Inco has been ordered to pay $36 million to past and present property owners in Port Colborne, for lost property value due to historic nickel contamination. None of the contamination occurred after 1984, and Inco complied with all applicable laws during the operation of its refinery. Nevertheless, Justice Henderson ruled that Inco is strictly liable to the Port Colborne property owners“as a result of the failure to prevent the escape of a dangerous substance (Rylands v. Fletcher).” The neighbourhood claims are not statute barred, he said, because the neighbours did not know how much the nickel contamination would affect their property values until after public announcements in September 2000. A Ministry of the Environment–ordered cleanup of the area, in accordance with a community-based risk assessment, was also no bar to the lawsuit, since not all nickel in the soil would be removed by this cleanup.
Inco will undoubtedly appeal this hugely important decision. If it stands, it will open the door to similar lawsuits across the country against industries and municipalities for historic contamination. We will provide more details next week.
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Timothy Petrou writes:
The recent decision in Ontario's Smith v. Inco has caused quite a stir in Canadian environmental law. The case sets new precedents for the doctrine of strict liability and class action proceedings, and it will surely breathe new life into toxic tort litigation in Canada. The West Coast Environmental Law Association has an excellent summary of some of the implications of the case that can be found here :http://bit.ly/aH4f3L
My interest in this case was peaked while reading the decision and noting that Henderson J. seems to exhibit the tell tale signs of an eco-pragmatist in his reasoning. Eco-pragmatism as Daniel Farber puts it, is an environmental decision making tool "to make intelligent judgments in hard cases." Two hallmarks of eco-pragmatism are hybrid cost-benefit analyses and an environmental baseline. The hybrid cost-benefit analysis is essentially a feasibility analysis that uses a cost-benefit analysis for determining what is feasible. The environmental baseline is a default presumption in favour of environmental protection. (see Daniel A. Farber, "Eco-Pragmatism." 1999 for an in depth description of eco-pragmatism)
Looking at the Henderson J. decision we see reference to reasonable use of land, reasonable limitation periods, and reasonable causes of action. The precedents this case seem to overturn, or at least redefine, are interpreted in a new way by the reasonable person. Inco claimed that their use of the land was reasonable but the Court did not agree. This decision suggests that Inco should have prevented risks to nearby properties when feasible. It became feasible, if not obligatory, once Inco's activities resulted in a negative cost burden to the detriment of the property owners. With respect to an environmental baseline, in reading this decision it would be difficult not to notice the primacy of environmental protection in the reasoning. Henderson J. even goes so far as to state that:
"Objectively, even if the nickel accumulation in the soil does not affect human health, the accumulation of a foreign substance on a property owner's land that causes a loss of property value is material." at paragraph 88
Culpability is presumed when the environment is being degraded irrespective of human health. The degradation is measured by a loss of property value.
So my question, has Smith v. Inco informed the mind of the "reasonable person" in environmental law such that she now contemplates what is reasonable through the lens of an eco-pragmatist?
Can you still sign up for this class action suit and how would you go about it. My mother owned a home on the west side very close to the canal. She sold her home in July 2001
Hi, Eileen, try http://www.koskieminsky.com.
Best wishes
Dianne
any updates?
I have land in the affected area and wondering when/if there is going to be a payout.
Eugene,
The appeal has to be decided first.
Dianne
Assuming that the suit was not done pro bono, what will be left of the amount that is actually dispersed?
Sorry, Eugene, you\’ll have to ask the lawyers handling the case.
Best wishes
In my opinion, it is very likely, that the information shared among the residents pertaning to this case, has falling to a minimal. Excuse my forwardness, but It's hard to believe that the people are truely informed. I have read all the information provided to the resisdents on the East side and still, I am seek answers. I feel, the impact that this misfortune has brought onto the health of the poeple who live here, is far more serious, then any one has taking time to consider. What I fail to comprehend, is why does INCO fail to provided the public ,with information pertaining to the effects of their situational cohabitation. In short, there are long terms effects that this company has created, not only on it's employees,but also the people who live in it's derect emvironment.
I believe people should seek answers, but so far they are misinformed as to which questions they should be asking. Further more I feel the real question should be, what is it that Vale Inco plans to do once this case has come to a finish? Thus far in history Inco has created serious health issues with their employees, and the resisdents in the area, do they plan to create a better working and living envornment or simply continue on it's current path?
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