Plaintiff pleased tar ponds lawsuit moving forward
One of the Sydney residents claiming she was harmed by pollution emanating from the steel plant and coke ovens sites says she’s happy a Nova Scotia Supreme Court justice has said he will certify their case as the province’s first environmental class-action lawsuit.
By Nancy King
Cape Breton Post
Fri., Jun. 25, 2010
Neila MacQueen — who is a representative plaintiff in the suit along with Joe Petitpas, Ann Ross and Iris Crawford — said Friday it’s been a long road getting to this point. The lawsuit against Ottawa and the province was filed six years ago. No defences have been filed and discovery hasn’t yet taken place.
"I still think there is a lot of work to be done, and it is a huge step forward," MacQueen said. "It’s high time now that something is being done to help the people in Sydney and a lot of money is being wasted litigating. It’s delay and deny."
MacQueen, who is a non-smoker, survived a battle with lung cancer. She lives on Dorchester Street in Sydney’s north end.
"It’s been a very difficult road, but I’m still going to continue and it will be rewarding in the end, I hope," she said.
They are seeking some financial compensation and a medical monitoring fund.
Justice John Murphy issued a partial ruling at the conclusion of four days of legal arguments. While he said he will certify it as a class-action based on some of the causes of action alleged by the plaintiff, he also said he will only do so once the proposed class — residents and property owners within a 5.6-kilometre radius of Victoria Road and Laurier Street — is significantly narrowed. Residents will also be required to have lived in the new area for a longer period than the three years the plaintiff proposed.
Ray Wagner, a lawyer for the plaintiffs, said the new boundaries will probably apply to the core of the city of Sydney, including the neighbourhoods of Whitney Pier, Ashby and the north end. He said given Sydney’s topography, the contaminants tended to follow water courses moreso than wind patterns, and they will consider that as they try to narrow the boundaries. He said they will try to move quickly.
"We haven’t drawn the actual map yet, we have a pretty good idea how we’ll draw it," he said. "It’s a lot of science and a little bit of art."
Murphy will decide whether it’s acceptable after hearing from all of the parties. Once Murphy approves the boundaries, the next phase will involve discovery and then a trial looking at the issues common to the class, which could still be several years away.
"We’re really looking forward to digging down into the document disclosure because now ... if this case if certified by Justice Murphy, then they have an obligation to file their defences and produce their documents and we’ll have an opportunity to question the people that were involved in discoveries and we think that that process will reveal a lot to establishing liability in this case," Wagner said.
He added he’d like to see the provincial and federal governments work with them to define the new boundaries rather than resort to litigation at every stage.
Murphy said he was willing to continue to work with the parties in the case management process, which he has already been involved with for a year.
Murphy is well aware of how long it’s taken the case to advance to the certification stage, Wagner said, and is committed to seeing it proceed as expeditiously as possible. Murphy has had to wade through thousands of pages of written materials such as briefs, cited cases and affidavits.
"He does not want to see another six years. He wants to move this matter as fast as we can through to a resolution, one way or another," he said.
The fact that Murphy is willing to certify it as the first environmental class action in the province is an important milestone in the evolution of class-action law in Canada, Wagner said, noting several recent cases relating to Agent Orange in other provinces were denied.
Wagner said the financial arrangement he has with his clients is confidential, but noted that generally class-action lawsuits are very expensive and are often taken on by firms on a contingency basis, because claimants generally can’t afford to pay the legal fees associated with the complex proceedings.
About 400 plaintiffs have signed on to the case to date.