Proponents of tar ponds class-action lawsuit win partial victory

SYDNEY — The effort to certify a class-action lawsuit covering people who suffered from contamination associated with the operation of the Sydney steel plant and the coke ovens site earned a partial victory Thursday.

By Nancy King
Cape Breton Post
Thurs., June 24, 2010

Six years after the case was first launched and after four days of legal arguments this week, Nova Scotia Supreme Court Justice John Murphy concluded the matter will be certified as a class action on some causes of action sought by the plaintiff against the province and Ottawa, but only for people who owned property or resided within a much smaller geographic boundary than the one proposed by the plaintiff. There would also have to be a longer residency requirement. "There is potential for a class action here, but not the way it’s been advanced so far," he said.

Murphy said he is now willing to continue to work with both sides in the case management process to move the matter forward and come up with a class definition that is less broad and more manageable. "There are procedural issues to be addressed with council to determine whether there will be certification within terms different from those proposed and whether the parties want to pursue that alternative, or whether they want to adopt some other course of action," he said.

The class proposed by the plaintiffs — anyone with at least three years of exposure within a 5.6-kilometre radius of Victoria Road and Laurier Street — could have been as large as 50,000 people. Murphy called that unworkable.

A class action could be certified on several causes of action — for both residents and property owners on the basis of breach of fiduciary duty, strict liability and nuisance, and for property owners for negligence. Murphy hasn’t yet determined whether an action can proceed with new class boundaries for negligent and intentional battery or trespass for both groups or for negligence for residents.

The four representative plaintiffs — Neila MacQueen, Joe Petitpas, Ann Marie Ross and Iris Crawford — are suitable, Murphy said.

The plaintiff’s litigation plan can be approved, but would have to be modified to replace the amended statement of claim and to reflect Murphy’s conclusions. Statutes of limitations do not stand in the way of certification at this stage of the proceedings, Murphy said.

Murphy said it remains to be determined what common issues, such as risk of harm, would be part of a class-action proceeding, and said it’s still a work-in-progress. He reserved the right to give reasons for his conclusions.

Earlier in the day, Ray Wagner, lawyer for the plaintiff, raised the often-repeated metaphor, "No smoke, no baloney," speaking of the reliance the area’s economy had on the steel plant. Wagner noted the people who breathed in that smoke had no idea what contaminants were in it. But he argued that the federal and provincial government did know the dangers of the emissions from the sites while they operated them, but misinformed the community and refused to clean up their messes. "We seem to have forgotten that there are real people with a real problem in the city of Sydney," Wagner told the court. "We’re here as a result of the contamination of a community, the dumping of hazardous and dangerous chemicals onto the community and their lands."

Wagner referred to reports dating back to the 1960s about environmental conditions and the presence of pollutants in Sydney. He noted a 1970 study indicated new pollution controls could substantially reduce dust emissions.

The hearing was heard in Halifax but broadcast via the Internet. About 400 people have signed up as plaintiffs to date.