Hearing on tar ponds class-action lawsuit underway

SYDNEY — A class-action lawsuit is the only way Sydney residents and property owners who claim health issues related to the legacy of the Sydney steel plant and coke ovens sites will have their day in court, their lawyers argued in Nova Scotia Supreme Court on Monday.

By Nancy King
Cape Breton Post
Mon., June 21, 2010

The hearing to determine whether the action will be certified is being heard in Halifax but, in a first for the court, it is being broadcast via webcast from the judiciary’s website.

If approved by Justice John Murphy, it would be the first environmental class-action suit in Nova Scotia. There are four representative claimants.

The proposed suit would bring more than 400 claimants under one umbrella for a single trial. If the action is certified, it will represent everyone in the class, which would be about 30,000 people within a 5.6-kilometre radius of Victoria Road and Laurier Street.

Ray Wagner, a lawyer for the plaintiffs, told the court that the defendants — the provincial and federal governments — misinformed the community and withheld information about contaminants produced by the Crown corporations.

He said they mischaracterized the evidence in expert studies, and they chose not to perform proper research. "It is about the contamination of an entire community, it is about the dumping of hazardous and dangerous chemicals on the community, which we allege that both the defendants knew contained harmful substances, that they further failed to inform the community was and is toxic, so that the community could take appropriate action to protect themselves and make informed decisions to protect their families," Wagner said. "They want to restore their community to health."

Wagner said no scrubbers were used during Sydney Steel Co. operations and there were no effective pollution controls in the coking operation, although the technologies were available.

The group is seeking to have six to 12 inches of topsoil replaced on contaminated properties and also wants monitoring of medical effects. They are not looking for compensation for property devaluation.

Nova Scotia’s Class Proceedings Act sets out criteria that must be met in order for a class action to be certified. They include that there be a cause of action, an identifiable class to serve as a representative party raising a common issue, and they must present a workable method of advancing the class proceeding.

Scott Ritchie, lawyer for the plaintiffs, said class actions avoid unnecessary duplication in fact finding and analysis by the courts. The only alternative to the group action would be no lawsuit at all, he added, saying the plaintiffs couldn’t pursue claims individually. "Individual actions are simply not viable," he said.

Wagner noted the merits of the claim are not being considered at this stage.

All members of class seek same remedy, based on same facts and based on same law, Ritchie said. All that will be required will be a soil sample, supervised by the court, to determine if contamination is higher than what is considered appropriate.

The Cape Breton Post will provide updates on the proceedings today on our Twitter page — http://twitter.com/capebretonpost

The webcast can be viewed at http://courts.ns.ca/nssc_hearings_video_page.htm

nking@cbpost.com