current approvals, the uncontradicted evidence of Paul Nieweglowski, the
current District Manager responsible for remediation efforts in Port Colborne, is that Inco currently holds the following approvals under MOE legislation: 1. A certificate of approval for a non-hazardous industrial waste site on its property;
-282. 3. A certificate of approval for surface water discharges; Permits to take water for a purge well system to contain groundwater contamination to the site; and, 4. Numerous certificates of approval for air emissions.
As well, Inco has filed a comprehensive AClosure Plan@ with the Ministry of Northern Development and Mines, in apparent compliance with the Mining Act and regulations thereunder. Per Nieweglowski, based on the MOE=s information to date, Inco=s facility is being operated in accordance with the certificates of approval. Also, containment of the off-site groundwater contamination is occurring through the purge well system.
Cross-Examination of Paul Nieweglowski, May 3, 2002 (ANieweglowski Cross-Examination@) Q. 81, 89, 137-138, 139 (Answers to Undertakings) Closure Plan, Plaintiff=s Record, Volume III, TabT, especially at p.182-3
66.
Thus, the same point made about historic allegations in relation to approvals, applies to
the current situation with Inco=s approvals. Although Nieweglowski=s evidence of Inco=s compliance goes, in part, to the merits, it relevance at this time is that it underscores the likelihood that any Acommon issues@ concerning Inco=s current approvals are likely to be nonexistent or trivial, and any real question of current off-site impacts, eg. causing subsidence to homes, will have to be proven by an individualized examination of each class members property and property history, as more fully noted by Inco in its factum.
67.
Finally, and perhaps most important, Baldwin confirmed that, as with inspections and
abatement generally, the certificates of approval issued by the MOE were not issued Ato protect the property and health of class members@, as his affidavit alleges, and the plaintiff wrongly repeats
-29at paragraph 90 of his factum, but rather to meet the requirements of the Act, the regulation, and the concerns about adverse effects on specific property owners.
Baldwin Cross-Examination, Q. 156
68.
This confirms, that as a matter of process, if the plaintiff=s own witness is correct as to
why approvals were issued, the only way to test whether the approvals were efficacious (as Baldwin believes they were) will be to examine each approval to determine whether, on a property-by-property and person-by-person basis, it ultimately succeeded in meeting the requirement of the Act and regulations and the objective of MOE abatement personnel of avoiding adverse effects on specific property owners.
Complaints - 45(f) 69. According to Baldwin=s affidavit, in 1972 it became HMQ=s operational practice to
investigate complaints about the Refinery made by residents of Port Colborne. On crossexamination, he clarified that these complaints came from specific homes or select homes from within the plume area downwind of Inco - to the east of the plant. The MOE did not receive complaints from every resident in Port Colborne.
70.
When the MOE received a complaint, it was investigated. So, when the MOE was
investigating those complaints, or when it was doing inspections of the Refinery with a view to achieving some kind of abatement, those investigations and those inspections were directed at helping the specific people who were being affected by Inco.
-30Baldwin Cross-Examination, Q. 147, 139
71.
Baldwin=s evidence on this point is again consistent with the evidence of McLaughlin.
According to McLaughlin, whenever any member of the public complained about an actual impact to vegetation on their property, the MOE investigated and determined whether an impact had occurred and whether Inco was the cause. As a result, all actual impacts significant enough to warrant a public complaint were investigated.
72.
McLaughlin participated in the majority of complaints investigations conducted by the
MOE from the mid-1970's onward. Significantly, these complaints numbered only in the dozens, not the hundreds.
McLaughlin Cross-Examination, Q. 22-25
73.
As a result, as a matter of process, the adjudication of whether the MOE failed to respond
to complaints of class members, as alleged in the Statement of Claim, is an individual issue. It will require the examination of evidence as to whether any given Class member actually complained to the MOE and whether the MOE responded. Equally property-specific is the questions of whether, having responded, the MOE=s response was adequate in the circumstances. This will require a review of the data available with respect to a particular property at a particular point in time.
Enforcement of the EPA - 45(h)
-3174. It is unclear which, of a broad range of possible MOE activities, the plaintiff is referring
to when he alleges that the MOE failed to Aapply or enforce@ the EPA. The EPA can be applied or enforced in a myriad of ways, most of which are entirely discretionary on the part of the Minister, Director, or Provincial Officer.
75.
For example, the Minister has the discretion to issue Astop orders@ in certain
circumstances, effectively closing an industry entirely. The Director has the discretion to issue approvals (dealt with above) or a wide variety of control orders or clean up orders, depending upon the particular circumstances. An MOE Provincial Officer has the discretion to lay charges under the EPA leading to the prosecution of a company for an environmental offence.
76.
Assuming the court will review the alleged failure to exercise an enforcement discretion
[it is argued under the Law, below, that no reasonable cause of action exists for this claim], the assessment of whether this alleged failure constitutes negligence on the MOE=s part will again involve, as a matter of process, consideration of a wide variety of individual issues.
77.
For example, whether or not MOE officials were justified in Afailing@ to exercise these
discretions will require a consideration of the Aadverse effects@, if any, which existed from year to year, at each property, and for each person within the proposed Class. All the discretions require, as a precondition to their being exercised, that the MOE official has reasonable and probable grounds for believing that an Aadverse effect@ has occurred or has the potential to
-32occur. Thus, if a given Class member=s property was not suffering plant impacts or a Class member was not suffering health impacts as a result of Inco=s operations, MOE officials could not be faulted for failing to take steps to protect that individual.
78.
As a result, to assess whether an alleged Afailure to apply or enforce@ the EPA amounted
to negligence with respect to any given resident will require the same sort of detailed, propertyby-property and person-by-person analysis of contamination and causation as has been undertaken by the MOE with respect to the Rodney Street community in its March 2002 HHRA and March 2002 Order and as is currently being conducted by Inco under the CBRA process. The complicating difference is that the negligence analysis will be required to examine not current conditions, which are verifiable, but rather historic property and health conditions, for which there may or may not be records or information available.
79.
A further complicating difference, as noted by Inco in its factum, is that a Amere@
toxicological risk assessment or epidemiological study, no matter how exhaustive, will not suffice to establish causation and damages in a negligence lawsuit. The uncontradicted evidence of the plaintiff=s own risk assessor (supported by Inco=s experts) is that the first of these, a risk assessment, is Ano longer theoretically applicable to estimating an individual=s risk because there are no data relating to any individual=s behaviour, food consumption patters, etc. throughout his/her life@. Concerning the second of these, an epidemiological study, employing
-33epidemiological results Ato make a causal determination for an individual plaintiff is beyond the limits of epidemiology@. An individualized medical examination and diagnosis will be required for each class member to establish causation and effect.
Inco=s Factum, paras. 48 and 103
Conclusion on negligence 80. In summary, regardless of the allegation of negligence considered, it is submitted that as
a matter of process for the plaintiff to establish at trial that there existed on the part of the Crown during the relevant time period a duty of care, standard of care and breach of that standard, will require a detailed individualized examination of the circumstances of each Class member, specific as to person, property and time period.
B-2
HISTORIC INVOLVEMENT OF MOE
IN RELATION TO ALLEGATIONS OF NEGLIGENT MISSTATEMENT
The reports in question 81. All the allegations of negligent misrepresentation made by the plaintiff against the Crown
are based upon thirteen specific MOE reports and letters referenced in paragraphs 33 and 39 of the plaintiff=s Fresh as Amended Reply to Demand for Particulars of Her Majesty the Queen in Right of Ontario (AReply to Crown@). The actual reports and letters may be found at Exhibits D to P of the Affidavit of Lynne McArdle, sworn October 18, 2001, in support of the Crown=s motion for further and better particulars.
Reply to Crown, paras. 33 and 39
-34-
The alleged distribution 82. The plaintiff alleges that these reports and letters were distributed by the MOE to
proposed Class members. Alternatively, it is pleaded that alleged misrepresentations in them were disseminated to proposed Class members by the media and through public meetings. As a result, it is alleged that AGiven the extremely widespread distribution of these misrepresentations, it is clear that they were heard or read at some point by all Class Members including Pearson@.
Reply to Crown, paras. 24-30
The actual distribution 83. Dave McLaughlin conducted a review of each of these documents (which were produced
by his office of the MOE), and made inquiries of the MOE staff responsible for distributing the documents and speaking to the media about them. Based upon those reviews and inquiries, he was able to make detailed observations about how each report was distributed. Those observations are appended to this factum as Schedule C.
84.
They make it clear that although most of these reports were officially published by the
MOE, their distribution was not always the same. For almost all of the reports, a limited number of copies were made (eg. 50-100). Some were web-posted only. Only one of the reports, the letter of July 16, 2001, was circulated to all of the households in Port Colborne. The remaining documents were certainly not distributed to Aall proposed Class members@, as defined in the Claim. Only one of the reports (the March 2001 HHRA) and the three letters were circulated to
-35all the households in the Rodney Street community (some 300 homes). The 2000 Health Study was not publicly circulated at all, and was only posted on the MOE=s web page in the summer of 2000. Most of the reports were technical reports and, as a result, they were not bulk printed and were not distributed to the public, but rather were made publicly available through the local library (one copy) and the internet. It is unknown how many proposed Class members were aware of the library and internet copies and how many actually read them. Copies of some reports which were bulk printed and sent to the MOE=s Public Information Centre in Toronto would have been available upon request by any member of the public. However, there are no records of how many people requested copies.
McLaughlin Affidavit, paras. 46, 47
85.
The 1997 and 2000 Health Studies (Exhibits D and G) generated minimal media
coverage. As well, all other reports published prior to the spring of 2000 (Exhibits E, F, and H) received minimal media coverage and few, if any, interviews were given by the MOE in respect to them.
86.
However, commencing in the spring of 2000, with the establishment of the Public Liaison
Committee (APLC@) under the CBRA process, and the holding of regular monthly PLC meetings, the media started to follow environmental issues in Port Colborne much more carefully. The PLC had its own independent expert, Beak International, reviewing and critiquing the MOE reports. As a result, all of the MOE reports published subsequent to the summer of 2000 received a much higher level of media scrutiny, much of it critical of the MOE=s
-36conclusions and findings.

87.
This is reflected in the sort of media coverage received by the March 2001 HHRA. This
was the first comprehensive human health risk assessment conducted by the MOE after the discovery in the fall of 2000 of higher than expected levels of total nickel on some properties in the Rodney Street community. As a result of this discovery, and further as a result of the commencement of this action in March 2001 and media publicity actively sought by plaintiff=s counsel, the March 2001 HHRA received considerable media attention in the local media, most of it highly critical.
88.
By March 2001, and continuing throughout the months that followed, the residents of
Port Colborne were broadly aware of this legal action and were exposed to numerous media reports distributed by plaintiff=s counsel expressing intense criticism of the March 2001 HHRA and its conclusions.
89.
It is submitted that given the different publication dates, different distribution, and
different media coverage of the various MOE reports over time, as a matter of process the court at trial will not be able to assume that all or even most residents of the proposed class either read the reports or heard media reports about them. This is clearly an individual issue which can only be determined by an examination of each class member.
-3790. There is no credible evidence that all or even most residents either read the MOE reports,
heard media reports about them or attended public meetings at which they were discussed. Although the Kaufmann affidavit alleges that Ait would be reasonable to conclude that because of the ... extremely widespread nature of these representation that the entire Class has been exposed@, on cross-examination Kaufmann admitted that he had only spoken to 20 to 30 class members. Moreover, the cross-examination of the plaintiff revealed, as a case in point, that he had not read any of the reports.
Kaufmann Affidavit, para. 20 Cross-examination of Wolfgang Kaufmann, April 24, 2002 (AKaufmann Cross-Examination@), Q. 66-72 Pearson Cross-examination, Q. 103-104
91.
Moreover, given the highly critical nature of press coverage of the MOE reports since the
summer of 2000, it remains very much an open question the extent to which residents of Port Colborne would have accepted the conclusions and findings of the MOE reports at face value. Again, this is an individual issue which can only be resolved through the examination of every Class member.
92.
Further, as the discussion below reveals, it is submitted that even assuming all or most
class members read the MOE reports or heard media reports about them, given that the actual representations in the reports are not, on their face, as has been alleged in the Statement of Claim, it remains a highly individual issue as to how each Class member who read or was aware of the reports interpreted them.
-38The alleged misrepresentations 93. The plaintiff alleges that these reports and letters contained two false statements. The
first was that Aemissions from the Refinery have not posed any immediate risk, or any risk to human health@. This is allegedly false because, it is pleaded, AClass members have been exposed to the risk of harm and to actual harm@ as pleaded elsewhere in the Claim and Reply.
Reply to Crown, paras. 24 and 31
94.
The second was that Aone of the substances that Class Members were being exposed to
and are still being exposed to is nickel, and not the known human carcinogen nickel oxide@. This is allegedly false because, it is pleaded, AClass members have not been exposed to nickel, but instead have been primarily exposed to the known human carcinogen nickel oxide@.
Reply to Crown, para. 24 and 31
95.
The reports in question do not contain the two statements referred to above.
[Furthermore, the first statement, even if it were contained in the reports, is a true statement.]
96.
The plaintiff=s witness, Kaufmann, was specifically challenged to point out the second of
the alleged misrepresentations in any of the reports. He conceded Athey may not make a positive statement@ and indicated he would have to Adouble-check@. But when asked to Adoublecheck@, he refused. Kaufmann also admitted that he had not actually read each of the reports. He had only Alooked at them@. AI can=t say I have read them all from cover to cover@. Thus, it was shown that his evidence on the content of the MOE reports, like his evidence on who within the class had actually read them, had no credible foundation.
-39Kaufmann Cross-Examination, Q. 120-137, Q. 117
The actual representations 97. The allegation that all of the documents referred to above contain the first statement,
Aemissions from the Refinery have not posed any immediate risk, or any risk to human health@, is wrong. As the evidence of the MOE expert who reviewed each report in detail establishes, the actual statements were differently worded, were more qualified, and changed over time. It goes without saying that the MOE maintains they were true.
McLaughlin Affidavit, para. 55-58
98.
The allegation that any of the documents contain the second statement, that Aone of the
substances that Class Members were being exposed to and are still being exposed to is nickel, and not the known human carcinogen nickel oxide@, is also false. No document contains such a statement. In fact, far from denying the presence of nickel oxide, beginning with the March 2001 HHRA, MOE reports make it very clear that, in the MOE=s view (based on the evidence then available to the MOE) most of the nickel in the soil in Port Colborne is nickel oxide. Moreover, according to McLaughlin, there is no basis to conclude from reading the earlier reports that the MOE had ruled out the presence of nickel oxide. The most one can reasonably conclude from reading them is that the writers did not think that the species of nickel was particularly relevant to the report=s findings.
McLaughlin Affidavit, paras. 59, 61 and 63
99.
Even assuming, for the sake of argument, that the earlier reports contained such a
statement (which they do not) there is no evidence of any detrimental reliance within the class, as
-40a result. Despite the release of the Acorrective@ March 2001 HHRA (which states the contamination in the soil is nickel oxide) and despite repeatedly misleading and alarmist news releases by plaintiff=s counsel concerning the (carcinogenic) health impacts of nickel oxide on the people of Port Colborne, there is no evidence of a mass exodus of residents from Port Colborne or mass change in behaviour of residents.
100.
It is submitted that without an individualized inquiry into the circumstances of each
proposed Class member, one cannot come to any factual conclusions concerning: 1. whether any individual actually read or heard about each of the above reports and letters; how, in the face of what is said and is not said in the reports, any individual interpreted what they read or heard; whether any individual heard media coverage of the reports; how, in the face of media coverage which was highly critical of the reports and, any individual responded to what they read or heard, or if they relied upon what they read and heard at all; whether any individual attended public meetings at which the reports were discussed; how, in the face of criticisms by the PLC consultant and plaintiff=s counsel, any individual responded to what they heard or if they relied upon what they heard at all; and, whether they would have responded differently had different information been included in those reports.
McLaughlin Affidavit, para. 74 [for points a, b, d, and g; c, e and f are purely submissions]
2.
3. 4.
5.
6.
7.
-41C. 101. CURRENT ACTIVITIES OF THE REGULATORS AND INCO
Well prior to the commencement of this action, extensive environmental and health
investigations by the public regulators had been conducted. Also, environmental remediation activities initiated by Inco and the public regulators were well underway and are currently works in process. These processes are designed to address all community concerns in relation to environmental contamination.
102.
As described more fully below, these processes include: (1) the Community Based Risk
Assessment process undertaken by Inco, (2) the Public Liaison Committee, (3) numerous health and other studies, including Human Health Risk Assessments undertaken by the public regulators, MOE and Region of Niagara Public Health Department (ARNPHD@), (4) draft and final cleanup Orders issued by the Director, and (5) appeal processes to the Environmental Review Tribunal under the EPA. These various processes are being undertaken pursuant to the requirements of the Environmental Protection Act, the Environmental Bill of Rights, the MOE=s 1996 Guidelines for Use at Contaminated Sites, and extensive intergovernmental and international expert peer review programs.
103.
It is submitted that a class action is not a preferable procedure to these processes, taken as
a whole, for addressing all significant environmental concerns in Port Colborne and all damages allegedly sustained as a result of Inco=s historic operations of the Refinery.
(1)
The Community Based Risk Assessment
-42104. In 1996, the City of Port Colborne approached both the MOE and Inco for advice as to
how to deal with the numerous properties in the city containing elevated levels of nickel, copper and cobalt.
Haniff Affidavit, para. 3
105. Also in 1996, the MOE published the AGuidelines for Use at Contaminated Sites in Ontario@ to help owners of contaminated property clean up the soil so that the property could be redeveloped for alternative land uses. The Guidelines describe three approaches for cleaning up contaminated soil: 1) background, 2) generic and 3) site specific risk assessment (SSRA).
106. The background approach involves the use of soil guidelines to restore the site to natural background conditions. Table F of the decommissioning guidelines outlines background concentrations using Ontario Typical Range values.
107. The generic approach involves the use of soil guidelines that have been developed to protect human health and the natural environment (Tables A-D of the Guidelines). The genericeffects based guidelines are set to protect the most sensitive of plants, soil and aquatic organisms and human health anywhere in Ontario, while eliminating the need for MOE review and approval.
108. The site specific risk assessment (SSRA) approach does not use a list of established soil
-43guidelines. Instead, the property owner obtains the services of a qualified consultant to develop risk-based soil guidelines that are specific to and can only be used to remediate a specific contaminated property. Because it is specific to one site, it is called a site specific risk assessment. Generally speaking, property owners who clean up their contaminated soil using the background or the generic effects-based soil guidelines do not require Ministry approval. However, if an SSRA approach is used, the property owner must submit the SSRA approach to a third party independent reviewer and then the proposal must be submitted to the MOE for approval.
109.
In the case of Port Colborne, the SSRA approach would have been a protracted process
given the number of properties with elevated levels of nickel, copper and cobalt. As a practical matter, individual site specific risk assessments in the affected areas could take decades to complete, obtain MOE approval and then implement. Accordingly, in considering possible alternatives, discussions among the City, the MOE and Inco in 1998 and 1999 led to the proposal by Inco of a Community Based Risk Assessment (CBRA) approach, a voluntary communitywide risk assessment which considers site specific scientific data pertinent to the Port Colborne area.
Haniff Affidavit, 8, 9 and 10
110.
The CBRA was endorsed by the City of Port Colborne through council resolution in
March 2000 and the PLC approved the Scope of Works for the CBRA on November 30, 2000. The City Council then adopted the scope of works by resolution on December 18, 2000. On
-44January 12, 2001, the MOE sent the PLC a letter formally endorsing the CBRA Scope of Works.
111.
Inco is undertaking the CBRA using the MOE=s Guidelines as a template. Under the
CBRA approach, Inco has agreed to remediate properties according to the findings of the CBRA and the development of specific procedures as part of the CBRA. As set out in Technical Scope of Work for the CBRA process, Inco has publicly committed to the following: As the proponent of the CBRA process, Inco is committed to developing a scientifically sound, risk based and practical solution which protects human health and the environment, to resolve the issue of contamination as a result of Inco=s operations.
Haniff Affidavit, para. 11 ATechnical Scope of Work - Community Based Risk Assessment for Port Colborne, November 30, 2000@, in Affidavit of Joseph Grignano, sworn January 17, 2002, (AGrignano Affidavit@), Exhibit AO@, Plaintiff=s Record, p. 8
112.
In May 2000, Inco retained Jacques Whitford Environment Limited (AJWEL@) to
develop the specific aspects of the CBRA in consultation with the City and the MOE. The public is also involved in the process through a Public Liaison Committee (APLC@) appointed by the City Council [see APublic Liaison Committee@, below]. Inco is funding the costs of the CBRA process. Inco has also agreed to fund the cost of a separate socio-economic study [which has come to be called the Aproperty valuation study@] to be carried out at the same time as the CBRA.
Haniff Affidavit, paras. 11 and 12
113.
Once the CBRA model is developed, based on the results of ongoing sampling and
analysis, the remediation phase will begin. Suitable remediation, if and where called for, will
-45depend on individual property characteristics. It might consist of, for example, the addition of substances to existing soil to stabilize soil conditions, the use of certain vegetation that naturally absorb nickel from soil, or the removal of soil. Prior to the initiation of this lawsuit, it was hoped that the development of the CBRA might be completed in 2002, with remediation, if and where called for, to begin thereafter.
114.
Although there have been some delays in the CBRA process, these are normal, necessary
and appropriate in a process such as this, which requires consultation and scientific debate. The PLC=s independent consultant, Beak, has demanded significant additional work from Inco=s expert. This show that the process is working very well, resulting in a superior product that better protects the interests of the community.
Affidavit of Paul Nieweglowski, sworn April 18, 2002 (ANieweglowski Affidavit@), paras. 4-6
(2) Additional Studies Being Conducted by Inco 115. The CBRA process does not officially include a Human Health Study or a Property
Valuation Study. The MOE only required Inco to do a human health risk assessment (HHRA) and ecological risk assessment (ERA) as part of the CBRA process, because that is all that is required under the MOE=s Guidelines. However, as a direct response to community input, and at the request of the PLC, in early 2001 Inco voluntarily agreed to conduct these two additional studies to augment the work being done under the CBRA process. The Property Valuation Study contract was awarded in December 2001, and the Study is expected to be completed by December 2002.
-46Nieweglowski Affidavit, paras. 10 and 11
116.
As note earlier, the Human Health Study for the Rodney Street Community by the
RNPHD had to be terminated due to a lack of public participation as a result of a campaign of opposition mounted by plaintiff=s counsel. Because of this, the Ventana=s Human Health Study had to incorporate some elements that would have been done by the RNPHD study. Ventana=s health study is comprised of approximately 19 sub-studies to assess the current health of the community and determine whether scientifically meaningful relationships exist between any health issues and exposures to chemicals of concern. The public has had an opportunity to input in the study development. These studies will commence immediately.
Nieweglowski Affidavit, para. 12-13
117.
On the issue of compensation mechanisms which might arise out of any CBRA-related
study, given these studies have yet to be completed, they may well recommend such mechanisms. Compensation could be administered in a variety of ways. The important point is that until such time as any health or property value impacts are shown to have occurred as a result of Inco=s operations, and current evidence suggests otherwise, the question of compensation mechanisms is premature.
Nieweglowski Affidavit, para. 14
(3) Public Liaison Committee 118. The Public Liaison Committee, or PLC, is an integral part of the CBRA process.
Constituted in accordance with Terms of Reference approved by the MOE and Inco and adopted by City Council resolution, the PLC consists of seven lay persons who, with expert assistance
-47from their own independent expert, represent the residents of Port Colborne in every aspect of the CBRA process.
PLC Terms of Reference, Grignano Affidavit, Volume III, Plaintiff=s Motion Record, Exhibit P, at 50
119.
The purpose and mandate of the PLC, and its meetings, are set out in the Terms of
Reference of the PLC. The purpose is: 1. to investigate and provide input to INCO and the Ministry on contamination in the Port Colborne area and on the manner in which the CBRA is conducted; to solicit public input; to provide information to the public; and, to provide input to Inco and the MOE respecting the scope of work, preparation and implementation of the CBRA to address soils contamination attributed to Inco operations. The mandate of the PLC, and its meetings, is to: 5. receive and review all appropriate information respecting the contamination of lands in Port Colborne; provide input to the Ministry and INCO; monitor the progress of the CBRA; review the findings and recommendations of the CBRA and provide input to Inco and the Director; provide input to the Ministry and INCO on methods of implementing the recommendations of the CBRA; and, submit a final report including comments and advice to the Ministry with respect to the PLC and CBRA processes.
2. 3. 4.
6. 7. 8.
9.
10.
-48PLC Terms of Reference, at 51
120.
Public participation in the PLC process is expressly provided for: 1. Obtaining the views of the public when developing PLC input to the Ministry and INCO; Seeking public input through public forums. At these public forums, Athe public will have the opportunity to ask questions of INCO and the MOE related to the CBRA@; and, Permitting public delegations to attend regular meetings of the PLC Ato speak to the subjects of the agenda for that meeting@.
PLC Terms of Reference, section 7
2.
3.
121.
The PLC operates as an open and independent body. It is not controlled by Inco or the
MOE. As the PLC terms of reference set out, it is controlled by its own Chair and voting members. No important decisions of the PLC are made in private. All are made in public. All PLC meetings have been open and transparent and have had significant public input. Minutes and reports discussed at the PLC meetings are available at the municipality=s website and copies of the preceding minutes are, as part of the Agenda of the PLC meetings, endorsed and available at the following meeting.
Nieweglowski Affidavit, paras. 7, 18, 23 and 29
122.
The PLC has formed a technical sub-committee (TSC) chaired by its independent expert,
Beak Consulting, which meets regularly with the consultants of other parties to clarify protocols, sampling results and interpretations. Beak was chosen by the PLC, by public tender, at the outset of the CBRA process, to provide the PLC with the expertise it required to review studies prepared by Inco. Although the public is free to attend the TSC meetings, such meetings of experts are a
-49common feature of environmental remediation processes and are designed to expedite the resolution of issues requiring experts.
Nieweglowski Affidavit, paras. 8, 29 and 31
123.
In the MOE=s view, the PLC has operated as a very effective two-way window to the
community. It may be that certain residents in the community, notably the affiant for the plaintiff, Ms. Ellen Smith, and certain other residents from the Rodney Street community, are frustrated because they have not been allowed to take control of a process that is intended to serve the entire community. Nevertheless, Rodney Street residents have been extremely active, vocal participants in PLC meetings.
Nieweglowski Affidavit, 20 and 21
124.
The MOE=s view of the effectiveness of the PLC process has been supported by the
independent evidence of one of the lay PLC members, Paul Dayboll. Dayboll came forward as an independent witness after plaintiff=s counsel declined to assist him in filing an affidavit in these proceedings to respond to the criticisms of the PLC and CBRA processes expressed by the plaintiff=s affiant, Ellen Smith.
Cross-Examination of Paul Dayboll, April 30, 2002
125.
In Dayboll=s view, the PLC and CBRA processes have permitted the community of Port
Colborne to address its contamination problem on its own terms, and in a way that is completely preferable to litigation. In Dayboll=s own words: I've been part of the CBRA process from the outset, from the beginning of the PLC. And I can't think of another process where the community would have as much input and say and as much ability to watch over the process as we do here.
-50My fear of a process that differs from this is the loss of the community's ability to somewhat have a say and have control. And one of the things that is interesting in this process is while we don't have, while we don't have legislative ability or ability to push a law or, and we've stated that several times saying that we are just a committee of the PLC, we seem to have had an amazing amount of power to make things move along. Example, when we wanted to do a health study, and that became really evident through community meetings, that health was the most important thing, people were really worried about health. In a normal SSRA you wouldn't be allowed to have a health monitoring study. You wouldn't be able to go in and take blood and all that kind of stuff; it wouldn't be part of the process. You would only do a human health risk assessment. When we became aware of that we were able to go to Inco and say to them listen, a human health study has to be a part of this thing. And I think because it was the community asking and it wasn't just being mandated to them, they got on board and said yes, we'll fund it. We also wanted a socio-economic impact study which we realized was kind of a property valuation study at the end. We were able to ask for that, which was really outside of the SSRA. And I think that if you had gone through another process, we wouldn't have all those abilities. So as a committee we've been surprised, actually, in some ways as to how much we've been able to ask for, push for, and receive in the end. And I think that that is really why I believe the process is the best process at this moment. In the end, after we're done the CBRA, we may find that some people or some portions of our community are going to have to go off and use other processes to get resolution to their concerns or to the level that they want resolution. I think for a lot of the community, I think for a lot of the community I believe that the CBRA process needs to be completed now, it needs to be completed without any hindrance of other processes in, ongoing at the same time. But I believe at the end of the CBRA of the first phase, phase one of the CBRA, we're going to have information that we couldn't have gotten any other way. And then in phase two we can really look at how we're going to compensate people, how are we going to make the city clean again, how are we going to make the city healthy again, and how are we going to put people back on its feet. And I think that that has to be done by the community. I think for it to be done through any other process would take, would take all of that
-51ability out of the people's, of Port Colborne's hand and put it into the hands of one or two people somewhere else. And that's not what Port Colborne wants. Port Colborne wants to solve this problem on its own. And we are doing that through the CBRA process. And at this moment it's the best process on the go at this time. You know, we're really pleased with the way it's gone.
Cross-Examination of Paul Dayboll, Q. 19
(4) Studies Undertaken by Public Regulators 1997 Human Health Risk Assessment 126. In 1991, the Phytotoxicology Section of the MOE conducted soil and vegetation surveys
in the vicinity of the Inco Refinery. These surveys were part of an on-going assessment carried out in the area in response to local concerns over emissions of nickel and other metals from the Inco facility. The highest level of soil nickel was found, at one location, to be 9,750 ppm.
James Smith Affidavit, para. 3
127.
As a result of the findings of the survey, a Human Health Risk Assessment (AHHRA@)
was undertaken by the MOE to determine whether there was any evidence of risk to human health associated with exposures to the nickel, copper or cobalt in the soils of the Port Colborne area. An HHRA is generally undertaken by the MOE when chemicals in soil are found at levels that raise concerns about potential health risk in a community.
128.
The report (hereinafter the A1997 HHRA@), assessed health risks along two lines: (1) by
undertaking a risk assessment and (2) by assessing population health. As to the first of these, the
-52MOE made use of environmental monitoring data and recent toxicological information to evaluate the likely exposure to metals in the Port Colborne area and to determine the potential health effects from such exposure. The risk assessment model used by the MOE was consistent with the risk assessment protocols used by regulatory organizations such as Health Canada, the US Environmental Protection Agency and environmental agencies at the US state level. As to the second of these, the population health survey, it was conducted by the epidemiologist from the RNPHD who examined population data for evidence of any elevated incidence of cancer or adverse reproductive outcomes within the Port Colborne population. There was no evidence of an elevation in the rate of reproductive failure or birth defects in the Port Colborne population compared with the Ontario population. In addition, the most current cancer incidence rates (at that time) for all sites and both sexes were within expected limits.
James Smith Affidavit, paras. 5, 7 and 14
129.
As a result of this comprehensive health study, the MOE and RNPHD jointly concluded
in 1997 that no adverse health effects were anticipated to result from exposure to nickel, copper or cobalt in soils in the Port Colborne area. The agencies also found that the review of population health data did not indicate any adverse health effects which may have resulted from environmental exposures in the Port Colborne area.2 The findings were published in August 1998.
James Smith Affidavit, paras. 15 and 16
It may be noteworthy that the report was fully peer reviewed, including by the experts at Health Canada, the former employer of the plaintiff=s risk assessor and the agency which in 1994 issued toxicity standards for nickel oxide that the plaintiff now appears to rely upon so heavily as evidence of nickel oxide=s carcinogenicity Aat any level@.
-53-
2000 Human Health Risk Assessment 130. Following the release of the 1997 HHRA, the MOE undertook additional soil sampling
studies in 1998 and 1999 in order to more precisely define the geographic extent of soil contamination. The 1998 and 1999 soil surveys did not find higher soil nickel levels than in previous surveys. Therefore, the health risk study conclusions from 1997 were still applicable to the 1998 and 1999 soil investigations. As a result, the 1997 HHRA was re-released in 2000 by the RNPHD.
March 2001 Human Health Risk Assessment 131. During a public information forum held in January 2000 at the Port Colborne City Hall
(as part of the CBRA process), a resident of Rodney Street, a street located adjacent to the Inco Refinery, requested that the MOE sample soil on his property. As a result of this request, the MOE sampled the front and back yards of the property in June 2000. Analysis of the soil samples revealed soil nickel concentrations of 16,000 ppm. These results were considerably higher than expected and considerably higher than the highest previous result of 9,750 ppm.
132.
As a result of the findings for the single Rodney Street property, the Medical Officer of
Health requested that the soil be sampled on the remaining 16 residential properties on Rodney Street. This additional sampling of front and back yards was conducted on October 3rd and 4th, 2000. Preliminary results indicated that surface soil nickel levels ranged up to 17,000 ppm and
-54that the soil metal levels were highly variable between properties. In light of this new information concerning contamination in the Port Colborne community, the MOE was of the view that further soil investigation was warranted and that an additional Human Health Risk Assessment (HHRA) should be conducted.
James Smith Affidavit, paras. 20, 22
In-Depth Soil Investigation of Rodney Street Community 133. The MOE=s further soil investigation commenced with a community wide sampling
program. In total, more than 1,300 samples were collected from 179 properties in the Rodney Street community. In addition to the residential sampling, soil trenches were dug at several locations in the vicinity of Rodney St. to determine if soil was contaminated at depth. The average soil nickel concentration in the Rodney Street community was found to be 2,545 ppm. This was consistent with the 1998 and 1999 MOE soil investigations that predicted that this area of Port Colborne could have between 2,000 and 4,000 ppm nickel in surface soil. However, property-by-property sampling revealed substantial variation in both the numbers of contaminants and the soil contaminant concentrations, with the maximum soil nickel level on one property reaching 17,000 ppm.
James Smith Affidavit, paras. 23, 25, 26
March 2001 Human Health Risk Assessment 134. As a result of these higher numbers, the MOE resolved to conduct a further human health
risk assessment for the Rodney Street Community. The new HHRA, which commenced in the fall of 2000, was conducted using the same protocols and procedures as the 1997 HHRA. The
-55resulting report was released at the end of March, 2001 as a report entitled ASoil Investigation and Human Health Risk Assessment for the Rodney Street Community: Port Colborne (2001)@ (AMarch 2001 HHRA@).
135. action.
Just days before the release of the March 2001 HHRA, the plaintiff commenced his legal
136.
The key findings of the March 2001 HHRA were as follows: (1) 10,000 ppm soil nickel was an appropriate intervention level to protect toddler aged children in the Rodney Street neighbourhood; nickel levels in the neighbourhood do not pose any immediate or longterm risks to adults; 16 of 179 properties had elevated nickel levels in excess of 10,000 ppm, and therefore warranted remediation; Inco was the source of the soil nickel; 10 properties had soil lead levels of over 1,000 ppm lead, a potential risk to children. These elevated levels were attributed to historic domestic use of lead based paints, leaded gasoline and discarded lead-acid batteries and not to Inco emissions. As such, the MOE could not order Inco to remediate; no further action was warranted for the remaining five metals (antimony, beryllium, cadmium, copper and cobalt) and arsenic.
(2)
(3)
(4) (5)
(6)
137.
Based upon the March 2001 HHRA, the MOE proposed a draft Order requiring Inco to
remediate the 16 properties which were found to have soil nickel levels in excess of 10,000 ppm
-56and to sample properties north of Louis Street. The March 2001 draft Order is discussed below, under the heading AThe Director=s Orders@, below. In April 2001, Inco agreed to voluntarily remediate those properties.
138.
The March 2001 HHRA was peer reviewed by an international panel of experts, namely: 1. 2. 3. 4. Dr. Lynne Haber, Toxicological Excellence for Risk Assessment (TERA), Cincinnati, Ohio; Dr. John Wheeler, Agency for Toxic Substances and Disease Registry (ATSDR), Atlanta, Georgia; Dr. Ambika Bathija, United States B Environmental Protection Agency (USEPA), Washington, D.C.; Dr. Tor Norseth, Norwegian National Institute of Occupational Health, Oslo, Norway.
139.
Despite the critical peer review, shortly after the release of the March 2001 HHRA, the
MOE discovered a calculation error in one of the laboratory tests that the MOE had used. It was believed that the error could result in a change to the report=s recommendations pertaining to nickel (but not the other metals and arsenic in soil). As a result, the MOE undertook steps to reassess the March 2001 HHRA. Inco, however, continued with its plan of voluntary remediation.
140.
In reassessing the March 2001 HHRA, the MOE carefully reviewed the public comments
that were received during the 30 day public comment period. Those comments received ranged from the MOE being too stringent to not being stringent enough in some of the values it used and
-57the approach it took in developing the intervention level for nickel. Additional comments were provided by RNPHD which had submitted the report to a number of reviewers, including Health Canada.
141.
In May, 2001, in response to further requests from the public, the MOE conducted
additional soil sampling in the Rodney Street community. The MOE also conducted tests with respect to nickel bioaccessibility, nickel speciation in soil, and air monitoring. In addition, the MOE expanded its list of peer reviewers and increased the role of the peer reviewers to not only provide a critical review of the MOE=s work, but also to reach consensus as a panel on key issues in order to guide the MOE in making critical scientific judgments in revising the March 2001 HHRA. Throughout this process the MOE kept the public informed about the review process through letters and attendances at public meetings.
James Smith Affidavit, paras. 34, 35, 36
October 2001 Human Health Risk Assessment 142. Based on the new test results and the consensus recommendations of the peer review
panel, the MOE produced the October 2001 Human Health Risk Assessment (AOctober 2001 HHRA@). This report was structured similarly to the March 2001 HHRA, but was based on different and more sophisticated testing, as well as the expanded peer review process noted above. In producing this report, the MOE consulted with Health Canada and a number of outside experts.
James Smith Affidavit, Exhibit AE@, Crown=s Record, Volume II James Smith Affidavit, paras. 37, 41
-58143. The October 2001 HHRA came to essentially the same conclusions as the March 2001
HHRA for arsenic and all other metals except for nickel. For nickel in soil, the intervention level was lowered from 10,000 ppm to 8,000 ppm. The result was that an increased number of properties in the Rodney Street community, a total of 25 properties, required remediation. The draft clean up Order was revised accordingly.
144.
As well, like the March 2001 HHRA, the October 2001 HHRA was posted on the
Environmental Bill of Rights Registry for a 30 day public consultation. A copy of the full report went to all 25 affected property owners, and was also placed on the MOE=s website. A hard copy was placed in the Port Colborne public library. As well, a letter went from the MOE to every resident of Port Colborne, briefly summarizing the report, explaining how they could obtain a copy, and inviting them to participate in the 30 day public comment period. In addition, an open house was held in Port Colborne to discuss the report.
145.
As a result of the public circulation of the October 2001 HHRA, the MOE received 12
submissions, representing all principle stakeholders, including: Inco, Inco=s consultants, the technical consultant for the PLC, the RNPHD, plaintiff=s counsel, a community group, and several from members of the public. The MOE considered all comments received, and consulted with its expert panel of peer reviewers, so as to finalize the October 2001 HHRA. The result is a report entitled ASoil Investigation and Human Health Risk Assessment for the Rodney Street Community, Port Colborne (March 2002)@ - the March 2002 HHRA.
-59James Smith Affidavit, Exhibit AF@, Crown=s Record, Volume IV
March 2002 Human Health Risk Assessment 146. The key recommendations of the March 2002 HHRA reaffirm those in the October 2001
HHRA: (1) (2) (3) an intervention level of 8,000 ppm should be set for soil nickel. The intervention level for nickel requires action through remediation of soil; soil nickel levels in the community should not pose any immediate or longterm risks to other age groups; an intervention level of 1,000 ppm for lead should be set for play areas on residential properties or in public areas covered by sod or grass to which children have access. The bare soil intervention level for lead is 400 ppm for these areas. The intervention levels for lead require action through follow-up by individual residents to reduce personal exposure to lead; no action for the remaining five metals (antimony, beryllium, cadmium, copper, cobalt) and arsenic in soil is required.
(4)
147.
Simultaneous with the release of the March 2002 HHRA, the MOE served the final
remediation Order on Inco and provided all known affected property owners with a copy of same. The Order will implement the recommendations and conclusions of the March 2002 HHRA. The Order is described in more detail below.
Other Studies by Public Regulators 148. In addition to the above studies, the MOE, the RNPHD and the School Boards have in
recent years conducted a battery of studies in the Port Colborne community. Those studies involve soil sampling, phytotoxicology, blood screening for lead levels, air quality testing in the
-60schools, ambient air monitoring, water sampling, and an expert working group on air and soils in the schools.
James Smith Affidavit, Exhibit AF@, Crown=s Record, Volume IV, at 52-53 of 54 Kaufman Cross-Examination, Q. 181- 305
(5)
The Director=s Orders
Regulatory Context for a Director=s Order 149. Under the Environmental Protection Act, the Director has the authority to issue orders of
various types including orders requiring private parties to carry out certain activities. A Director=s Order must be based upon evidence, and it is typically preceded by a Provincial Officer=s Report, or an expert report or survey of some kind, which establishes that the evidentiary precondition of the Order provision relied upon has been met.
Haniff Affidavit, paras. 13, 14 and 15
150.
Once the necessary evidence is in place, as the first step in issuing an Order under the
Act, the Director will issue a ANotice of Proposed Order@ along with a Adraft Order@ to the person being ordered, also known as the AOrderee@. The Notice of Proposed Order provides for written submissions to be made to the Director within 15 days after the date of the service of the Notice. The Notice of Proposed Order, with the attached draft Order, is also posted on the Environmental Bill of Rights registry for a 30 day public review period. The public and interested stakeholders, including the Orderee, then have 30 days in which to comment on the draft Order and the evidence which underlies it. The Director has an obligation, at common law, to consider the comments received, but is not obliged to agree with them or make any changes to the draft Order as a result of them.
-61Haniff Affidavit, paras. 13, 14 and 15
151.
Once the 30 days have expired and the Director is satisfied with the form of the draft
Order, the Order is issued in final form.

March 2001 Draft Order 152. The aforenoted regulatory process has been fully engaged in Port Colborne. As noted
previously, in March 2001, the MOE released its March 2001 HHRA. Based upon the March 2001 HHRA, the Director determined that there was an evidentiary basis for concluding that Inco, through the operation of its refinery in Port Colborne, had discharged contaminants into the natural environment which posed a risk to human health for some residents in the Rodney Street community of Port Colborne. As a result, on March 28, 2001, the Director issued to Inco a Notice of Proposed Order with an attached draft Order under the EPA. The draft Order was also provided to the public by posting on the Environmental Bill of Rights internet Registry. Both Inco and the public were invited to comment on the draft Order. The Director received four submissions as a result, from Inco, the plaintiff=s expert, the plaintiff=s legal counsel and one resident.
Haniff Affidavit, paras. 22-25
153.
Using the intervention level established through the March 2001 HHRA of 10,000 ppm
nickel in soil, the draft Order required that Inco develop and implement a plan for the remediation of the 16 properties in the Rodney Street Area that were contaminated with nickel in excess of 10,000 ppm. The draft Order also required Inco to carry out additional testing north of
-62the area that had previously been tested. However, once the MOE concluded that an error had been made in calculating the intervention level in the March 2001 HHRA, the Notice of Proposed Order was suspended until further reassessments could be made.
Haniff Affidavit, para. 24, 26
154.
Despite the draft Order not being finalized, Inco attempted to voluntarily undertake the
remediation and testing activities specified in the draft Order. However, Inco=s efforts to undertake the remediation were not successful due to property access issues, namely, the opposition of affected residents led by plaintiff=s counsel. Thus far, only 5 properties have been remediated due to this opposition.
October 2001 Draft Order 155. As noted above, in October, 2001, the MOE released the October 2001 HHRA in draft
form. The report concluded that the appropriate intervention level for soil nickel was 8,000 ppm. Based upon the October 2001 HHRA, on October 30, 2001, the Director served upon Inco another Notice of Proposed Order with an attached draft Order. The draft Order and the October 2001 HHRA were again made available for public comment on the EBR Registry. Two public submissions were received by the Director, as a result. The draft Order proposed similar requirements for remediation and investigation as were proposed in the draft Order of March 2001. However, because of the new intervention level of 8,000 ppm, the October 2001 draft Order proposed that Inco remediate an increased number of properties B 25 in total.
-63March 2002 Final Order 156. On March 28, 2002, both the October 2001 draft Order and the October 2001 HHRA
were finalized, served upon Inco and made publicly available. The March 2002 Order maintains the 8,000 ppm nickel soil intervention level of the preceding draft. Given that Inco has already remediated five properties on a voluntary basis in accordance with the first draft of this Order, only 20 properties within the Rodney Street community remain to be remediated under the March 2002 Order.
Effect of the March 2002 Final Order 157. Like its draft predecessors, the March 2002 Order not only requires Inco to conduct an
immediate cleanup of the 20 remaining properties in the Rodney Street community which are at or exceed 8,000 ppm nickel soil levels, it also requires Inco to do additional sampling and to propose and carry out remediation of any properties in Port Colborne which are found to be at or exceeding 8,000 ppm nickel soil levels. Specifically, the Order requires Inco to prepare a Remediation Plan for the remediation of lands in the Rodney Street Area and Surrounding Area (the rest of Port Colborne) that are contaminated with nickel at or in excess of a concentration of 8,000 ppm. It further required Inco to submit the Remediation Plan to the Director for approval by May 1, 2002.
Haniff Affidavit, paras. 34, 36-37
158.
Under the terms of the Order, all affected residents will be afforded an opportunity to
provide the Director with their comments on the Remediation Plan before the Director makes a
-64decision under the Order on whether to approve it. The Order requires Inco to provide a copy of the Remediation Plan by May 1, 2002, to every affected residence of the Rodney Street Area and the area north of Louis Street (ie. all properties having 8,000 ppm or more of nickel in the soil). The residents living on those properties were afforded a two week period from the date they receive the Remediation Plan to provide their written comments to the MOE. The Director will review and consider the submissions in deciding whether to approve Inco=s Remediation Plan.
159.
The Order is intended to complement the CBRA process. It is aimed at quickly
eliminating all significant, identified, risks of human health impacts in Port Colborne which could result from soil contamination resulting from Inco=s historic operations. Plant and other impacts will be addressed under the CBRA process.
Haniff Affidavit, para. 38-39
160.
In order to complement the CBRA process, the Director anticipates that the Order will be
carried out in two stages. The first stage, involving principally the Rodney Street Area, will be carried out by the summer of this year, reflecting the fact that the 25 properties of the Rodney Street Area having 8,000 ppm or more of nickel in their soil have already been identified by the Ministry. As well, Inco has undertaken additional sampling north of Louis Street (an area immediately to the north of the Rodney Street Area). If the results show properties at or exceeding 8,000 ppm nickel in the soil, then Inco will be required to remediate these properties as well by this summer.
-65161. The second stage, involving the balance of Port Colborne, will be carried out over the
longer term through the human health risk assessment which will be conducted by Inco under the CBRA process. Under the second stage of implementation of the Order, the Director expects Inco will identify any other properties in the Port Colborne ASurrounding Area@ (that is, properties outside the Rodney Street Area) having 8,000 ppm or more of nickel in the soil - if there are any - through its investigations under the CBRA program. Once those properties are identified, then Inco will similarly serve the affected properties with the Remediation Plan. Residents living on those properties will then have a two week period in which to make submissions to the Director concerning the Remediation Plan. As of March 28, 2002, the Director expected this to occur sometime in the late fall of 2002.
Haniff Affidavit, paras. 41, and 50
(6) Statutory Appeals from a Director=s Order 162. It is an important feature of the regulatory regime of the EPA under which cleanup orders
are made that anyone affected by the Order has a statutory right of appeal. Once an Order is finally issued by the Director, the Orderee has 15 days under the provisions of the Act in which to appeal the Order to the Environmental Review Tribunal. By virtue of the provisions of the Environmental Bill of Rights Act, affected members of the public also have 15 days from the issuance of the finalized Order to seek leave to appeal the Order if they are dissatisfied with the Order legally, factually or environmentally.
163.
The Environmental Review Tribunal (AERT@ or ABoard@) is an expert tribunal which
-66stands in the shoes of the Director. Upon appeal by the Orderee or members of the public, the ERT holds a new hearing in which it has jurisdiction to examine every issue of fact and law which the Director was capable of examining. The Board=s decision can completely replace the decision of Director, in whole or in part. The Board holds a formal, statutory hearing in which any interested persons may be made parties. The parties are represented by lawyers, can present factual and expert evidence and can make full legal argument. The Board has its own rules of procedure and operates in accordance with the Statutory Powers Procedure Act.
164.
The Board recruits its members from a variety of scientific and environmental disciplines.
This allows the Board to provide a high level of expert adjudication on the extent of environmental cleanup necessary to prevent adverse effects.
165.
Any party may appeal the Board=s decision to the Divisional Court on a question of law
and to the Minister on a question of fact or policy.

166.
In fact, both Inco and a group of Rodney Street residents represented by Gillespie have
availed themselves of their statutory rights of appeal in connection with the March 2002 Final Order. The appeals put in issue every aspect of the Order, including timing, cleanup level, and scope of the order.
Nieweglowski Affidavit, para. 51 and Exhibit@A@ and AB@
-67D. CONCLUSIONS (1) Individual issues vastly outweigh common issues. 167. A class action would require an extremely lengthy, individualized, property-by-property and
person-by-person inquiry into historic facts for the purposes of determining not just causation and effect (as set out so comprehensively in the Inco factum) but also for the purposes of determining regulatory liability of the MOE. This will be impractical or impossible in light of the finite historic soil contamination records which exist. Moreover, such an inquiry serves no useful purpose in light of the solution offered by the CBRA and regulatory processes detailed above.
Inco=s Factum, see heading AExpert Evidence - the Individualized Process Required to Determine Causation and other Factual Elements of the Claims@ McLaughlin Affidavit, para. 77
168.
A class action will also require an equally lengthy, individualized, property-by-property
and person-by-person inquiry into current facts for a determination of future Adamages@ which might be sustained by each Class member. Again, such an approach would merely duplicate the CBRA and other regulatory processes currently in play.
169.
A class action will inevitably force the parties and the court to devote a significant
amount of their resources to property and person-specific investigations. This does not offer a practical alternative process to the CBRA and Order processes which have been described above.
(2)Class Action is Not the Preferred Alternative To Current Activities of the Regulators and Inco, Combined with Individual Lawsuits if Necessary
-68170. Contrary to the evidence of the plaintiff=s affiant, Richard Lindgren (para. 122 of the
plaintiff=s factum), it is the view of David McLaughlin, the MOE=s environmental toxicology scientist with more than 25 years experience examining Refinery impacts in Port Colborne, that a Class action is not a preferable alternative for addressing the problems and concerns in Port Colborne. McLaughlin=s evidence, and the Crown=s submissions in connection with them, are as follows: 1. There are a large number of potential claimants (20,000 or more), hypothetically. However, it is submitted that all expert evidence to date suggests only a handful of properties in Port Colborne, in fact, will require remediation to eliminate any risk to health. (Only 25 out of 300 properties in the most heavily contaminated portion of Port Colborne, the Rodney Street community, will require cleanup.) The claims of proposed class members do not arise out of the same or similar facts, but rather out of very different facts. Whether any given resident will require remediation at their property, the type of remediation required, and the type and extent of any damages suffered will require a detailed property by property and person by person assessment. This can more effectively be done under the CBRA process. For reasons more completely detailed above, the issues of liability raised by the action concerning alleged negligence and negligent misstatement by the Crown will necessarily require a very individualized assessment of facts in relation to each alleged proposed Class member. These issues of liability therefore are not common to all potential plaintiffs. Instead, they are highly individualized. If the vast majority of Class members have damage claims that are modest, as alleged by Mr. Lindgren, those claims could be better addressed under a voluntary and cost-free (to the class members) CBRA and Order processes, which guarantees the appropiate remediation of their property, rather than through lengthy discovery processes in the litigation setting. Whatever damage claims any proposed Class members have, these could be addressed through the CBRA and Order processes. It is submitted that although the regulated processes currently do not provide for financial compensation, it is also true that no credible studies conducted to date have demonstrated any damage exists which requires compensation. (All health studies to date have concluded there are no health impacts. No credible real estate evidence has been offered by the plaintiff.) After the CBRA and Order processes are fulfilled, all future risk of
2.
3.
4.
5.
-69health impacts will have been eliminated. There is a reasonable prospect, based on the evidence of Inco=s real estate expert, that community-wide remediation under the CBRA will eliminate property value impacts, if any. If the CBRA and Order processes reveal there have been uncompensated past health impacts or may be future property value impacts, the CBRA process can be modified to include compensation. Alternatively, the few individuals affected can commence legal proceedings. 6. Accepting that actions of this nature frequently require the expenditure of large amounts of time and money on expert witness fees, disbursements, and legal fees, what Mr. Lindgren ignores is that proposed Class members can already participate fully in the CBRA process on a no-cost basis. The Public Liaison Committee, which represents the public in the CBRA process, has its own independent expert fully paid for by Inco. No lawyers are required for the CBRA process, but neither are they excluded from representing the interests of any particular property owners who feel their interests are not being fully represented by the PLC and its experts. Given the complexity of the environmental issues requiring a determination, this situation is particularly well-suited to the multi-level, consultative CBRA process involving participation of experts and peer reviewers. The CBRA process allows all stakeholders to participate in creating a consensual solution for the community. The litigation process does not support this initiative, but rather isolates and makes adversarial the parties and their experts. Accepting there are potentially hundreds, if not thousands of individual claims, and further accepting that should these come before the Court as individual actions, the burden on the court system would be immense, the Crown parts company with Mr. Lindgren in that we do not share his belief that a class action will avoid the necessity of each individual claim being heard, even to establish liability. Contrary to Mr. Lindgren=s suggestion in paragraph 12 (j), substantial documentary production will be required from each member of the proposed Class for this matter to proceed as a class action. The Crown strongly disagrees with Mr. Lindgren=s suggestion in paragraphs 12 (k) and (l) of his affidavit, that this court action has somehow prompted increased study and analysis by any of the defendants. The MOE and RNPHD had already undertaken human health risk assessments in 1997 and 2000. Inco had already commenced the CBRA process with full participation of the City, the RHPHD and the MOE long before this action was launched. In fact, all of the environmental studies conducted to date and all of the environmental initiatives currently underway in Port Colborne were started before the class action was launched in March 2001. It was as a result of the MOE=s normal operating and investigative
7.
8.
9.
10.
-70procedures, on which the CBRA is based, not any legal proceeding, that unexpectedly high levels of soil contamination were discovered in 2000 in the Rodney Street community by the MOE. It was as a result of this discovery, and not any legal proceeding, that the MOE initiated and completed a six month study leading up to the publication of the March 2001 HHRA, and proposed the March 2001 Director=s Order which culminated in the final March 2002 report and Order. This legal action has been largely responsive to, and parasitic upon, the extensive work already done by public authorities to safeguard the interests of this community. 11. This action, and the conduct of plaintiff=s counsel promoting it, have done nothing to advance the environmental well-being or interests of the residents of Port Colborne. Instead, there has emanated from the plaintiff, through his counsel, a series of misleading and alarmist press releases, not founded on scientific fact or medical evidence, which have needlessly alarmed the community of Port Colborne and have probably had a more profound negative impact on property values in the City than the presence of soil contamination could have had. The plaintiff, through his legal counsel, has variously threatened to close private and public schools without scientific justification, has warned residents that they will suffer severe health ailments as a result of soil nickel levels without scientific basis, has opposed Inco=s voluntary remediation efforts, and has repeatedly misapplied the MOE=s guidelines to suggest that an exceedence of Table A generic health-based value of 310 ppm nickel in soil means there has been damage to the community despite express MOE advice to the contrary. Indeed, the latest affidavit materials filed by the plaintiff on this motion are a case in point. This litigation is not required to modify the behaviour of any defendant. From the beginning, the regulators have been actively engaged in assessing and safeguarding the health interests of the public and the natural environment in the vicinity of Port Colborne. Inco has voluntarily advanced the CBRA process, which will address not only health and ecological effects but also property value impacts. Inco has made a public commitment to complete that process. The MOE has ordered Inco to take the necessary steps to immediately alleviate currently known potential health effects to the community.
12.
-71E. RESPONSE TO PLAINTIFF=S FACTS 171. The Crown does not accept the facts as set out in the plaintiff=s factum. The Crown
agrees with Inco that, in the main, the plaintiff=s Afacts@ provide more of an unreliable account of the Amerits@ of the allegations of hazard than they do a basis for the questions of process germane to the test for certification. The plaintiff=s recitation of facts is derived almost entirely from two affidavits: one from Wolfgang Kaufmann, of counsel for the plaintiff, and the other from the plaintiff himself. For the most part, both affidavits simply repeat the allegations of material facts contained in the Statement of Claim. As a result, Kaufmann deposes to extensive historical facts without any indication of having conducted a review of the Crown=s or Inco=s historical records and deposes to innumerable expert scientific conclusions, although he admitted on cross-examination that he has no scientific expertise. Similarly for the plaintiff.
172.
Without in any way attempting to be exhaustive in its review of the alleged Afacts@ in the
plaintiff=s factum, the Crown would add the following observations to those made by Inco in its factum.
173.
At paragraph 41 the plaintiff=s factum states that the Aongoing discharge of contaminants
(including known human carcinogens) and other activities at the Inco Refinery, and the failure of the defendants to take proper or appropriate steps to prevent or minimize the effects of these contaminants and activities, has resulted in (but is not limited to)@ a long list of specific health Ainjuries to the physical health and well being of the residents of Port Colborne@, citing the plaintiff=s risk assessor as the source. The Statement of Claim is cited as a Asee also@ source.
-72Actual causation of physical and health damage is therefore asserted as a fact. However, a careful review of the evidence of the plaintiff=s risk assessor, as exhaustively explored in Inco=s factum, shows he is extremely careful to avoid coming to any such conclusion. No such evidence exists.
174.
Similarly, at paragraph 42 of the plaintiff=s factum the plaintiff=s risk assessor is
wrongly cited as the source of the fact that Aparents, grandparents, children, grandchildren, siblings and spouses of the Port Colborne residents have suffered damages recognized pursuant to section 61 of the Family Law Act@. No such evidence exists.
175.
Paragraphs 88, 89 and 94 of the plaintiff=s factum wrongly cite Allen Baldwin=s
affidavit as the source of the claim that the purpose of MOE inspections, approvals and investigations was Ato protect the property and health of local residents@, presumably to suggest a broad private law duty of care in respect of MOE activities. In fact, his affidavit made no such statement. Instead, it made the surprisingly prescient statement that their purpose was Ato protect the property and health of members of the proposed class (AClass Members@)@ - even though most of the MOE activities occurred 10 to 30 years before the Class had been defined! On cross-examination, Baldwin admitted he did not intend to say this, and clarified that the MOE=s investigations and inspections had the much more limited purpose of Ahelping the specific people who were being affected by Inco@ and the Amembers of the public who had expressed concern or a complaint about being affected by Inco@ - a position entirely consistent with the evidence of Crown witness Dave McLaughlin. The plaintiff=s factum ignores the actual
-73evidence.
Cross-examination of Allen Baldwin, Q. 147, 148 and 151
176.
At paragraph 102, the plaintiff=s factum falsely credits the affidavit of James Smith as
the source of the factual allegation that the March 2001HHRA and October 2001 HHRA were Awithdrawn@, the first because of errors in it, and the second because of EBR comments received, implying that the first two reports were so seriously defective they needed to be withdrawn. Plaintiff=s factum continues with this innuendo, charging further that the third report as well (the March 2002 HHRA) Ahas also been the subject of the same types of controversy as its predecessors@, citing the Smith affidavit again. In fact, no such statements are made by Smith. Regarding the March 2001 HHRA, Smith=s affidavit explains Ait was believed that the [calculation] error could result in a change to the report=s recommendations pertaining to nickel but not the other metals and arsenic in soil. As a result, the MOE undertook steps to reassess the March 2001 HHRA.@ Regarding the October 2001 HHRA, Smith says it was finalized after consideration of public comments received and expert peer review. According to Smith, neither report was withdrawn and there is no mention of controversy regarding either. Even the Executive Summary of the March 2002 HHRA, the particular Exhibit of the Smith affidavit which is cited, makes no mention of either report being Awithdrawn@ or Acontroversial@. It simply notes that the March 2002 HHRA Asupercedes@ its predecessors. What makes these unfounded allegations all the more surprising is that, at least in connection with the March 2001 HHRA, plaintiff=s counsel was expressly chastised by the Crown in a May 11, 2001 letter, for publicly making the same unfounded allegations in a press release.
-74James Smith Affidavit, paras. 33 and 44, and Exhibit F Affidavit of Joseph Starkman, Responding Motion Record of Inco, Indoor Sampling Motion (AStarkman Affidavit@), Tabs 6 and 5
177.
At paragraph 103, plaintiff=s factum moves from falsehood to fantasy, suggesting
without factual foundation that the AHMQ continues to advise that each report is correct until the next report is released@. While charitably conceding that Ait is clearly not the role of the court to adjudicate on the merits (or lack of merits) of each of these studies@, the plaintiff does not demure from casting bald innuendo about the Athe quality and conclusions flowing from each of these MOE reports@. None of these suggestions or innuendo are supported in the evidence. Smith=s affidavit, to the contrary, extolls the excellence of the three reports, the rigour of the international peer review process which underlies them, and the inclusiveness of the public consultation provided in connection with their development. Even the supplementary affidavit of the plaintiff=s risk assessor, cited as one of the sources, goes no further than to contain a letter from the expert to plaintiff=s counsel in which he advises AI still have concerns regarding certain aspects of [the October 2001] report@. Hardly a basis for the suggestions made here.
Supplementary Affidavit of Dr. Mark Richardson, Plaintiff=s Supplementary Motion Record, Tab 2A (ARichardson Supplementary Affidavit@), p.25
PART III - THE LAW AND ARGUMENT Requirements for Certification 178. The requirements for certification are set out in s. 5 of the Class Proceedings Act, 1992,
S.O. 1992, c.6. This section provides that : The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,
-75(a) (b) the pleadings or the notice of application discloses a cause of action; there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant; the claims or defences of the class members raise common issues; a class proceeding would be the preferable procedure for the resolution of the common issues; and there is a representative plaintiff or defendant who, (i) (ii) would fairly and adequately represent the interests of the class, has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
(c) (d)
(e)
(1)
179.
Section 6 of the Class Proceedings Act provides that : The court shall not refuse to certify a proceeding as a class proceeding solely on any of the following grounds: 1. The relief claimed includes a claim for damages that would require individual assessment after determination of the common issues. The relief claimed relates to separate contracts involving different class members. Different remedies are sought for different class members. The number of class members or the identity of each class member is not known. The class includes a subclass whose members have claims or defences that raise common issues not shared by all class members.
2.
3. 4.
5.
Class Proceedings Act, 1992, S.O. 1992, c.6, Plaintiff=s Factum, Tab B
-76-
180.
The question at the certification stage is a procedural question: whether the suit is
appropriately prosecuted as a class action.

Hollick v. City of Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.), at para. 16, Plaintiff=s Authorities, Tab 2
S.5(A) 181.
REASONABLE CAUSE OF ACTION
The test by which the sufficiency in law of a set of pleadings is to be determined is that it
is plain and obvious= that the pleadings fail to establish a cause of action.
Hunt v. Carey Canada Inc. (1990), 74 D.L.R. (4th) 321 (S.C.C.) at 336, at 9 (QL), Crown=s Authorities, Tab 1 Nash v. Ontario (1995), 27 O.R. (3d) (C.A.) at 4 (QL), Crown=s Authorities, Tab 2
182.
It is submitted that, despite the Crown=s success on its motion to strike, and despite the
plaintiff=s issuance of a Fresh as Amended Statement of Claim, this Statement of Claim continues to fail to disclose a reasonable cause of action in so far as its allegations concerning Afailure to enforce the EPA@ are concerned.
183.
As noted above, regardless of whether the mode of enforcement is prosecution or orders,
enforcement under the EPA is an entirely discretionary matter.
184.
It is fundamental principle of law that Athe Crown is at liberty to prosecute only
those person it sees fit to prosecute@. The Crown=s prosecutorial discretion in this regard cannot be challenged.
R. v. McGlone (1998) 28 C.E.L.R. (N.S.) 317 at 326, Crown Authorities, Tab 3
-773 185. There is no cause of action for negligent prosecution by the Crown, only malicious
prosecution.
Munro v.The Queen in Right of Canada, (1993) 16 O.R. (3d) 564 (Div. Ct.) at 566, Crown=s Authorities, Tab 4
186.
As well, if malice can be proved, the failure to prosecute may be alleged as a cause
giving rise to the subsequent damage.

Paquette v. Desrochers (2000) 52 O.R. (3d) 742 (S.C.O.), para. 16; rev=d on other grounds (2001) 151 O.A.C. 341 (O.C.A.), Crown=s Authorities, Tab 5
187.
In the present case there is no allegation of malicious failure to prosecute. There is no
allegation of malice or bad faith whatsoever. The only allegation is of Anegligent failure to enforce@, a category of claim from which the Crown is immune. It is submitted that it is plain and obvious that this allegation fails to disclose a reasonable cause of action in terms of failure to enforce through prosecution.
188.
With regard to enforcing the EPA through administrative orders, all the order provisions
of the EPA are entirely discretionary. The law is clear that if the decision to enforce a statute is discretionary and, therefore, involves decisions at the policy stage, a public official cannot be responsible for an error in judgment so long as he or she did not act irresponsibly or so carelessly or unreasonably that there has been no real exercise of discretion at all.
Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 (S.C.C.), para. 53, Crown=s Authorities, Tab 6
189.
In the present case, there is no allegation even coming close to the allegation that a
-78Director of the MOE acted so irresponsibly, carelessly or unreasonably in the exercise of an order discretion that there was no real exercise of discretion at all.
190.
For these reasons, it is respectfully submitted that it is plain and obvious that the
Statement of Claim continues to fail to disclose a reasonable cause of action for Afailure to enforce the EPA@. This aspect of the claim, it is submitted, cannot be certified.
S.5(B) 191.
IDENTIFIABLE CLASS
The purpose of the class definition is three fold: (1) it identifies those persons who have a potential claim for relief against the defendant; it defines the parameters of the lawsuit so as to identify those persons who are bound by its result; and it describes the individuals who are entitled to notice pursuant to the Act.
Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 (Gen. Div.), Crown=s Authorities, Tab 7, at para. 10
(2)
(3)
192.
It is for the mutual benefit of the plaintiff and the defendant that the class definition not
be unduly narrow or unduly broad.

Ibid.
(1) No Rational Relationship 193. Implicit in the Aidentifiable class@ requirement is the requirement that there be some
rational relationship between the class and common issues.
-79Hollick, Plaintiff=s Authorities, Tab 2, para. 19 Western Canadian Shopping Centres Inc. v. Dutton (ADutton@), [2001] 2 S.C.R. 534 (S.C.C.), Crown=s Authorities, Tab 8, at para. 38
194.
As noted by the Supreme Court: It is essential, therefore, that the class be defined clearly at the outset of the litigation. The definition should state objective criteria by which members of the class can be identified. While the criteria should bear a rational relationship to the common issues asserted by all class members, the criteria should not depend on the outcome of the litigation. ... It is necessary, however, that any particular person=s claim to membership in the class be determinable by stated, objective criteria.
Dutton, Crown=s Authorities, Tab 8, at para. 38
195.
It is submitted that, even accepting the Acommon issues@ proposed by the plaintiff are
indeed common issues, there is no rational relationship between the proposed Class in this case and those common issues.
196.
All of the plaintiff=s proposed common issues have to do with either how the Refinery
was operated by Inco, or regulated by the Crown and others, or how the conduct of the defendants impacted proposed Class members. Therefore, it is incumbent upon the plaintiff to demonstrate some rational connection between the proposed Class and the common issues.
197.
However, the geographic area which the plaintiff has selected as bounding the proposed
-80class is entirely arbitrary. It is not based upon plume mapping of actual contamination, actual complaints of impacts, or health studies demonstrating actual or potential impacts. As a result, there is no demonstrated rational relationship between the proposed Class members in this case and any common issues.
198.
In addition, the plaintiff=s proposed cut-off date of March 26, 1995 in the class
definition is entirely arbitrary and unexplained. This facility operated for over eighty years, but for some unarticulated reason the plaintiff has chosen to include in the Class only those persons owning or occupying a property within the geographic boundaries since the 1995 date.
(2) Class is Overly Broad 199. The onus is also on the putative representative to show that the class is defined
sufficiently narrowly.
Hollick, Plaintiff=s Authorities, Tab 2, para. 20
200.
However, the plaintiff has failed to do so in this case. It is submitted that on its face, the
proposed class definition in this case is overly broad because it extends substantially beyond any documented plume of contamination from the Refinery. Moreover, to the extent it does include areas within the documented plume area, it includes areas which have been impacted so insignificantly that any risk of future health or other impacts is de minimis to nil. In this regard, the plaintiff=s use of the MOE=s Guidelines for Use at Contaminated Sites, Table A and F, to estimate varying levels of damage, has been shown to be entirely without foundation. What is
-81more, the plaintiff has not offered a shred of evidence that all or even most members of the proposed class probably have suffered or will suffer health, property or even ecological (plant) damage. In fact, the only evidence is to the contrary.
201.
In addition, the proposed class definition is overly broad because there is no credible
evidence of any kind that any of the MOE reports or alleged media reports which allegedly contain negligent misstatements were circulated to the geographically expansive area in question.
S.5(C) 202.
COMMON ISSUES
The question of commonality of issues lies at the heart of a class proceeding because the
intent of a class proceeding is to allow issues to be determined for the entire class based on a determination of the issues with respect to the proposed representative plaintiff.
Campbell v. Flexwatt Corp., [1997] B.C.J. No. 2477 (B.C.C.A.); leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 13
203.
The common issues question must be approached purposively. The underlying question
is whether allowing the suit to proceed as a representative one will avoid duplication of factfinding or legal analysis.
Dutton, Crown=s Authorities, Tab 8, para. 39
(1) Conflict Among Class Members 204. With regard to the common issues, success for one class member must mean success for
all. All members of the class must benefit from the successful prosecution of the action,
-82although not necessarily to the same extent. A class action should not be allowed if class members have conflicting interests.
Dutton, Crown=s Authorities, Tab 8, para. 40
205.
It is submitted that in the current case, there is good reason to conclude that class
members have conflicting interest.
206.
The plaintiff=s interests conflict with those of other Class members. He advances on
behalf of all class members a claim for damages seeking compensation for injury to physical health and well being, loss of use and enjoyment of property and loss of value of property. However, on the evidence, the state-of-the-art scientific studies conducted by the MOE to date have concluded that his property has such low levels of contamination as to not require remediation from a health perspective. As a result, no cleanup of his property has been ordered by the Director.
Pearson Cross-Examination, Q. 125-128
207.
Although it goes without saying that the conclusions of the MOE=s March 2002 HHRA
are open to expert dispute, and in fact are being disputed by the experts before the expert Environmental Review Tribunal, until the ERT has adjudicated the cleanup number for the Rodney Street community it remains a distinct possibility, and perhaps a probability, that the plaintiff=s property will never require an environmental cleanup. Should that fact be borne out by the ERT hearing, the CBRA process, and any further individualized assessment of the plaintiff=s health and property, he will be in a very different position from every member of the
-83Class whose levels of nickel contamination exceed the cleanup number. If the adjudication of his claims are dismissed in a class action, it will be to the detriment of all Class members who are differently situated.
208.
Equally, the interests of the Rodney Street community residents conflict with those of
the majority of residents of Port Colborne. The former, who have personally retained plaintiff=s counsel, suffer from much higher levels of contamination than the rest of Port Colborne. A vocal community group, ANeighbours Helping Neighbours@, was founded by Angie Desmarais, a resident of the Rodney Street community. The Rodney Street residents have been frustrated by their inability to take over the PLC. Moreover, as evidenced by the affidavits of Ellen Smith (a resident of the Rodney Street community and member of the ANeighbours@ group) and of Paul Nieweglowski, the MOE District Manager, the Rodney Street residents have been extremely active, vocal participants in PLC meetings to the point of openly criticizing the PLC and CBRA processes undertaken for the benefit of the greater Port Colborne community and other residents Port Colborne who do not happen to agree with them.
Nieweglowski Affidavit, Crown=s Further Supplemental Record, Tab 1, para. 21 Ellen Smith Affidavit, Plaintiff=s Supplementary Record, Tab 6
209.
It is submitted that although these criticisms have been demonstrably shown to be false
by the responding evidence of the Crown, the City and PLC member Paul Dayboll, the mere fact that they have been made with such vehemence underscores an obvious conflict of interests between residents of the Rodney Street community and the remainder of the proposed Class.
Ellen Smith Affidavit, Plaintiff=s Supplementary Record, Tab 6 Nieweglowski Affidavit, Crown=s Further Supplemental Record, Tab 1
-84Affidavit of Charles Miller, sworn April 18, 2002 (AMiller Affidavit@), City=s Record, Tab 2 Affidavit of Paul Dayboll, sworn April 18, 2002 (ADayboll Affidavit@), City=s Record, Tab 1
210.
That this conflict is very real, is illuminated by the events surrounding the creation of
Paul Dayboll=s affidavit. When Dayboll, a voting member of the PLC, read Ellen Smith=s affidavit, he was so concerned about the inaccuracies in it and in so much in disagreement with her criticisms, he felt it necessary to swear his own affidavit in these proceedings. Dayboll approached plaintiff=s counsel, Gillespie, and asked him to assist in preparing an affidavit, but Gillespie refused. Gillespie indicated that Dayboll Awas too late@. He told Dayboll that he Ashould have been either on side or working with them six months ago@.
Dayboll Cross-Examination, Q. 10-11
211.
It is submitted that the refusal of plaintiff=s counsel to assist another member of the
Class to present his obviously conflicting evidence to the Court, simply because the Class member was not Aon side@, underscores the very serious conflict which currently exists among Class members.
212.
It further calls into questions the ability of the proposed class representative to represent
the Class, a legal submission which will be addressed under the relevant heading, below.
(2) Alleged Common Issues Are Overbroad (Are In Fact Individual Issues) and Are Not a Substantial Ingredient of Each Class Members Claim
-85213. A court should avoid framing commonality between class members in overly broad
terms. It would not serve the ends of either fairness or efficiency to certify an action on the basis of issues that are common only when stated in the most general terms. Inevitably, such an action would ultimately break down into individual proceedings. That the suit had initially been certified as a class action could only make the proceeding less fair and less efficient.
Rumley v. British Columbia (2001), 205 D.L.R. (4th) 39 (S.C.C.) Rumley, Plaintiff=s Authorities, Tab 3, at para. 29
214.
An issue will be common only where its resolution is necessary to the resolution of each
class member=s claim. Further, an issue will not be common in the requisite sense unless the issue is a substantial ingredient of each of the class members= claims. Thus, the class members= claims must share a substantial common ingredient to justify a class action.
Hollick, Plaintiff=s Authorities, Tab 2, at para. 18 Dutton, Crown=s Authorities, Tab 8, at para. 39
215.
It is submitted that the plaintiff has framed his common issues in overly broad terms.
Once those alleged common issues are examined purposively, to determine what a court will be required to do as a matter of process to answer them, it becomes clear that they devolve into a host a individual issues and individual proceedings.
216.
It is further submitted that because the alleged common issues devolve into so many
individual ones, the resolution of the few remaining truly common issues will not be a substantial ingredient of each class members= claims.
-86217. The above two submissions are explored in greater detail below. To begin, however, it
is important to consider the precise common issues that are alleged as against the Crown.
(i) Alleged Common Issues As Against the Crown 218. The alleged common issues as against the Crown are set out in the plaintiff=s factum as
follows: 1. The nature, extent, usefulness and comprehensiveness of these inspections [of the Refinery] is a common issue for trial. [para. 87] Whether these certificates were properly issued, or provide any defence to Inco, are common issues for trial. [para. 89] Whether HMQ owed a duty of care to the class ..., what the standard of care was, and whether HMQ took sufficient care in performing its duties to meet that standard [breach] are all common issues. [para.98] In relation to allegations of negligent misrepresentation: (1) The question of "what HMQ knew and when it knew it" (including what care it took and what inquiries it made) can also be resolved at a common issues trial without the involvement of class members. [para.99] Whether these statements were misrepresentations is a common issue that can be resolved without the involvement of the class. [paras. 100 and 101]
2. 3.
4.
(2)
5.
Did the Regulators owe a duty of care to the class to prevent the ongoing discharge of the Contaminants of Concern by Inco, and if so, what duty was owed? [para. 152 and Schedule C of Plaintiff=s Factum] What was the appropriate standard of care that Regulators had to meet with respect to preventing the ongoing discharge of the Contaminants of Concern? [Schedule C of Plaintiff=s Factum] Did the Regulators breach the standard of care referred to in (ii) above? [Schedule C of Plaintiff=s Factum]
6.
7.
-878. Did the Regulators make negligent misrepresentations with respect to: (a) the emissions from the Inco Refinery have never posed any risk to human health; and (b) the class members were being exposed to nickel or other non-carcinogenic substances and not the carcinogen nickel oxide? [Schedule C of Plaintiff=s Factum] Does the defendants= conduct justify an award of punitive damages to the class, and if so, what amount of punitive damages is appropriate? [Schedule C of Plaintiff=s Factum]
Plaintiff=s Factum, paras. nos. as noted above, and Schedule C of Plaintiff=s Factum
9.
(ii) Inspections 219. Turning to the first of these, it is submitted that the Anature, extent, usefulness and
comprehensiveness@ of inspections of the Refinery cannot be a common issue at all, as submitted by the plaintiff.. This alleged common issue is nothing more than a restatement of the allegation of negligence contained in paras. 45(a) and (e) of the Statement of Claim.
220.
For all the reasons noted under the heading AInspections and abatement at the
Refinery@, in the Facts above, as a matter of process for this Court to answer the question of whether MOE inspections and abatement were adequate, will inevitably require an individualized inquiry into whether those inspections and abatement failed to protect any given class member.
221.
Even if the MOE somehow Acaused@ an additional 3% of nickel to be discharged from
Inco, and putting aside the fact that this discharge was in total compliance with the legislation
-88and all statutory instruments, the effect of the discharge over 14 years will be highly individualized, since all of the historic sampling done by the MOE to date shows the distribution of nickel across Port Colborne is highly uneven. Some class members will have experienced an increase in nickel levels while others will have experienced none.
222.
The individualized nature of this issue is reinforced by the fact that only Adozens@ of
complaints were made to the MOE over a 25 year period. This is in stark contrast to the situation in Hollick, where the court found the requirement of commonality had been met by evidence of over 1000 complaints submitted by residents to the MOE and to Toronto, the landfill site owner.
Hollick, Plaintiff=s Authorities, Tab 2, at para. 26
223.
Second, as essentially admitted by the plaintiff=s factum, this alleged common issue is
not simply Awhat inspections and abatement did the MOE do?@, considered in a vacuum. (It is conceded that this simple question would raise a common issue, although not one of any real significance to the resolution of any given class member=s claim.) The correct question, as the plaintiff=s factum points out, is whether the MOE=s inspection and abatement activities were Auseful@ or sufficiently Acomprehensive@, to use the plaintiff=s terminology. This begs the questions of Auseful to whom@ and Asufficiently comprehensive to accomplish what objective@? Presumably, Auseful to each class member@ and Asufficiently comprehensive to prevent injury to each class member@. Put in legal terms, the issue ultimately devolves into a consideration of duty of care, proximity and foreseeability, as well as standard of care, breach
-89and causation with respect to each class member. The issue of Anegligent inspections@ is inherently individualized.
Plaintiff=s Factum, para. 87
224.
In light of this, and given there is not a shred of evidence before this Court that the MOE
violated even a public duty of care under any statute, let alone a private duty (all inspection and abatement activities, on Baldwin=s evidence, were successful), one may question how the plaintiff has met the evidentiary burden of establishing that this alleged common issue of Anegligent inspections@ is, in fact, a common issue which could be a substantial ingredient of each of the class members= claim, as required by Hollick and Dutton. It is submitted he has not.
225.
Before the MOE=s conduct on inspections and abatement can become an Aingredient@,
substantial or otherwise, of any given class members= claim, that class member will have to establish through an individualized proceeding that, as a result of the MOE=s conduct: 1. 2. 3. the levels of nickel on their properties increased between 1970 and 1984, the extent to which it increased (before and after numbers), what portion of that increase remains on their property today, some 20 years later, and 4.
3
the increase is scientifically or medically significant.3
On this last point, the challenges faced by any class member will likely be insurmountable. The only evidence currently available is that Inco=s emissions represent an unacceptable risk to toddlers who might live at twenty-five properties in all of Port Colborne. Epidemiological studies to date show that no one has actually suffered any health impacts from nickel levels in PC. There is not the slightest suggestion in the evidence that a mere 3% of the
-90Thus, the resolution of the Ainspection and abatement@ question for the representative plaintiff in such an individualized proceeding cannot possibly be a substantial ingredient of each class members claim. Its resolution will be largely irrelevant, rather than Anecessary to the resolution of each class member=s claim@.
(iii) Certificates of Approval 226. Precisely the same submissions may be made with respect to the issue of whether
certificates of approval were Aproperly issued@ by the MOE to Inco. These were part of the same abatement activities from 1970 onward as described above. AProperly issued@ connotes Aproperly issued to prevent injury to each class member@, in short, duty of care, proximity, foreseeability, standard of care, breach and causation.
227.
Moreover, from a statutory perspective, whether any given approval and conditions of
approval failed to achieve its statutory purpose - Ato prevent or alleviate an adverse effect@ - is only something which can be determined by examining the particular alleged adverse effects of each class member.
highest known levels of soil nickel contamination (3% of 17,000 ppm, or 510 ppm) could have any impact on anyone.
-91Environmental Protection Act, R.S.O. 1990, C. E-19, section 9(4)
228.
For this reason, and the reasons already provided under the heading ACertificates of
Approval@ in the Facts above, an examination of the Aapprovals@ issue will necessarily require the plaintiff to adduce individualized evidence of adverse effects on specific property owners in order to establish even a duty of care or breach of that duty. Consequently, an individualized determination of not only causation and damages, but also liability, will have to be undertaken by the Court in respect of each class member. Thus, as with inspections, the resolution of this issue for the representative plaintiff will not advance, or even be necessary to, each class member=s claim and so the substantial ingredient requirement is not satisfied yet again.
229.
The remainder of the plaintiff=s Acommon issues@ are simply broad allegations of the
torts of negligence or negligent misstatement, or elements of them. To these we now turn.
(iv) Duty of Care with respect to Negligence 230. In order to succeed in an action in negligence, a plaintiff must establish three elements: (1) (2) the defendant owed the plaintiff a duty of care; the defendant breached the duty by engaging in conduct that fell below the requisite standard of care; and (3) the breach resulted in damage to the plaintiff.
Nespolon v. Alford et al., (1998) 161 D.L.R. (4th) 646 (Ont.C.A.), Crown=s Authorities, Tab 9, at para.40; leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 452
231.
The plaintiff frames the duty of care with respect to negligence as a common issue, in
-92the following terms: ADid the Regulators owe a duty of care to the class to prevent the ongoing discharge of the Contaminants of Concern by Inco, and if so, what duty was owed?@
Plaintiff=s Factum, para. 152, and Schedule C - issue C(i)
232.
Framed in such broad terms, this issue subsumes most of the specific allegations of
negligence contained in paragraph 45 of the Statement of Claim, including: 1. 2. 3. 4. 5. Failure to study Refinery impacts accurately, completely or fast enough - para. 45(g); Failure to properly inspect or abate problems with the Refinery - para. 45 (a), (e); Failure to properly issue approvals for the Refinery - para. 45(b); Failure to respond to complaints of Class members - para. 45(f); Failure to enforce the EPA - para. 45(h).
The only negligence allegation which may not be included in this Asuper-issue@ is Afailure to warn Class members about hazardous emissions from the Refinery - para. 45(c), (d)@.4
233.
It is submitted that this alleged common issue is overly broad, and is not a substantial
The plaintiff=s frames this issue in terms of a duty of care to Aprevent the ongoing discharge of Contaminants of Concern@. Since a warning would not prevent discharge, but at most would at best allow class members to take steps to avoid it, the plaintiff=s issue does not appear to include the duty to warn.
-93ingredient to each class member=s claim.
234.
For all the reasons noted above in the legal submissions on AInspections and abatement
at the Refinery@, and in the Facts dealing with each allegations of Crown negligence, as a matter of process for this Court to answer the question of whether MOE owed a duty of care to any given class member to prevent the ongoing discharge of the Contaminants of Concern, will inevitably require an individualized inquiry into whether the actual MOE activities undertaken from 1970 onward (ie. the inspections, abatement, investigations, issuing approvals, responding to complaints or enforcing the EPA) failed to protect any given class member.
235.
Moreover, as explained earlier, before the MOE=s activities undertaken from 1970
onward even become relevant to any given class members= claim, that class member will have to establish through an individualized proceeding that, as a result of those MOE activities: 1. 2. 3. the levels of nickel on their properties increased between 1970 and 1984, the extent to which it increased (before and after numbers), what portion of that increase remains on their property today, some 20 years later, and 4. the increase is scientifically or medically significant.5
Thus, the resolution of these questions for the representative plaintiff in such an individualized proceeding cannot possibly be a substantial ingredient of each class members claim. Their resolution will be largely irrelevant, rather than Anecessary to the resolution of each class
-94member=s claim@.
236.
That the plaintiff=s question is overly broad and must necessarily devolve into these
more specific questions about particular MOE activities, and that it=s answer will not constitute a substantial ingredient of each class members claim, is reinforced by a consideration of how one proves a duty of care according to the case law.
237.
In order to prove in respect of public regulators that a private law duty of care arises in a
particular situation, the question is to be approached in two stages: First, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage, there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter B in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which out to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise.
5
Same point as footnote 3, supra.
-95Anns v. Merton London Burrough Council [1978] A.C. 729, Crown=s Authorities, Tab 10, at 751 and 752 Cooper, Crown=s Authorities, Tab 6, at para. 30
238.
At the first stage, the question is whether the circumstances disclose reasonably
foreseeable harm and proximity sufficient to establish a prima facie duty of care. Thus, mere foreseeability is not enough. The representative plaintiff will also have to demonstrate that the MOE was in such a close and direct relationship with the members of the proposed class that the MOE should have known that the members of the proposed class would be directly affected by any carelessness on the MOE=s part.
Cooper, Crown=s Authorities, Tab 6, at para. 41-42
239.
As stated by the Supreme Court of Canada in Cooper, when dealing with a governmental
actor or decision-maker, Afactors giving rise to proximity, if they exist, must arise from the statute under which [the defendant] is appointed. That statute is the only source of his duties, private or public. Apart from that statute, he is no different position than the ordinary man or woman in the street. If a duty ... is to be found, it must be in the statute.@
Cooper, Crown=s Authorities, Tab 6, at para. 43
240.
Therefore, it is submitted that for the Court at trial to answer the plaintiff=s general duty
of care question ADid the Regulators owe a duty of care to the class to prevent the ongoing discharge of the Contaminants of Concern by Inco, and if so, what duty was owed?@, the Court will be legally bound to first look to each of the statutory provisions6 relevant to the impugned In the case of the Crown, the Environmental Protection Act, Ontario Water Resources Act, Environmental Bill of Rights and regulations thereunder.
6
-96MOE activities, to answer whether they imposed, during the relevant time period, a specific public law duty of care (or power which was operationally exercised), which could evidence a private law duty of care.
241.
What are those provisions? Without attempting to be exhaustive, a possible list has been
appended as Schedule D to this factum. What becomes clear from an examination of them, is that there are a wide range of discretionary powers available to the MOE under the legislation. Most of the powers relating to abatement or enforcement have, as their precondition, the existence of an Aadverse effect@ of some kind. The power may then be used to prevent or alleviate the effect. Given this is so, it is clear that both on the law and as a matter of practicality, for the plaintiff=s duty of care question to be answered the Court will have to approach the issue in terms of specific MOE activities pleaded in para. 45 of the Statement of Claim and the various statutory duties or powers available to the MOE which the MOE allegedly failed to exercise or exercise properly in the circumstances. The measure of whether the MOE in fact failed to carry out any statutory duty properly or failed to exercise any statutory power properly, and as a result breached a prima facie private law duty of care to any individual, will be the particular facts facing the MOE during the relevant period of time vis-a-vis each class member, compared to the correlative statutory duty or power. As the discussion in the Facts section, above, so amply demonstrates, an examination of what those duties of care consisted of, will necessarily as a matter of process require individualized analysis.
242.
Moreover, even if the plaintiff is successful in establishing a prima facie duty of care with
-97respect to specific individual class members, according to the Cooper decision the Court will have to move to the second stage of legal analysis, to determine whether there exist residual policy considerations which justify denying liability. These policy considerations are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally.
Cooper, para. 37
243.
It is conceded that the application of this second part of the test may be dealt with as a
common issue, since its focus is not the relationship between the parties but rather legislative and government-wide policy considerations which may negate the prima facie duty of care. However, given the many thousands of extensive individualized inquiries which will have to be conducted to apply the first part of the test to find prima facie duties of care, it is submitted that the value of the latter common issue in resolving each class member=s claim is negligible. It is certainly not going to be a Asubstantial ingredient@ of the class member=s claim.
(v) Introduction to Negligent Misrepresentation 244. With respect to negligent misrepresentation, Schedule C to the plaintiff=s factum poses
the common issue as follows: ADid the Regulators make negligent misrepresentations with respect to: (a) the emissions from the Inco Refinery have never posed any risk to human health; and (b) the class members were being exposed to nickel or other non-carcinogenic substances and not the carcinogen nickel oxide?@
Plaintiff=s factum, Schedule C, Question C(iv)
-98-
245.
It is submitted that by posing the question in such broad terms, it subsumes into it every
element of the tort of negligent misrepresentation, including: (1) (2) (3) there must be a duty of care based on a Aspecial relationship@ between the representor and the representee; the representation in question must be untrue, inaccurate or misleading; the representor must have acted negligently in making the representation in that the representor=s conduct must have fallen below the requisite standard of care; the representee must have reasonably relied on the negligent misrepresentation; and the reliance must have been detrimental to the representee in the sense that damages resulted.
Queen v. Cognos Inc.(ACognos@) [1993] 1 S.C.R. 87 (S.C.C.), Crown=s Authorities, Tab 11, at para. 33 Hercules Management Ltd. v. Ernst & Young (AHercules@) [1997] 2 S.C.R. 165 (S.C.C.), Crown=s Authorities, Tab 12, at para.18
(4) (5)
246.
Elsewhere in the plaintiff=s factum, the negligent misrepresentation common issues are
put much more narrowly: 1. AThe question of "what HMQ knew and when it knew it" (including what care it took and what inquiries it made) can also be resolved at a common issues trial without the involvement of class members.@ [para.99] AWhether these statements were misrepresentations is a common issue that can be resolved without the involvement of the class.@ [paras. 100 and 101]
2.
It is submitted that the plaintiff has failed to carefully analyze his own common issues and certainly has not put forward a clear vision of how they should be framed by the Court or managed through to trial.
247.
In any event, the first of the narrow characterizations above (ie. Awhat the Crown knew
-99and when the Crown knew it@) is not relevant to the tort of negligent misrepresentation. It is neither an element of the tort nor is it relevant to the Court=s determination of any element of the tort. The tort of negligent misrepresentation requires proof of a false statement, negligently made, not proof of false statement known to be false (which is fraud). The Court may recall that in consequence of the Crown=s motion for particulars in this action, the plaintiff abandoned any allegations that the Crown had fraudulently Aconcealed facts@ and had Aconsciously and knowingly@ misled the public. The Statement of Claim was amended to delete all such references. The plaintiff cannot be allowed now to bring in through the back door what he specifically agreed to exclude from this action previously.
248.
It is conceded that the second narrow characterization of the common issue (ie. Awhether
these statements were misrepresentations@) is, indeed, a common issue. It is a restatement of the second element of the tort, whether the representations were Auntrue, inaccurate or misleading@. However, the four remaining elements can only be resolved through an individualized inquiry, for the reasons set out below.
(vi) Duty of Care for Negligent Misrepresention 249. Turning first to the element of duty of care in negligent misrepresentation [the issues of
standard of care and breach, and detrimental reliance, will be canvassed under separate headings], although negligent misrepresentation is a recognized category of proximity according to Cooper, it must be remembered that proximity is merely a necessary and not a sufficient condition for establishing a prima facie duty of care. Foreseeability and reasonable reliance are two others.
-100As stated by the Supreme Court of Canada in Hercules Management Ltd. v. Ernst & Young, a case dealing expressly with the tort of negligent misrepresentation: A prima facie duty of care will arise on the part of a defendant in a negligent misrepresentation action when it can be said (a) that the defendant ought reasonably to have foreseen that the plaintiff would rely on his representation and (b) that reliance by the plaintiff, in the circumstances, would be reasonable.
Hercules, Crown=s Authorities, Tab 12, at para. 41
250.
As well, before a duty of care can be found, there is the requirement that the statements
are used for the specific purpose or transaction for which they were made. As noted in Hercules: To my mind, the presence of such factors in a given situation will mean that worries stemming from indeterminacy should not arise, since the scope of potential liability is sufficiently delimited.__In other words, in cases where the defendant knows the identity of the plaintiff (or of a class of plaintiffs) and where the defendant's statements are used for the specific purpose or transaction for which they were made, policy considerations surrounding indeterminate liability will not be of any concern since the scope of liability can readily be circumscribed.
Hercules Management, Crown=s Authorities, Tab 12, at para. 37
251.
As a result, Ontario courts have ruled that a duty of care will be found in negligent
misrepresentation if: (a) the defendant ought reasonably to have foreseen that the plaintiff would rely on his representation; that reliance by the plaintiff in the circumstances was reasonable;
(b)
-101(c) (d) the defendant knew the identity of the plaintiff or of a class of plaintiffs; the defendant=s statements were used for the specific purpose or transaction for which they were made.
Carom et al. v. Bre-X Minerals Ltd. et al. (ABre-X@) 44 O.R. (3d) 173 (Sup. Ct.) Crown=s Authorities, Tab 13, at 33; aff=d on appeal (1999) O.R. (3d) 315 (Div. Ct.); rev=d on appeal (2000) 51 O.R. (3d) 236 (O.C.A.)
252.
In this case, the determination of whether the MOE owes a duty of care in negligent
misrepresentation to a particular member of the proposed class depends on, inter alia: whether the particular individual ever complained to the MOE regarding contamination (foreseeability); whether the MOE ever conducted tests of the individual=s property, and the result and significance of those tests (foreseeability); if not, whether the MOE ever tested nearby properties, and the result and significance of those tests (foreseeability); whether the MOE ever had any direct contact with the individual (foreseeability); whether the individual relied on any statements by the MOE; whether such reliance was reasonable; the specific purpose for which the individual relied on the statements of the MOE.
A determination of these individual issues will inherently require a separate and substantial individualized proceeding for each class member. Thus, the issue of whether a duty of care is owed in negligent misrepresentation cannot be determined for the entire class by simply determining the issue for the plaintiff. It is not a common issue.
-102-
(vii) Conclusion on Duty of Care 253. A determination of whether there is a duty of care owed to the members of the proposed
class by the defendants could result in an injustice to either party if such a determination were made outside of the factual framework in respect of which it would be dispositive.
Bre-X, Crown=s Authorities, Tab 13, per Winkler J., at 31 (QL)
254.
It is submitted that because the duty of care question in the case of the Crown is not a
common issue, none of the other issues can be considered common issues for the purposes of the Class Proceedings Act.
(viii) Standard of Care and Breach of Duty 255. In Schedule C of the plaintiff=s factum, the alleged common issue of standard of care and
breach issues for negligence are put as follows: AWhat was the appropriate standard of care that Regulators had to meet with respect to preventing the ongoing discharge of the Contaminants of Concern?@ ADid the Regulators breach the standard of care referred to ... above?@ No separate common issue for standard of care and breach in the case of negligent misrepresentation is provided by the plaintiff=s factum - although clearly such an issue is subsumed by the broad allegation of Anegligent misrepresentation@ set out in Schedule C of the plaintiff=s factum.
256.
The standard of care in both negligence and negligent misrepresentation cases is the so-
called reasonable person standard. The standard is established by determining what the
-103reasonable person would have done in the specific circumstances. What must be judged is whether the conduct of this particular defendant in this singular situation was acceptable or unacceptable to the community.
A.M. Linden, Canadian Tort Law, 5th ed. (Toronto: Butterworths, 1993), Crown=s Authorities, Tab 14
257.
Given all tortious liability of the Crown is vicarious, and depends upon proof of
actionable conduct by a particular Crown agent or employee, in order to succeed in his claims for either tort, the plaintiff will have to prove: (1) what a reasonable Crown employee, similarly situated, would have done in the specific circumstances; and (2) that the Crown employee=s conduct in fact fell below this standard.
258.
Concerning the allegations of negligence, as already discussed at length in the Facts
portion of this factum, and also under the heading ADuty of Care in Negligence@, above, the determination of what the reasonable MOE agent or employee should have done in the specific circumstances of this case in exercising the various statutory powers implied by the particular allegations of negligence, will require detailed individualized inquiries into the circumstances of each class member, and in particular the MOE=s relationship to the class member and knowledge of those circumstances. In view of this, the standard of care and breach issues for negligence are not a common ones, but rather with require potentially thousands of individual inquiries.
259.
The standard of care and breach issues for negligent misrepresentation may be a different
matter. The issue here is not principally what steps the MOE took or failed to take to prevent the
-104ongoing discharge of the Contaminants of Concern by Inco which may have been causing an adverse effect upon each individual class member (as per the allegations of negligence). Rather, it is what scientific opinion did the MOE and Region come to in various reports and was that opinion arrived at through the proper application of scientific methodology for health risk assessments and epidemiological health studies. This would appear to be a common issue.
(ix) Was the Representation Untrue, Inaccurate or Misleading 260. In his Fresh as Amended Reply to the Crown=s Demand for Particulars, the plaintiff
clarifies that the two representations were false because: 1. AClass members have been exposed to the risk of harm, and to actual harm@ as set out elsewhere in the pleadings; and AClass members have not been exposed to nickel, but instead have been primarily exposed to the known human carcinogen nickel oxide.@
2.
261.
It is submitted that the proof of either proposition by the plaintiff will require
individualized evidence. As noted by Inco in its factum, and as the plaintiff=s risk assessor concedes, assessing individual risk and attributing individual causation of disease necessarily involve fact-intensive individualized inquiries. Furthermore, in light of the high variability of nickel contamination levels from property to property throughout the Class area and also Inco=s evidence concerning the variability of the presence of nickel oxide contamination, it is clear that for the plaintiff to prove the latter proposition will also require fact-intensive individualized inquiries. (x) Reasonable Reliance 262. In an action for negligent misrepresentation, the plaintiff must also establish that he or she
-105relied upon the misrepresentation and that his or her reliance was reasonable.
Cognos, Crown=s Authorities, Tab 11, at para. 33
263.
On the facts outlined above under the heading AHistoric Involvement of MOE in Relation
to Allegations of Negligent Misstatement@, above, it is clear that the number of individual issues which, as a matter of process, will have to be addressed just to make a finding of reliance in the case of any given class member, will be extensive. These would include: how and to whom the different MOE reports were distributed over the years; when media coverage of the reports began; how the media covered each of the different reports; whether the individual actually read the report [the plaintiff himself admitted to having read none of the reports]; whether the individual obtained his or her information from media coverage, and whether that media coverage was accurate; whether the individual obtained his or her information from acquaintances in the community or even from plaintiff=s counsel and whether that information was accurate [especially in light of the alarmist and misleading press releases from plaintiff=s counsel]; whether the individual believed the information so read or received; and, whether the individual acted on the belief.
264.
It will further be a matter of individual inquiry to determine whether the reliance of each
class member was reasonable, having regard to all the above factors and others, such as: whether the particular individual ever complained to the MOE regarding contamination; whether the individual had health problems which he or she or any other qualified
-106person had ever told the individual were caused by or consistent with soil contamination [as in the case of the plaintiff personally]; whether the individual had received information from any other source concerning the presence of nickel oxide on his or her property, such as plaintiff=s counsel; whether the MOE ever conducted tests of the particular individual=s property, to the knowledge of the individual; if not, whether the MOE ever tested nearby properties, to the knowledge of the individual; whether the MOE ever had any prior direct contact with the individual and if so the nature of the communications, if any; whether the individual relied upon a representation which came from a study that expressly tested the individual=s property; whether the representation was gleaned from the study itself or from a media report or the advice of a friend or even from plaintiff=s counsel, and the extent to which the individual was reasonably entitled to rely upon the last three sources as reliable; whether, having regard to the scientific nature of the representations, the individual had the scientific training to interpret the representation in the manner he or she did, or reasonably believed he or she was so qualified; whether the individual consulted the MOE or the Region or other experts to assist in interpreting the representation if it was a scientific representation; the specific purpose for which the individual relied on the statements; whether and to what extent the Areliance@ conduct was caused by the statements of persons other than the MOE or by circumstances and factors other than the representation.
265.
Thus, the determination of reasonable reliance will inevitably require a fact-intensive
individualized inquiry into the circumstances of each class member.
(xi) Detrimental Reliance 266. In order to succeed in a claim for negligent misrepresentation, the plaintiff must prove
-107that the reasonable reliance was to the plaintiff=s detriment.

Cognos, Crown=s Authorities, Tab 11, at para. 33
267.
Clearly, this another element of the tort which can only be determined with reference to
each class member through fact-intensive individualized inquiry. Factors which will need to be considered include: the manner in which the individual relied upon the representation; whether, but for the representation, the individual would have remediated his or her own property; whether, but for the representation, the individual would have sold his or her property; whether, but for the representation, the individual would have left Port Colborne; whether, but for the representation, the individual would have taken additional precautionary steps to protect him or herself from ingesting or inhaling soil contaminants; whether the reliance resulted in the individual=s health being affected; whether the reliance resulted in plant or animal life on the individual=s property being affected; whether the reliance resulted in the individual=s property value being affected.
268.
As a result of the requirements of reasonable reliance and detrimental reliance, courts
have been extremely reluctant to certify a class action for negligent misrepresentation.
Abdool v. Anaheim Management Ltd. (1995), 121 D.L.R. (4th) 496 (Ont. Div. Ct.), Crown=s Authorities, Tab 15, at 18 (QL) Mouhteros v. DeVry Canada Inc. (1998) 41 O.R. (3d) 63 (Gen. Div.), Crown=s Authorities, Tab 16, at 9 (QL) Controltech Engineering Inc. v. Ontario Hydro, [1998] O.J. No. 5350 (Gen. Div.), Crown=s Authorities, Tab 17, at para. 16 Williams v. Mutual Life Assurance Co. of Canada (AMutual Life@) (2000), 51 O.R. 54 (Sup.
-108Ct.), Crown=s Authorities, Tab 18, at para. 23 Collette v. Great Pacific Management Co. (AGreat Pacific@) [2001] B.C.J. No. 253 (B.C.S.C.), Crown=s Authorities, Tab 19, at para. 88
269.
The decision by Winkler J. in Bre-X regarding the certification of the claims in negligent
misrepresentation was ultimately reversed in part by the Court of Appeal. However, the Divisional Court in Mutual Life has explicitly rejected the notion that the Court of Appeal=s decision in Bre-X should be interpreted as an indication that Aallegations of negligent misrepresentation are inherently capable of class certification@. Instead, the Divisional Court in Mutual Life noted that: [the decision by the Court of Appeal in Bre-X] stands for the proposition that where there is certification for a number of common issues, judicial expediency is best served if all issues are canvassed in the same action. It does not speak to the problems of lack of commonality in negligent misrepresentation cases.
Mutual Life, supra, at para. 23
270.
Similarly, the British Columbia Supreme Court in Great Pacific specifically addressed
the decision by the Court of Appeal in Bre-X and concluded that the main reason for the decision to certify the claims in negligent misrepresentation was that the Court of Appeal saw no principled basis for treating fraudulent and negligent misrepresentation differently on the question of certification.
Great Pacific, supra, at para. 83
271.
It is particularly difficult to find common issues substantial enough to warrant
-109certification in negligent misrepresentation actions in which the claim is not based on any single misrepresentation. When the allegations relate to different misrepresentations allegedly made in different documents and settings, the number of individual issues is increased and certification becomes less appropriate. On the evidence, the actual representations were not as pleaded in the Statement of Claim, but were in fact different and varied over time.
Controltech, Crown=s Authorities, Tab 17, at paras. 15-16
272.
It is respectfully submitted that given the extent and complexity of the individual issues
which must be examined in this case for each class member to prove reasonable and detrimental reliance, it is particularly inappropriate to certify the cause of action of negligent misrepresentation in this case.
(xii) Causation 273. Assuming it is proven that members of the proposed class are suffering some type of
harm, the inquiry must also consider whether conduct by the defendants was the cause in fact, and in law, of this harm. This will involve assessing whether other factors in the class members= lives, as opposed to any negligence on the part of the defendants, was the cause of any injuries suffered.
274.
In order to assess causation of health impacts with respect to the tort of negligence, it
would be necessary to consider, inter alia, the individual plaintiff=s time exposure to the pollution, the extent of resultant injury, general personal health and medical history, age,
-110unrelated illness, lifestyle and other individual considerations.

Bywater, Crown=s Authorities, Tab 7, at para. 19 Anderson et al. v. Wilson et al. (1999), 175 D.L.R. (4th) 409 (C.A.), Plaintiff=s Authorities, Tab 4, at 419; leave to appeal to S.C.C. dismissed [1999] S.C.C.A. No. 476
275.
An equally detailed individualized examination and testing of property conditions would
be required to assess causation of phytotoxicological impacts or property value diminution.
276.
Causation is necessarily an individual issue with respect to every member of the class. A
determination regarding causation can only follow discoveries and a trial involving each claimant.
Anderson, ibid.
277.
It is submitted that in view of the breadth and complexity of individual causation issues
raised by the plaintiff=s allegations of negligence, it would be particularly inappropriate to certify a class action for negligence in this case. The Crown repeats and adopts the submissions of Inco in this regard.
(xiii) Damages 278. Damages must be assessed through an individual inquiry in order to determine precisely
the nature and extent of injuries suffered.

Bywater, Crown=s Authorities, Tab 7, at para. 18
(xiv) Punitive Damages
-111279. The plaintiff proposes as the final common issue, punitive damages in the following
terms: ADoes the defendants= conduct justify an award of punitive damages to the class, and if so, what amount of punitive damages is appropriate?@
280.
It is not conceded that punitive damages are a common issue. Punitive damages may be
awarded in situations where the defendant=s misconduct is so malicious, oppressive and highhanded that it offends the court=s sense of decency. The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour. Punitive damages are not generally awarded in negligence actions unless the tortfeasor shows a reckless disregard for the consequences of his action.
Lewis N. Klar, Remedies in Tort (Carswell), Chapter 27, Crown=s Authorities, Tab 22, at 27-49 and 27-53 Whiten v. Pilot Insurance Co. [2002] S.C.J. No. 19 (S.C.C.), Crown=s Authorities, Tab 23, at para. 36
281.
It is submitted that whether or not Crown employees showed a reckless disregard for the
consequences of their actions would require the Court at trial to assess, on an individualized basis, the precise historic dealings which the Crown had with each member of the proposed class. Only in this way will the Court be able to assess what consequences actually flowed from the alleged misconduct and whether those consequences were known or foreseeable to Crown employees at the time. Only through such an individualized inquiry will the Court be able to decide if Crown employees acted in a malicious, high-handed or oppressive manner in their dealings with the public, or if Crown conduct represented Aa marked departure from ordinary standards of decent behaviour@, as opposed to simple negligence.
-112-
282.
Such an approach is not without precedent. Some cases have held that a plaintiff will not
receive punitive damages unless he has actually been victimized by the defendant=s conduct.
Lewis N. Klar, Remedies in Tort, Crown=s Authorities, Tab 22, at 27-56
283.
In the appropriate case, punitive damages may constitute an individual issue requiring an
individualized assessment of all the dealings between a defendant and individual members of the class.
Rosedale Motors Inc. v. Petro-Canada Inc., [2001] O.J. No. 5368 (Div. Ct.), Plaintiff=s Authorities, Tab 17, at para. 7
284.
In any event, having regard to the testimony of the plaintiff=s own witness Allen Baldwin
concerning the exemplary conduct of the MOE from the 1970's onward in successfully Apushing@ Inco to abate its emissions, it is difficult to imagine how the issue of punitive damages could loom large on the trial landscape, even if construed as a common issue.
(xiv) General Common Issues 285. In Schedule C of the plaintiff=s factum, three General Common Issues are proposed by
the plaintiff as follows: 1. Were the contaminants arsenic, chlorine, cobalt, copper, lead, nickel and zinc (the AContaminants of Concern@) discharged by Inco? How widespread is the distribution of the Contaminants of Concern? At what level do the Contaminants of Concern pose risks to the natural environment or to human health, or both?
2. 3.
-113286. It is submitted that although each of these issues are truly common, two of them (b and c)
will be addressed completely within the CBRA process, the Director=s Order of March 2002, and the Environmental Review Tribunal hearing. There is no need to conduct a class action to answer them.
287.
Given the AChemicals of Concern@ issue has already been decided within the
consultative, consensual, and scientific CBRA process (arsenic, cobalt, copper and nickel have been identified as the contaminants discharged by Inco which the CBRA will study), the first general common issue (a) is moot. Similarly, the exclusion of the three remaining contaminants (chlorine, zinc and lead) from the CBRA process has been done on a basis which effectively answers the question posed by the plaintiff.7
Conard Cross-Examination, Q. 53 Ellen Smith Affidavit, at para. 21
On the evidence, lead was ruled out because it was not caused by Inco. Chlorine and zinc were also ruled out, presumably because they did not satisfy the CBRA criteria for being a Chemical of Concern, that is, they (a) were not chemicals used or released by one of Inco=s processes, or (b) were not present in the community at levels in excess of current government guidelines (ie. the levels are scientifically trivial), or (c) could not be scientifically linked to Inco.
-114Nieweglowski Affidavit, at para. 15
(xv) Common Issues for Inco 288. Regarding the common issues alleged in Schedule C of the plaintiff=s factum vis-a-vis
Inco, the Crown repeats and adopts all of Inco=s submissions.
(xvi) Conclusion on Common Issues 289. In light of the foregoing, it is respectfully submitted that the vast majority of the issues in
this action, and certainly all of the substantial issues, are individual rather than common in nature. While there are issues which may be common to the claims of all of the members of the proposed class, the resolution of these issues would be merely the starting point of the necessary inquiry. The proceeding would inevitably break down into a series of individual proceedings. As a result, it is submitted that this class proceeding should not be certified because s.5(c) of the CPA cannot be satisfied.
S.5(D) 290.
PREFERABLE PROCEDURE
In the absence of legislative guidance, the preferability inquiry should be conducted
through the lens of the three principal goals of class actions. These goals are: judicial economy, access to justice and behaviour modification: (1) by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis; by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own;
(2)
-115(3) class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing or might cause to the public.
Hollick, Plaintiff=s Authorities, Tab 2, at para. 27 See also: Abdool, Crown=s Authorities, Tab 15, at 15-16 (QL)
291.
APreferable@ was meant to be construed broadly. The term was meant to capture two
ideas: first, the question of Awhether or not the class proceeding [would be] a fair, efficient and manageable method of advancing the claim@, and second, the question of whether a class proceeding would be preferable Ain the sense of preferable to other procedures such as joinder, test cases, consolidation, and so on@.
Hollick, Plaintiff=s Authorities, Tab 2, at para. 28
292.
The preferability analysis must consider the availability of avenues of redress apart from
individual actions. The preferability analysis requires the court to look to all reasonably available means of resolving the class members= claims and not just the possibility of individual actions.
Hollick, Plaintiff=s Authorities, Tab 2, at para. 31 Brimner et al. v. Via Rail Canada Inc. et al. (2000), 47O.R. (3d) 793 (Div. Ct.), Plaintiff=s Authorities, Tab 15, at 794
293.
It is impossible to determine whether the class action is preferable in the sense of being a
Afair, efficient and manageable method of advancing the claim@ without looking at the common issues in their context. The question of preferability must take into account the importance of the common issues in relation to the claims as a whole.
Hollick, Plaintiff=s Authorities, Tab 2, paras. 28, 30 Chadha et al.v. Bayer Inc. et al (2001), 54 O.R. (3d) 520 (Div. Ct.), Plaintiff=s Authorities,
-116Tab 13, at para. 19
294.
As noted by Winkler J.: 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 student=s experience is idiosyncratic, and liability would be subject to numerous variables for each class member. Such a class action would be completely unmanageable.
It is respectfully submitted that Justice Winkler=s reasoning in Mouhteros is particularly apt in the within case. Applying the law to this proceeding, it is evident that a class proceeding is not the preferable procedure for the resolution of the issues between the parties.
Mouhteros, Crown=s Authorities, Tab 16, at 9 (QL) See also: Controltech, Crown=s Authorities, Tab 17, at para. 14-16
295.
This proceeding fails the test set out in s.5(1)(d) of the Act because the ongoing programs
and regulation currently underway in Port Colborne to address contamination concerns in that community, more particularly described under the heading (Current Activities of the Regulators and Inco), above, is a superior method for addressing the matters that are at issue in this proceeding. The HHRAs have involved the defendants in an extensive and thorough investigation and analysis of the contamination and potential health effects. The CBRA process, as a multi-party, consultative, scientific inquiry involving the input of all stakeholders, provides an effective means of arriving at a balanced, sound and community-accepted solution to a community-wide environmental problem. The CBRA process which is cost-free to the class members will, ultimately, result in Inco remediating, at Inco=s expense, the Port Colborne community so that any risk of harm to the community is eliminated or, at the very least, reduced
-117to negligible levels. Finally, the Director=s Orders provide the safety net to ensure that, in the event Inco fails to voluntarily satisfy its obligations to remediate the community under the CBRA process, the MOE can impose legally binding obligations on Inco to carry out the needed activities.
296.
A class action, on the other hand, will be costly, time-consuming and counter-productive.
It will undermine the CBRA process by diverting the resources of the parties and polarizing the parties. It will also require court rulings on evolving and complex scientific questions which are better resolved through a consultative approach among scientific experts in their respective fields, the PLC and the public.
297.
Considering the common issues in the context of the entire proceeding, it is clear that any
common issues are vastly outweighed, in number and significance, by the individual issues. The potential claims of the proposed class members do not arise out of the same or similar facts, but rather out of very different facts which are unique to each and every member of the proposed class. A class action would necessarily require an extremely lengthy, individualized, property-byproperty and person-by-person inquiry into historic facts for the purposes of determining liability and damages. Such a class proceeding would be unmanageable and unfair to the parties.
McLaughlin Affidavit, paras. 75-80
298.
Furthermore, it is evident that the goals of the CPA would not be achieved or even
significantly advanced through the certification of this proceeding.
-118-
299.
As noted previously, there are no substantial common issues in this proceeding. The vast
majority of the issues in dispute, and all of the substantial issues in dispute, are individual issues requiring an individual inquiry. As a result, the goal of judicial economy would not be advanced by the certification of this action because the resolution of the common issues would not materially move the litigation forward. The proceeding would necessarily break down into a series of individual inquiries. In light of the overwhelming number of individual issues, this proceeding would be unmanageable as a class proceeding.
Hollick, Plaintiff=s Authorities, Tab 2, para. 32 Chadha, Plaintiff=s Authorities, Tab 13, at para. 14 Tiemstra v. Insurance Corp. of British Columbia, [1997] B.C.J. No. 1628 (C.A.), Crown=s Authorities, Tab 21, at paras. 13-14 Bittner v. Lousiana-Pacific Corp., [1997] B.C.J. No. 2281 (B.C.S.C.), Crown=s Authorities, Tab 22, at para. 68
300.
Similarly, the goal of access to justice would not be significantly advanced through the
certification of this proceeding as a class action. As noted above, the defendants have established a sophisticated and comprehensive regime for studying and remediating any contamination problems in the Port Colborne community. This includes the numerous HHRAs that have been conducted, the CBRA that is ongoing and the various Director=s Orders that have been issued by the MOE. This multi-faceted and effective system is available to all members of the proposed class, free of charge. It is by supporting and encouraging this alternative to litigation that the goal of access to justice can be furthered.
301.
In addition, with respect to the goals of the Class Proceedings Act, the goal of behaviour
-119modification would not be enhanced by the certification of this proceeding. On all the evidence, the regulators have been actively and effectively addressing known pollution in Port Colborne since the 1970's. Since the mid-1990's, the regulators have been actively evaluating potential health impacts of that pollution. Since 1998, Inco has been voluntarily carrying out a groundbreaking CBRA and has publicly committed to remediating all of Port Colborne to scientifically state of the art standards. As an added measure of security, the MOE has ordered Inco to conduct the necessary cleanup. The processes currently underway in Port Colborne involve extensive participation by the public and are extensively covered by the media.
S.5(E)
CLASS REPRESENTATIVE
(1) Adequately Representation 302. The class representative must adequately represent the class. In assessing whether the
proposed representative is adequate, the court may look to the motivation of the representative, the competence of the representative=s counsel and the capacity of the representative to bear any costs that may be incurred by the representative
Dutton, Crown=s Authorities, Tab 8, at para. 41
303.
Given plaintiff=s counsel: 1. Has been personally retained by at least 20 and perhaps as many as 250 families in the Rodney Street community; Has represented those 20 residents in negotiations with Inco in which the residents have opposed all of Inco=s efforts to voluntarily remediate their properties; Has tendered unfounded affidavit material highly critical of the PLC and CBRA processes in an effort to cater to the obviously conflicting interests of a vocal minority of Rodney Street community residents; and,
2.
3.
-1204. Has refused to represent the interests or views of residents of Port Colborne residents who are positive and supportive of the PLC and CBRA processes (Dayboll),
it is submitted that the ability of the representative plaintiff, through his counsel, to fairly, adequately, and competently represent the interests of the Class as a whole is in serious doubt.
304.
Furthermore, although this Honourable Court has ordered the plaintiff to pay forthwith
$30,000 in costs on account of various preliminary motions brought in these proceedings, the plaintiff paid none of those costs for a period of up to 8 months, despite repeated requests for payment, and then only made payment on the eve of the hearing of this certification motion. It is submitted that the capacity of the representative plaintiff to bear any costs that may be incurred by the representative is in serious doubt.
305.
While a representative plaintiff need not be typical, he or she cannot be so distinctive, in
the face of the class definition, as to produce a result in law flowing from a common issue trial which could be more adverse to class members than an individual trial would be. Where the cause of action or the common issues proposed depend on individual characteristics of the plaintiff rather than a commonality within the class, then the approval of a distinctive plaintiff as the class representative works a manifest unfairness to the plaintiff class. This is the raison d=etre of the requirement for commonality which is the underpinning of the statute.
Bre-X, Crown=s Authorities, Tab 13, per Winkler J., at 41 (QL)
306.
It is submitted that the obvious personal conflict of interest between of the representative
-121plaintiff (whose property probably does not require remediation) and the remainder of the Class, makes the plaintiff so distinctive, in the face of the class definition, that the causes of action he advances are likely to depend too much on his personal characteristics and work a manifest unfairness to the plaintiff Class as a whole.
307.
For all the above reasons, it is submitted that the representative plaintiff cannot be
expected to fairly and adequately represent the interests of the Class.
(2) Litigation Plan 308. The production of a workable litigation plan serves a twofold purpose. It assists the court
in determining whether the class proceeding is indeed the preferable procedure and it allows the court to determine whether the litigation itself is manageable in its constituted form. The manageability must be assessed in the context of the entirety of the litigation, not just a common issue trial. In assessing complexity, it is necessary to consider the nature of the defendants, the uncertainty of class size and the number of causes of action alleged.
Bre-X, Crown=s Authorities, Tab 13, per Winkler J., at 25-26 (QL)
309.
In complex litigation, a detailed plan which meets the requirements of the Act is of
critical importance.
Bre-X, ibid.
310.
In this case, the litigation plan is inadequate in that it: 1. fails to describe the common issues;
-1222. 3. fails to describe the individual issues; fails to provide a workable and manageable plan for addressing the numerous individual issues.
311.
It is submitted that the representative plaintiff has failed to produce a plan for the
proceeding that sets out a workable method of advancing the proceeding on behalf of the Class, as required by clause 5(e)(ii) of the CPA.
(3) Conflict of Interest 312. For the reasons set out above, it is submitted that the representative plaintiff has, on the
common issues for the class, an interest in conflict with the interests of other class members, contrary to clause 5(e)(iii) of the CPA.
PART IV - ORDER REQUESTED
313.
The defendant, Her Majesty the Queen in Right of Ontario, respectfully requests that this
motion be dismissed with costs.
-123-
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Dated: May 30, 2002 ______________________________ Jack D. Coop Of counsel for Her Majesty the Queen in Right of Ontario

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Court File No.

ONTARIO JUSTICE BETWEEN:

pollution from the Refinery.

-11any toxicological impact, even from long-term exposure.

The Plaintiff=s Claims

particular, the plaintiff alleges that:

These allegations of negligent misrepresentation will also be examined in greater detail

-14Statement of Claim, paras. 24 and 25.

OVERVIEW OF HISTORIC INVOLVEMENT OF THE MOE IN PORT COLBORNE

IN RELATION TO ALLEGATIONS OF NEGLIGENCE

-17Statement of Claim, para. 45

or it conducted annual surveys or special investigations.

These surveys found different levels of contamination at different properties. Studies

Statement of Claim, is a question which is specific to individual properties.

In McLaughlin=s opinion, which is uncontradicted on the evidence, only after an

Baldwin admitted on cross-examination that the aforenoted Refinery inspections and

Thus, Baldwin=s evidence on cross-examination supports McLaughlin=s evidence to

Moreover, as a study done by Inco=s consultant Jacques Whitford Environmental Ltd.

McLaughlin=s evidence on this point is again confirmed by the evidence provided by

-27Baldwin Cross-Examination, Q. 99-103

In terms of current approvals, the uncontradicted evidence of Paul Nieweglowski, the

-30Baldwin Cross-Examination, Q. 147, 139

McLaughlin participated in the majority of complaints investigations conducted by the

Enforcement of the EPA - 45(h)

A further complicating difference, as noted by Inco in its factum, is that a Amere@

HISTORIC INVOLVEMENT OF MOE

IN RELATION TO ALLEGATIONS OF NEGLIGENT MISSTATEMENT

-36conclusions and findings.

-39Kaufmann Cross-Examination, Q. 120-137, Q. 117

It is submitted that without an individualized inquiry into the circumstances of each

-41C. 101. CURRENT ACTIVITIES OF THE REGULATORS AND INCO

The Community Based Risk Assessment

In May 2000, Inco retained Jacques Whitford Environment Limited (AJWEL@) to

-46Nieweglowski Affidavit, paras. 10 and 11

-48PLC Terms of Reference, at 51

-59James Smith Affidavit, Exhibit AF@, Crown=s Record, Volume IV

The Director=s Orders

-61Haniff Affidavit, paras. 13, 14 and 15

Order, the Order is issued in final form.

The Order is intended to complement the CBRA process. It is aimed at quickly

The Environmental Review Tribunal (AERT@ or ABoard@) is an expert tribunal which

and to the Minister on a question of fact or policy.

A class action will also require an equally lengthy, individualized, property-by-property

Similarly, at paragraph 42 of the plaintiff=s factum the plaintiff=s risk assessor is

At paragraph 103, plaintiff=s factum moves from falsehood to fantasy, suggesting

appropriately prosecuted as a class action.

REASONABLE CAUSE OF ACTION

As noted above, regardless of whether the mode of enforcement is prosecution or orders,

enforcement under the EPA is an entirely discretionary matter.

It is fundamental principle of law that Athe Crown is at liberty to prosecute only

giving rise to the subsequent damage.

In the present case there is no allegation of malicious failure to prosecute. There is no

be unduly narrow or unduly broad.

rational relationship between the class and common issues.

members have conflicting interest.

Even if the MOE somehow Acaused@ an additional 3% of nickel to be discharged from

the increase is scientifically or medically significant.3

-91Environmental Protection Act, R.S.O. 1990, C. E-19, section 9(4)

torts of negligence or negligent misstatement, or elements of them. To these we now turn.

-93ingredient to each class member=s claim.

Same point as footnote 3, supra.

Concerning the allegations of negligence, as already discussed at length in the Facts

Thus, the determination of reasonable reliance will inevitably require a fact-intensive