Court File No.

DIVISIONAL COURT SUPERIOR COURT OF JUSTICE BETWEEN: WILFRED ROBERT PEARSON Plaintiff (Appellant) - 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 (Respondents) Proceeding under the Class Proceedings Act, 1992

NOTICE OF APPEAL

THE PLAINTIFF appeals to the Divisional Court from the order of the Honourable Mr. Justice Ian V. B. Nordheimer, released July 16, 2002, made at Toronto, Ontario. THE APPELLANT asks that the order of the Honourable Mr. Justice Ian V. B. Nordheimer dated July 16, 2002 be set aside and that an order be granted as follows: (a) (b) (c) certifying this action as a class proceeding under the Class Proceedings Act, 1992; appointing Wilfred Robert Pearson as representative plaintiff for the class; declaring the common issues to be certified;

(d) (e) 1992; (f) (g) (h) (i)

providing for notice to the class as set out in the notice of motion and litigation plan; providing any necessary directions, pursuant to section 12 of the Class Proceedings Act,

directing that the defendants pay the costs of the notice to the class; granting the plaintiff his costs of this appeal and the motion for certification; remitting this matter to Winkler J. or his designate for further proceedings; and such further and other order as to this Honourable Court may seem just.

THE GROUNDS OF APPEAL ARE AS FOLLOWS: I. (a) ERRORS REGARDING THE IDENTIFIABLE CLASS the motions judge erred in failing to find that there was identifiable class of two or more

persons, pursuant to section 5(1)(b) of the Class Proceedings Act, 1992; (b) the motions judge failed to apply an objective test in determining whether an identifiable

class of two or more persons existed; (c) the motions judge failed to properly apply the principles set out by the Supreme Court of

Canada in Hollick v. Toronto (2001), 125 D.L.R. (4th ) 385 (S.C.C.) and Rumley v. British Columbia (2001), 205 D.L.R. (4th ) 39 (S.C.C.) with respect to the existence of an identifiable class of two or more persons;

II. (d)

ERRORS REGARDING THE PREFERABLE PROCEDURE the motions judge erred in failing to find that allowing the action to proceed as a class

proceeding would avoid a duplication of fact- finding and legal analysis despite his finding that there were 13 common issues raised by the claims of the class; (e) the motions judge erred in failing to find that a class proceeding would meet the three

goals underlying the Class Proceedings Act, 1992, namely access to justice, judicial economy and behaviour modification; (f) the motions judge erred in failing to apply the proper principles set out by the Supreme

Court of Canada in Hollick v. Toronto and Rumley v. British Columbia with respect to the preferable procedure test; III. (g) ERRORS REGARDING THE REPRESENTATIVE PLAINTIFF the motions judge erred in failing to find that the plaintiff was an adequate representative

plaintiff within the meaning of section 5(1)(e) of the Class Proceedings Act, 1992; (h) the motions judge erred in finding that the proposed representative plaintiff must have the

financial capacity to personally bear any costs or expenses that may be incurred by the proposed representative plaintiff in the action, including any possible adverse costs award in favour of the defendants; (i) the motions judge erred in finding that the proposed representative plaintiff had, on the

common issues for the class, an interest in conflict with the interests of other class members;

(j)

the motions judge erred in finding that the proposed representative plaintiff had not

produced a plan for the proceeding that set out a workable method of advancing the proceeding on behalf of the proposed class; IV. (k) OTHER ERRORS IN PRINCIPLE the motions judge erred in importing additional certification requirements into the Class

Proceedings Act, 1992, which requirements the Ontario Legislature expressly refused to include, after extensive study and research; (l) the motions judge erred in relying on American authorities on certification at the federal

court and state court level, including at least one authority that had not been referred to by counsel, notwithstanding that the American tests on certification are completely different from the Ontario tests; (m) the motions judge failed to properly apply sections 5(4) and 7 of the Class Proceedings

Act, 1992; and (n) the motions judge committed errors in logic, principle and policy in his approach to the

certification of class proceedings under the Class Proceedings Act, 1992. THE APPELLANT requests this appeal be heard at Toronto, Ontario. KOSKIE MINSKY Barristers and Solicitors 900 – 20 Queen Street West Toronto, Ontario M5H 3R3 Kirk M. Baert (#30942O) Tel: 416-595-2117 Fax: 416-204-2889 Counsel for the plaintiff

MARKLE, MAY, PHIBBS 21st Flr. – 438 University Avenue Toronto, Ontario M5G 2K8 Eric Gillespie Tel: 416-593-4385 Fax: 416-593-4478 Solicitors for the plaintiff DAOUST VUKOVICH BAKERSIGAL BANKA LLP Barristers and Solicitors 20 Queen Street West, Suite 610 Toronto, Ontario M5H 3R3 Joanna Board LSUC #43973J Tel #: (416) 597-6888 Fax #: (416)597-8897 Solicitors for the plaintiff TO: OSLER HOSKIN & HARCOURT P.O. Box 50 1 First Canadian Place Toronto, Ontario M5X 1B8 Larry P. Lowenstein Joseph Starkman Tel: 416-862-6454 Fax: 416-863-6666 Solicitors for the defendant, Inco Limited AND TO: LENCZNER SLAGHT ROYCE SMITH & GRIFFIN 2600 – 130 Adelaide Street West Toronto, Ontario M5H 3P5 Alan Lenczner Ellen Sealey Tel: 416-865-9500 Fax: 416-865-9010 Solicitors for the defendant, Inco Limited

AND TO:

THE MINISTRY OF THE ATTORNEY GENERAL Crown Law Office – Civil 8th Floor – 720 Bay Street Toronto, Ontario M5G 2K1 Jack Coop Dennis Brown Tel: 416-326-4098 Fax: 416-326-4181 Solicitors for the defendant, Her Majesty the Queen in Right of Ontario

AND TO:

SISKIND CROMARTY IVEY & DOWLER 680 Waterloo Street P.O. Box 2520 London, Ontario N6A 3V8 Michael Peerless Tel: 519-672-2121 Fax: 519-672-6065 Solicitors for the defendants, the District School Board of Niagara, The Niagara Catholic District School Board

AND TO:

CASSELS BROCK & BLACKWELL Scotia Plaza 2100 – 40 King Street West Toronto, Ontario M5H 3C2 B. Robin Moodie Tel: 416-869-5734 Fax: 416-360-8877 Solicitors for the defendant, Regional Municipality of Niagara

AND TO:

STIEBER BERLACH GIBBS 900 – 130 Adelaide Street West Toronto, Ontario M5H 3P5 Steven Stieber Michelle Brodey Tel: 416-366-1400 Fax: 416-366-1466 Solicitors for the defendant, The Corporation of the City of Port Colborne

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