Court dismisses Inco [Port Colborne] lawsuit – by Christine Dobby (National Post – October 8, 2011)

The National Post is Canada’s second largest national paper.

The Ontario Court of Appeal has dismissed an environmental class-action lawsuit and reversed an award of $36-million to a group of Port Colborne residents who claim their property values took a hit because of emissions from a nearby Inco Ltd. refinery.

In a decision released Friday, a three-member panel of the court unanimously ruled that the plaintiffs did not prove that Inco was liable to them. Even if they had succeeded on that front, the court said, the plaintiffs failed to show any actual loss to Port Colborne’s property appreciation rates.

On top of throwing out the claims, the court ordered the plaintiffs to pay $100,000 in costs to Inco.

In one of the first class-action lawsuits to go to trial, Judge Joseph Henderson of the Ontario Superior Court of Justice on July 6, 2010, ordered Inco to pay three subgroups of plaintiffs a total of $36-million in damages.

Now owned by Vale Canada Ltd., Inco operated a nickel refinery in the small town on the north shore of Lake Erie from 1918 to 1984.

The Court of Appeal said Inco complied with contemporary environmental and regulatory rules, but emissions from the 500-foot smoke stack at the refinery led to a build-up of nickel particles in the soil in the surrounding area.

Although there was no suggestion of threat to human health, the issue began to attract public attention in 2000 when the Ministry of the Environment released the results of a phytotoxicology study, the court said in its decision.

This report on the effects of nickel levels on plant life identified “hot spots” where the levels were very high. The Ministry eventually ordered Inco to “remediate” 25 properties with particularly high levels, which involved removing the soil to a certain level and replacing it with new soil. This was completed by 2004, although Ellen Smith, the representative plaintiff, would not allow Inco to remediate her land.

The class of claimants included everyone who owned residential property in an area that covers most of Port Colborne, approximately 7,000 properties. They alleged that because of the public health concerns the nickel deposits provoked, their property values did not increase at the same rate as comparable values in other small cities nearby.

The Court of Appeal said the plaintiffs did not prove Inco was liable to them.

“People do not live in splendid isolation from one another. One person’s lawful and reasonable use of his property may indirectly harm the property of another or interfere with that person’s ability to fully use and enjoy his or her property,” the court said.

It said the plaintiffs’ nuisance claim failed because they could not show “actual, substantial physical damage” to their property that posed some risk to the residents’ health or well-being.

For the rest of this article, please go to the National Post/Financial Post website: