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 RICHARD LINDGREN Sworn January 15, 2002

I, RICHARD LINDGREN, of the Township of Frontenac Islands, in the County of Frontenac, MAKE OATH AND SAY:

1.

I am a staff lawyer with the Canadian Environmental Law Association, a position that I have

held since my call to the bar in 1988, 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.

2.

In addition to practicing law, for the past ten years I have also taught courses in

Environmental Law at the Faculty of Law of Queens University in Kingston, Ontario, and in Environmental and Resource Studies & Management and Environmental Law at Trent University in Peterborough, Ontario.

The Canadian Environmental Law Association (CELA) 3. CELA is a non-profit public interest organization founded in 1970 for the purposes of:

promoting the use of the legal system to protect the environment; advocating citizen participation in environmental decision-making; and improving the legal mechanisms for environmental planning and management.

4.

Since 1978, CELA has been funded and operated as a specialty legal aid clinic under the

Ontario Legal Aid Plan, and has provided legal services in environmental law to individuals, citizens' groups, and public interest organizations which would otherwise not have access to counsel.

5.

CELA's lawyers frequently represent individuals, citizens' groups, and public interest

organizations in proceedings before courts, tribunals, boards and commissions with respect to a broad variety of environmental issues. CELA has represented litigants, as well as being granted leave to intervene both as a friend of the court and as a party, at all levels of court in Ontario including the Supreme Court of Canada. Recent cases before the Supreme Court that CELA has participated in have included:
2

(a) (b) (c) (d) (e) (f) (g)

Friends of the Oldman River Society v. Canada (Minister of Transport) (1992), 88 D.L.R. (4th) 1 (S.C.C.); R.v. Ellis Don Limited and Morra (1992), 92 D.L.R. (4th) 288 (S.C.C.); Canadian Pacific Ltd. v. Her Majesty the Queen in right of Ontario (1995), 125 D.L.R. (4th) 385 (S.C.C.); The Grand Council of the Cree of Quebec and Cree Regional Authority v. HydroQuebec and Attorney General of Quebec (1995), 112 D.L.R. (4th) 129 (S.C.C.); Attorney General of Canada v. Hydro-Quebec and the Attorney General of Quebec (1997), 24 C.E.L.R. (N.S.) 167 (S.C.C.); 114957 Canada Ltee (Spraytech, Societe darrosage) v.Hudson (Town), [2001] S.C.J. No. 42 (QL)(S.C.C.); and Berendsen v. Ontario, [2001] S.C.J. No. 57 (QL)(S.C.C.).

6.

CELA also has a lengthy history of undertaking law reform and community education

activities intended to promote environmental protection through the legal system. Since 1970, CELA lawyers, researchers, and board members have produced over 400 legal briefs and publications to promote law reform.

Attorney Generals Advisory Committee on Class Action Reform 7. As part of this work, since the late 1970's CELA has been publicly advocating for reforms

that would allow litigants to advance environmental claims through class proceedings. In 1978, the first version of a draft Environmental Bill of Rights (EBR) that CELA prepared and supported

included a class proceedings mechanism. However, the need for such a mechanism in the EBR was obviated by the enactment of the Class Proceedings Act, 1992 (the CPA). 8. Instead, CELA became directly involved in the creation of the CPA. In 1989-1990, I

participated as one of the members on the Ontario Attorney Generals Advisory Committee on Class Action Reform (the Advisory Committee). The Advisory Committee proposed the structure and draft legislation that became the CPA.

9.

CELA was specifically asked to participate in order to ensure that the needs of

environmental litigants would be properly addressed when class proceeding were introduced to this province. The Advisory Committee was able to reach a consensus on many issues, and the final version of the CPA incorporates almost all of the Advisory Committees key recommendations. Attached and marked as Exhibit A is a copy of excerpts from the Report of the Attorney Generals Advisory Committee on Class Action Reform dated February 1990.

10.

Subsequent to sitting on the Advisory Committee, in the early 1990's I also participated in

the EBR Task Force as part of CELAs ongoing effort to provide access to justice for matters related to the environment.

The Port Colborne Claim 11. CELA has been aware of the claim brought against Inco et al. from its inception, and at

times has assisted and advised counsel for the plaintiff regarding certain aspects of the case. As a

result, I am personally familiar with this case. I have also spoken with Wolfgang Kaufmann, a partner with the firm acting for the plaintiff, and have been advised of additional information that is included in the following paragraph. 12. Based on my knowledge of the purposes the Class Proceedings Act, 1992, and on my

knowledge of environmental civil actions generally, and on my knowledge of the Port Colborne matter, this action would in my opinion appear to be particularly suited to being advanced as a class proceeding for the following reasons:

(a)

There are large numbers of potential plaintiffs (20,000 or more).

(b)

Their claims all arise from the same or similar facts, and against the same defendants.

(c)

While Inco has acknowledged responsibility for nickel, copper and cobalt contamination in Port Colborne, there remain complex issues of liability which are common to all of the potential plaintiffs.

(d)

A small number of potential plaintiffs appear to have large damage claims, however, the vast majority appear to have damage claims that are modest.

(e)

Actions of this nature frequently require the expenditure of large amounts of time and money on expert witness fees and other disbursements. Furthermore, very large amounts of legal time are normally required. From our experience in

environmental litigation, these types of costs make claims such as this prohibitively expensive for almost every potential plaintiff to pursue as an individual action. . (f) Actions of this nature require a level of specialization, knowledge and experience on the part of legal counsel that most potential plaintiffs almost certainly do not have access to. The likelihood of locating counsel to represent hundreds, or thousands of individual claimants is low.

(g)

Contingency fee arrangements as permitted under the CPA would not be available if the action was not advanced as a class proceeding.

(h)

Access to the Class Proceedings Fund would not be available.

(i)

There are potentially hundreds, if not thousands of individual claims. Should these come before the Court as individual actions, the burden on the court system would be immense.

(j)

The time involved if documents had to be produced and each individual litigant had to be discovered would be immense.

(k)

Since this claim was launched, the scope of study and analysis by the defendants in Port Colborne has expanded considerably. For example, as a result of work done by the plaintiff, public authorities and Inco are now investigating the issue of contamination inside homes in Port Colborne for the first time.

(l)

Since this claim was launched, major studies that had previously been promised (eg. regarding health and property values) are now underway.

(m)

In addition, new studies by entities other than the parties to this action have been announced. For example, as a result of awareness raised by the initiation of this action the United Steel Workers of America has announced a study of current and former Inco workers to determine what health risks they may be facing now that more information is coming to light.

(n)

This claim has also been well publicized outside of Southern Ontario. As a result, it is creating a broader awareness both with the public and with industry of the issue of historic contamination, and the need to address problems such as those found in Port Colborne in a proactive manner.

13.

For these reasons alone, it would appear that the three primary goals that we as members

of the Advisory Committee identified for class actions, (a) access to justice, (b) judicial economy, and (c) behavior modification, are all met in this case.

14.

I make this affidavit in support of the plaintiffs motion for certification and for no improper

purpose.

SWORN BEFORE ME at the City of Toronto, this 15th day of January, 2002 ____________________________
Commissioner for Taking Affidavits

) ) ) )

_________________________ RICHARD LINDGREN