Sysco lawsuit gains credibility

An attempt to sue provincial and federal governments over the dumping of steel industry pollutants on Sydney cleared a critical hurdle this week when Nova Scotia Supreme Court Justice John Murphy indicated that the case “has the potential for a class action.” Some more time will elapse before it’s confirmed that the case will definitely proceed, in light of whatever limitations in scope are eventually attached. But the six years already invested by initiating lawyer Ray Wagner and his first clients testifies to the dogged persistence that’s required to see such a project through.

Cape Breton Post
Fri., Jun. 25, 2010

Sydney - About 400 plaintiffs are signed up at this point, and four of that group would be representative plaintiffs in the proceedings. The number could grow significantly once the parameters of the case are officially defined – provided, of course, that large numbers of qualified potential plaintiffs eventually see it as worth their while to join. No plaintiff is likely to get rich from this.

The merits of certifying Nova Scotia’s first environmental class action suit were contested this week in Halifax, with proceedings available for live viewing via Internet webcast. Class action is a relatively new legal avenue for Nova Scotia, enabling a defined group with reasonably similar grievances to bring a collective case to court. The court has to certify a class action before the merits of the case can be explored in detail.

In the Sysco case, plaintiffs proposed a qualifying radius of 5.6 kilometres around Victoria Road and Laurier Street, and residency of at least three years. Government lawyers contended that this broad swath, taking in part of Westmount, could include up to 50,000 people and entail potential settlement costs of tens of millions of dollars – perhaps $100 million. They also argued that the group would be far too diverse to form a proper class for legal purposes.

The plaintiffs say those numbers are exaggerated and that only a modest settlement is sought. With two proposed sub-classes of plaintiff – property owners and residents, whose basis for claim would be somewhat different – the action seeks remediation of contaminated soil, a medical monitoring program and some financial damages.

Murphy indicated that the defining radius will have to shrink significantly and the qualifying length of residency will have to increase. He also has to refine the basis of action for each sub-class, and he’ll work with the two sides to shape the case into a manageable whole.

The likelihood of certification will bring a new level of credibility and public attention to the case. Immediately noticeable is how much the plaintiffs have already limited the scope of their claims. Just how the health effects of steel industry pollution would play out in a full-fledged trial isn’t clear at this point but it’s significant that the plaintiffs are not claiming personal injury despite widespread belief that Sydney’s industrial contamination – specifically over the 30-some years of government ownership of the industry – is a major cause of poor health outcomes ranging from birth defects to cancer.

A federal lawyer claimed that in the absence of any personal injury claim it is hard to see how residency in the area would be basis for a suit. The plaintiffs’ demand for medical monitoring implies that health effects would be contested at trial, though perhaps not with the ferocity that would attend if huge personal injury damages were at stake. Individuals could still sue on health grounds.

Despite an abundance of opinion on the subject in the community, the human health effects from steel industry pollution in Sydney have never been definitively established. It is a source of lingering bitterness that around the time governments withdrew support from the much-maligned Joint Action Group on the Muggah Creek cleanup, plans for a so-called cohort study, analyzing some 10,000 occupational and medical files of steelworkers, were also scrapped.

Those wanting to pursue the health angle to its practical conclusion, as far as the evidence would go, were convinced that the epidemiological work was closing in on the links between pollution and health in Sydney. But by that time JAG was labouring under a reputation as an ineffective debating club obsessed with studies at the expense of action and there was little public sympathy for the complaint that governments were ending the health investigations at a peculiarly convenient time.

The class action suit does not promise to provide those missing answers. But it does offer some potential satisfaction for those who continue to believe that the concerns of people living on most intimate terms with big industry and its aftermath were never given the objective consideration that they deserved despite protestations from many quarters that in dealing with the legacy of steel the interests of the community always came first.