Thursday, July 7, 2011 Link To Herald The Halifax Herald Limited

N.S. court OKs tar ponds class action
Thousands who lived near site are eligible to join case


Thousands of people who lived near the Sydney tar ponds when the steel mill was running or own homes there now can join a class action that was certified by the courts Wednesday.

"This is a wonderful decision for the people of Sydney who have been spending seven, long, hard-fought, expensive years trying to gain access to the courtroom," said Ontario lawyer Scott Ritchie, co-counsel for the representative plaintiffs.

The four representative plaintiffs, Neila MacQueen, Joseph Pettipas, Ann Marie Ross and Kathleen Iris Crawford, are lifelong residents of the Whitney Pier and Ashby areas. They have been trying to get a class action against the provincial and the federal governments off the ground since 2004.

On Wednesday, Justice John Murphy of the Nova Scotia Supreme Court ruled the case had a "community basis" and was "too unwieldy and too expensive for individual claimants" to mount.

But, as he said after hearings last year, he would only approve certification if the plaintiffs reduced the physical area to be covered by the class action and increased the residency period for potential claimants.

The plaintiffs’ original boundary proposal that encompassed a 5.6-kilometre radius was too broad, Murphy said.

On Wednesday, he tweaked their latest proposal so the class action will include properties in the Ashby and Whitney Pier areas, as well as the north end of Sydney, essentially encompassing a three-kilometre area around the tar ponds site. The judge did not approve inclusion of the south end of Sydney.

He granted the plaintiffs’ request to include residents, as well as former steel plant workers, who lived in the defined area for seven or more years between 1967 and 2000 when the steel mill was in operation. Anyone owning a home or property within the area at the time the class action certification order was signed is also eligible to join.

"We’re probably talking 15,000 to 20,000 people that may be able to seek compensation," said lawyer Ray Wagner, co-counsel for the four representative plaintiffs.

"That doesn’t mean that they’re necessarily going to be successful. People will have to . . . substantiate their claim."

The plaintiffs are seeking compensation for years of exposure to toxins, money to establish a medical monitoring system to track the risks posed by toxic emissions and compensation for property damage, which the plaintiffs claim was caused by pollution from the former Sydney steel plant and coke ovens, Wagner said.

"They want . . . the contaminants that were put on their properties (allegedly) by the defendant . . . removed so they can live in a healthy environment," he said.

A health monitoring system would help the plaintiffs and health professionals track medical problems related to the site, Wagner and Ritchie told reporters.

The province and the federal government opposed the application for certification.

None of the allegations have been proven in court and Murphy didn’t rule on the merits of the case.

But he said "there is obviously an arguable case here given the amount of study and controversy that has taken place over the last approximately 45 years with respect to the defendant’s operations in Sydney and the effect those operations may have had on people in the neighbourhood and on various neighbourhoods and on their properties."

The tar ponds site contains waste from a century of steelmaking and is undergoing a $400-million remediation.