Proposed Class Action Certification Dismissed

On July 15, 2002, Justice Ian Nordheimer of the Ontario Supreme Court of Justice dismissed a certification motion in a proposed class action brought by Wilfred Pearson against Inco Limited, the Crown, the City of Port Colborne, the Regional Municipality of Niagara and the Niagara District school boards. The claim relates to the operation by Inco of a refinery in the Port Colborne area since 1918. Pearson sought $750 million in damages on behalf of a proposed class of some 20,000 people in relation to alleged environmental, personal injury and property damage claims.

Justice Nordheimer found that there were 13 common issues, and that the claim failed to disclose a reasonable cause of action against the region, the city or the Crown in respect of a failure to enforce the Environmental Protection Act. In dismissing the certification motion against Inco and the other defendants, the judge found that there was no properly identifiable class and that a class proceeding was not the preferable procedure. The court also found that the proposed representative plaintiff was inadequate.

The plaintiff was represented by Kirk Baert of Koskie Minsky, Eric Gillespie of Markle, May, Phibbs and Joanna Board of Daoust Vukovich Baker-Sigal Banka LLP. Inco was represented by Larry Lowenstein and Joseph Starkman of Osler, Hoskin & Harcourt LLP, and Alan Lenczner, Q.C., of Lenczner Slaght Royce Smith Griffin. Jack Coop and Lynn McArdle of the Attorney General’s Office, Ontario represented the Crown. B. Robin Moodie and Thomas Donnelly of Cassels Brock, & Blackwell LLP represent the region, and Steven Stieber and Michelle Brodey of Steiber Berlach Gibbs represent the city. Michael Peerless and Michael Eizenga of Siskind Cromarty Ivey & Dowler LLP represent the school boards.

The decision has been appealed.