Company didn't have to warn residents: Appeal Court

By Tanya Collier Macdonald
Cape Breton Post
Wed., Mar. 28, 2007

SYDNEY - The Nova Scotia Court of Appeal agrees governments may still be responsible for not warning residents about the dangers of living near a toxic waste site. However, it disagrees a private company, Ispat Sidbec Inc., shares the blame.

The appeal court stated in a decision released Tuesday that Justice David MacAdam erred in his July decision when he didn't strike the resident's claim that Ispat Sidbec Inc. should have acted in the best interest of surrounding communities. The company successfully argued the law does not require it, as a private corporation, to publicly disclose information about its operations.

"It is true that the (residents) were vulnerable to the decisions Ispat made as to how it operated the plant and ovens and what it did with information it had relating to that operation," the judges wrote. "While this characteristic is often found in fiduciary relationships, vulnerability is not a defining aspect of a fiduciary relationship."

The judge stated there is no suggestion that Ispat and the (residents) were anything but "strangers. Not only were they strangers, Ispat was obliged to act in the best interests of others, its shareholders."

The judge did allow Canada and Nova Scotia's level of responsibility to be argued at trial stating governments may have held a relationship with the community that amounts to a fiduciary duty.

"It may also be arguable that when Canada and Nova Scotia provided information to the (residents) concerning their health in particular, and that it was safe to live on their land, a duty of loyalty was engaged."

The appeal judges'decision supports one of the first major steps for a precedent-setting class-action lawsuit for residents living or have lived next to the Sydney tar ponds and coke oven sites."

Listed as plaintiffs in the case are residents Neila MacQueen, Joe Pettipas, Ann Marie Ross and Iris and the late Carl Crawford.

Defendants are Hawker Siddeley Canada Inc., Sydney Steel Corp., Nova Scotia government, Canadian National Railway Company, the Canadian government and Domtar Inc.

The residents are holding government and the steel companies liable for battery, nuisance, trespassing, negligence, harm and injuries, family losses, as well as aggravated, punitive and additional damages.

The allegations haven't been proven in court.

It's expected the civil case could take between two and six years to conclude and millions of dollars will likely be sought as compensation for the claimants.

Ray Wagner, who represents the defendants, said he will be before Justice MacAdam Friday to ask for a new court date to have the lawsuit certified as a class-action case.