Court file no.

: 12023 /01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: WILFRED ROBERT PEARSON Plaintiff - and -

INCO LIMITED, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CORPORATION OF THE CITY OF PORT COLBORNE, THE REGIONAL MUNICIPALITY OF NIAGARA THE DISTRICT SCHOOL BOARD OF NIAGARA, and THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD

Defendants AFFIDAVIT OF WILFRED ROBERT PEARSON Sworn January 17, 2002

I, WILFRED ROBERT PEARSON, of the City of Port Colborne, in the Regional Municipality of Niagara, MAKE OATH AND SAY:

1.

I am the proposed representative plaintiff in this action, and as such I have knowledge of the matters to which I herein depose, save and except where I have been advised of the same, in which case I believe such information to be true.

Personal Background 2. I am 70 years old. I joined the Canadian Armed Forces in 1950 and served in the Korean War until 1954. I continued to serve in the Canadian Army until 1973 when I returned to civilian life as a truck driver. During this time my wife Catherine and I have raised four sons. I retired in the early 1990's. Since my retirement I have continued to work on occasion as a commercial sign artist. I also build large scale-models, and am a founding and active member of the Niagara Regional Police Male Chorus.

Economic Losses 3. Catherine and I own a home at 97 Rodney Street, Port Colborne, Ontario. Our home is located approximately one block away from Incos Port Colborne Refinery (the Refinery). We purchased our home in 1980.

4.

The current assessed value of our home for property tax assessment purposes in the 2001/2002 taxation year is $44,000.00. At the same time, I believe that based on the value of other properties in the area, but for the contamination and damage to our property caused by Inco our home would be worth approximately $70,000.00.

5.

In September of 2000, testing by the Ontario Ministry of the Environment (the MOE) determined that the following levels of contamination (expressed in parts per million ppm) are present in the soil at various locations and depths on our property:

Contaminant Arsenic Cobalt Copper Lead Nickel

MOE Guideline 20 ppm 20 ppm 225 ppm 250 ppm 200 ppm

Present In Soil 44 ppm 95 ppm 480 ppm 360 ppm 6,100 ppm

6.

A sample taken from inside the structure of our home (attic) and submitted to Niagara Analytical Inc., Niagara Falls, Ontario for analysis at Envirotest Laboratories Inc., Waterloo, Ontario in August of 2001, showed that the following levels of contamination (expressed in parts per million ppm) are also present inside our home:

Contaminant Arsenic Cobalt Copper Lead Nickel Zinc

MOE Guideline 20 ppm 20 ppm 225 ppm 250 ppm 200 ppm 600 ppm

Present in Home 58 ppm 89 ppm 813 ppm 1,700 ppm 5,280 ppm 2,560 ppm

7.

As a result of this contamination, my wife, myself and our family have been unable to enjoy many aspects of our property.
3

8.

More specifically, between the time of purchasing the property in 1980 and 1983, my wife and I attempted to cultivate a vegetable garden on the property. Most vegetables would not grow. Consequently, after 1983 my wife and I abandoned our garden.

9.

Since the high levels of contamination in his neighbourhood were publicly announced for the first time in the spring of 2000, I have not been able to let my grandchildren play or make any other use of the outside of our property. In order to protect ourselves, I and my family have been forced to cease most outdoor activity on our property.

10.

Our home is located within the Rodney Street Area of Port Colborne (also known as the East Side Community), an area defined as being bounded by Rodney Street to the south, Davis Street to the East, Durham Street to the north and Welland Street to the west (the East Side Community). There are approximately 310 homes within this area.

11.

Ever since the spring of 2000 when the public was informed of the high levels of contamination within the East Side Community, house sales in this part of Port Colborne have essentially ceased. Given that there is no market for our home, this appears to make its present value nil.

12.

In June of 1992, I first observed that portions of the middle of our home were beginning to shift and sag towards the east. In the spring of 1995, I first observed that portions of the foundation of the home in the area of the front veranda, the east side of the structure
4

and west side of the home were starting to develop significant cracks.

13.

This shifting, sagging and cracking is due to subsidence of the earth on the east side of our home caused by the removal of water from underground by pumping operations on Incos property used to attempt to prevent the migration of contaminants through groundwater off the Inco site. The east side of our home is now leaning a full 4 inches from its normal upright position, causing further damage to the structure of the home. This has also caused damage to the furnace and associated duct work.

14.

In the spring of 2001, I made an application to Niagara Regional Mortgage Services Inc. (who had also arranged the existing mortgage on the property) in order to add an additional mortgage to our home, in part to repair this damage. On March 7, 2001, I was advised in writing that before being able to proceed with our application for mortgage financing, I would have to produce an environmental certificate confirming that your property is free and clear of all contamination. Consequently, our home remains in a state of disrepair and continues to deteriorate.

15.

In December of 2001, due to the fact my wife is now on long term disability, I applied to Niagara Regional Mortgage Services Inc. in order to consolidate our mortgage payment and certain other debts. While this will allow us to reduce the total monthly payment we must make each month, it will not provide us with any additional cash which we can use to repair our home.
5

Personal Health 16. Shortly after moving to Port Colborne in 1980, I began to develop dry itchy patches of skin on my arms, legs and head. These patches appear primarily during the spring and summer each year, and have continued to cause significant personal discomfort on an annual basis. During the summer months, I have also experienced fits of coughing. These occur when I am exposed to dust in the environment outside of our home.

17.

Shortly after moving to Port Colborne in 1980, I also began to experience the impact of chlorine gas emissions coming from the Refinery. These emissions have occurred approximately once every two to four weeks. They result in itchy eyes and a sore throat. These emissions still continue.

18.

Since the fall of 1994, I have experienced insomnia, which has been treated using medication prescribed by our family doctor. Since 1994, I have also experienced a loss of sexual function.

19.

On May 24, 1995 and again on May 27, 1995, I suffered major heart attacks. On May 27, 1995, a cardiac triple bypass operation was performed. Since then I have continued to be treated with daily heart medications. I have also required ongoing treatment for high blood pressure which involves taking blood pressure control medication on a daily basis.

20.

Since the end of 1995, I have experienced episodes of depression. These have required
6

ongoing medical treatment.

21.

Since early in 1996, I have also begun to experience severe headaches. These occur once or twice per month and are treated using medication prescribed by our family doctor.

22.

In April of 1999, I was operated on to remove growths from my prostate gland.

23.

I have been advised by my doctor that all of the foregoing medical conditions and aliments are consistent with exposure to one or more of the Contaminants of Concern, or with reactions to the stress and anxiety caused by living in the circumstances that I and my family find ourselves facing. All of the foregoing medical conditions and ailments have caused me significant pain, suffering and loss of enjoyment of life, as well as medical, prescription drug and other incidental costs.

The Role of Inco and Public Authorities 24. I have been aware of the existence of the Refinery for many years. I was aware at the time I moved to Port Colborne in 1980 that the Refinery had been the largest industry, and largest employer in Port Colborne for decades. As a very large scale heavy industry using hazardous processes and substances, I was also aware that if the Refinery was not operated or supervised properly that there was the potential for serious harm or damage to occur to myself and many others.

25.

When I moved to the area, I expected that Inco had been and would continue to operate the Refinery in a manner that would not jeopardize the health or property of Class Members such as myself.

26.

I also became aware and/or understood that Her Majesty the Queen in right of Ontario (HMQ), through its various arms such as the MOE had been inspecting, approving, studying, and responding to complaints about the Refinery.

27.

I also knew that members of the Region of Niagaras Public Health Department (Public Health Officials) were responsible for overseeing the Refinerys operations to insure that the health of Class Members was protected.

28.

I also knew that the City of Port Colborne (the City) through its bylaws and zoning was there to insure that Class Members health and property was protected.

29.

One of the main reasons that I was comfortable purchasing a home and living in this area was that I expected and relied on Inco, HMQ, Public Health Officials and the City to have operated and/or supervised the operation of the Refinery properly. I have also expected and relied on Inco, HMQ, Public Health Officials and the City to continue to operate and/or oversee the Refinery properly.

30.

As a result of Inco, HMQ, Public Health Officials and the City not operating and/or
8

supervising the operation of the Refinery properly, I have suffered losses and damages as set out above.

Representations by Public Authorities 31. Since I became aware of elevated levels of contamination in my area on September 20, 2000, both HMQ and the Region of Niagaras Medical officer of Health (MOH) have been advising me that:

(i)

emissions from the Refinery do no pose any immediate risk, or any risk to human health, and that one of the substances that I have been and am still being exposed to is nickel, and not the known human carcinogen nickel oxide.

(ii)

32.

These representations were made in and through scientific reports and studies prepared by, in conjunction with, or for HMQ and the MOH. These two representations were then repeated by HMQ and MOH in press releases and in letters to the public.

33.

More specifically, HMQ has been advising that there is no risk or no immediate risk to health through, at minimum, the following reports, studies and press releases:

Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: May 1997, MOE Phytotoxicology Soil Investigation: INCO - Port Colborne (1998), MOE Phytotoxicology Soil Investigation: Port Colborne, 1999, MOE Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and
9

Cobalt in Port Colborne and Vicinity: January 2000, MOE Soil Contamination in Selected Port Colborne Woodlots: 2000, MOE Phytotoxicology Soil Investigation: School Yards and Beaches, Port Colborne (April 2000), MOE Fact Sheet: Environmental Sampling program Confirms Metals Do Not Pose a Health Risk at Port Colborne Schools; January 25, 2001, MOE Soil Investigation and Human Health Risk Assessment for the Rodney Street Community, Port Colborne, March 2001, MOE Letter to Rodney Street Community Residents; May 2, 2001, MOE Phytotoxicology 2001 Investigation: Resampling of Soil at Humberstone School, and Arsenic in Soil at All Schools - Port Colborne, MOE Phytotoxicology 2001 Investigation: Resampling of Soil at St. Therese Catholic School, Port Colborne, MOE Letter to Rodney Street Community Residents; June 6, 2001, MOE Letter to Port Colborne Residents and Frequently Asked Questions; July 16, 2001, MOE

34.

The MOH has been advising that there is no risk or no immediate risk to health through, at minimum, the following reports, studies and press releases:

Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: May 1997, MOE Phytotoxicology Soil Investigation: INCO - Port Colborne (1998), MOE Phytotoxicology Soil Investigation: Port Colborne, 1999, MOE Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: January 2000, MOE Soil Contamination in Selected Port Colborne Woodlots: 2000, MOE

10

Phytotoxicology Soil Investigation: School Yards and Beaches, Port Colborne (April 2000), MOE Fact Sheet: Environmental Sampling program Confirms Metals Do Not Pose a Health Risk at Port Colborne Schools; January 25, 2001, MOE Soil Investigation and Human Health Risk Assessment for the Rodney Street Community, Port Colborne, March 2001, MOE Fact Sheet for Port Colborne Residents, Commonly asked Questions About Possible Health Effects Related to Soil Contamination, April 1, 2001; Niagara Region Public Health Department Letter to Rodney Street Community Residents; May 2, 2001, MOE Phytotoxicology 2001 Investigation: Resampling of Soil at Humberstone School, and Arsenic in Soil at All Schools - Port Colborne, MOE Phytotoxicology 2001 Investigation: Resampling of Soil at St. Therese Catholic School, Port Colborne, MOE June 4, 2001 Letter to East Side Community Residents: Niagara Region Public Health Department Letter to Rodney Street Community Residents; June 6, 2001, MOE Press Release dated June 22, 2001; Niagara Region Public Health Department Letter to Port Colborne Residents and Frequently Asked Questions; July 16, 2001, MOE Press Release dated July 20, 2001; Niagara Region Public Health Department East Side Community Resident Letter, August 7, 2001, Niagara Region Public Department

35.

In addition, these representations have been included in newspaper articles, television and radio broadcasts that I have seen and/or heard.

36.

These representations were also repeated at public meetings that I attended.

11

37.

These representations were made by the authors of the initial reports and studies, and perpetuated by the authors of the press releases and letters to the public, and by those representatives of HMQ and MOH who distributed these materials, or spoke publicly or were interviewed by the media.

38.

It is also clear that they were incorrect, in that:

(i)

I have been exposed to the risk of harm, and have suffered actual harm that is consistent with being exposed to the contaminants found on my property and in our home, and I have not been exposed to nickel, but instead have been primarily exposed to the human carcinogen nickel oxide.

(ii)

39.

HMQ and MOH ought to have known that there were risks of harm, and actual harm being caused by this exposure. Since 1994, HMQ and MOH also ought to have known that I was being exposed to the known human carcinogen nickel oxide.

40.

I was induced to rely on these representations, and did in fact rely on these statements because they were made repeatedly, and by public authorities (HMQ and MOH) that I have normally and properly looked to and trusted for complete and accurate information on matters of this nature.

41.

Given that these representations were widely and repeatedly publicized by HMQ and
12

MOH and held out to be the position of HMQ and MOH as the statutory authority with responsibility for matters of this nature, it was clear to me that the intention of HMQ and MOH was that I should be able to and would rely on these statements.

42.

As a result of these representations, I have done things that I would not have done had the true facts been known, by (a) continuing to live within the area defined by the boundaries of the class definition, and (b) by failing to protect myself against the hazards posed by exposure to the contaminants found both inside and outside our home.

43.

As a result of these representations, I have suffered losses and damages as set out above.

Acting As Representative Plaintiff 44. I have reviewed the statement of claim in this action and the definition of the proposed class with my legal counsel. I believe that with the assistance of legal counsel and experts retained to assist the class as outlined in other affidavits to be filed on this motion for certification that I will be able to fairly and adequately represent the interests of the class.

45.

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 has also been produced and is included in those affidavits.
13

46.

After reviewing the definition of the class, I do not believe that I have any conflict with members of the class.

47.

I make this affidavit in support of the motion for certification of this action and for no improper purpose.

SWORN BEFORE ME at the City of Toronto, this 17th day of January, 2002 WILFRED R. PEARSON A commissioner etc.

) ) )

) ) )

14