Certification Kaufmann

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Court file no.: 12023 /01

ONTARIO SUPERIOR COURT OF JUSTICEBETWEEN: WILFRED ROBERT PEARSON Plaintiff - and INCO LIMITED, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CORPORATION OF THE CITY OF PORT COLBORNE, THE REGIONAL MUNICIPALITY OF NIAGARA THE DISTRICT SCHOOL BOARD OF NIAGARA, and THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD Defendants AFFIDAVIT OF WOLFGANG KAUFMANN Sworn January 16, 2002

I, WOLFGANG KAUFMANN, of the Town of Whitby, in the Region of Durham, MAKE OATH AND SAY:

1.

I am a partner with the law firm Daoust Vukovich Baker-Sigal Banka LLP, solicitors for the plaintiff, and as such I have knowledge of the matters to which I herein depose, save and except where I have been advised of the same, in which case I believe such information to be true.

A. DEFINITION AND SIZE OF THE PROPOSED CLASS 2. As set out in paragraph 10 of the fresh as amended statement of claim, the proposed class is defined as follows: A. All persons owning or occupying property since March 26, 1995 within the area of the City of Port Colborne bounded by Lake Erie to the south, Neff Road/Michael Road to the east, Third Concession to the north and Cement Road/Main Street West/Hwy 58 to the west, or where such a person is deceased, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person; B. All students attending schools operated by the District School Board of Niagara or the Niagara Catholic District School Board since March 26, 1995 within the area of the City of Port Colborne bounded by Lake Erie to the south, Neff Road/Michael Road to the east, Third Concession to the north and Cement Road/Main Street West/Hwy 58 to the west, or where such a person is deceased, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person; and C. All living parents, grandparents, children, grandchildren, siblings, and spouses (within the meaning of Section 61 of the Family Law Act) of persons defined in paragraphs A and B above, or where such a family member has died thereafter, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person (hereinafter referred to as Class Members or the Class).2

3.

The boundaries of the Class represent the approximate boundaries of the City of Port Colborne. Elevated levels of nickel contamination above Ontario background levels (MOE Table F Guidelines) have been found throughout the entire area defined by the Class. Elevated levels of nickel contamination above MOE Table A Guidelines have also been found throughout large portions of the area defined by the Class.

4.

The current population of Port Colborne is estimated at 18,500. Approximately 17,000 individuals reside within the boundaries defined by the Class. In addition, the Class would also include former residents of Port Colborne who lived in the community after March 26, 1995, but have since moved away. It would also include owners of property within the geographic boundaries set out above, students and former students, and Family Law Act claimants, some of whom may not live within the City of Port Colborne. Consequently, the total number of Class Members is estimated to be approximately 20,000.

B. THE ROLE OF INCO AND PUBLIC AUTHORITIES 5. As is set out in more detail in the affidavit of Dr. Thomas Burnett sworn January 15, 2002 and elsewhere, Inco Limited (Inco) began to operate a large scale electrolytic nickel refinery in Port Colborne, Ontario in 1918 (the Refinery).

6.

I have spoken personally to dozens of Class Members from across the area defined by the Class regarding the Refinery and its operation. They have provided me with their own

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knowledge, and have also informed me of information obtained from additional Class Members with whom they have consulted.

7.

I have also consulted with Mr. Emil Kaminski, who was employed by our law firm as a researcher from April to September, 2002. Mr. Kaminski formally interviewed dozens of Class Members from all across the area defined by the Class, and has spoken directly with hundreds more.

8.

I have also consulted with Ms. Ellen Smith, a Port Colborne resident for the past 12 years and her husband Mr. Craig Edwards, who has lived in Port Colborne all his life. They and their two sons live in a home in the highly contaminated Rodney Street area, and have been centrally involved in this issue both individually and as part of the community group Neighbours Helping Neighbours. They are also extremely knowledgeable, having read dozens of reports, attended virtually every public meeting and open house held on this subject, and having spoken to hundreds of Class Members from all parts of Port Colborne.

9.

I have also reviewed many of the documents referred to in paragraphs 14 and 15 below. Information that I have obtained from all of these sources is incorporated into the balance of this affidavit.

10.

Historically, the presence of Inco and its impact on the City of Port Colborne has been well

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known throughout the entire community. Up until 1984, Inco was widely recognized by Class Members as the largest industry, and largest employer in Port Colborne. Since 1984, Class Members have generally been aware that the scale of Incos operations have been reduced substantially, but that the Refinery still continues to operate at a significant level.

11.

As a heavy industry using hazardous processes and substances, virtually all Class Members also appear to have known that if the Refinery was not operated or supervised properly, there was the potential for serious harm or damage to occur to Class Members.

12.

Class Members were also aware and/or have believed that Her Majesty the Queen in right of Ontario (HMQ), through its various arms such as the Ministry of the Environment (MOE) has inspected, approved, studied and responded to complaints about the Refinery. They have also known that the Region of Niagaras Public Health Department (Public Health Officials) have been responsible for overseeing the Refinerys operations to insure that the health of Class Members was protected. They have also known that the City of Port Colborne (the City) through its bylaws and zoning has been in a position to insure that Class Members health and property was protected.

13.

Virtually all Class Members have expected and relied on Inco, HMQ, Public Health Officials and the City to have operated and/or supervised the operation of the Refinery properly. They have also expected and relied on Inco, HMQ, Public Health Officials and the City to continue to

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operate and/or oversee the Refinery properly.

14.

However, as a result of Inco, HMQ, Public Health Officials and the City not operating and/or supervising the operation of the Refinery properly, Class Members have in fact suffered losses and damages as set out below.

C. REPRESENTATIONS BY PUBLIC AUTHORITIES 15. Since 1997, in addition to their roles of supervising the Refinery, both HMQ and the Region of Niagaras Medical Officer of Health (MOH) have been advising Class Members that: (i) (ii) emissions from the Refinery do no pose any immediate risk, or any risk to human health, and that one of the substances that Class Members have been and are still being exposed to is nickel, and not the known human carcinogen nickel oxide.

16.

These representations were made in and through scientific reports and studies prepared by, in conjunction with, or for HMQ and the MOH. These two representations were then repeated by HMQ and MOH in press releases and in letters to the public.

17.

More specifically, HMQ has been advising that there is no risk or no immediate risk to health through, at minimum, the following reports, studies and press releases: Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: May 1997, MOE Phytotoxicology Soil Investigation: INCO - Port Colborne (1998), MOE6

Phytotoxicology Soil Investigation: Port Colborne, 1999, MOE Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: January 2000, MOE Soil Contamination in Selected Port Colborne Woodlots: 2000, MOE Phytotoxicology Soil Investigation: School Yards and Beaches, Port Colborne (April 2000), MOE Fact Sheet: Environmental Sampling program Confirms Metals Do Not Pose a Health Risk at Port Colborne Schools; January 25, 2001, MOE Soil Investigation and Human Health Risk Assessment for the Rodney Street Community, Port Colborne, March 2001, MOE Letter to Rodney Street Community Residents; May 2, 2001, MOE Phytotoxicology 2001 Investigation: Resampling of Soil at Humberstone School, and Arsenic in Soil at All Schools - Port Colborne, MOE Phytotoxicology 2001 Investigation: Resampling of Soil at St. Therese Catholic School, Port Colborne, MOE Letter to Rodney Street Community Residents; June 6, 2001, MOE Letter to Port Colborne Residents and Frequently Asked Questions; July 16, 2001, MOE

18.

The MOH has been advising that there is no risk or no immediate risk to health through, at minimum, the following reports, studies and press releases: Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: May 1997, MOE Phytotoxicology Soil Investigation: INCO - Port Colborne (1998), MOE Phytotoxicology Soil Investigation: Port Colborne, 1999, MOE Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: January 2000, MOE7

Soil Contamination in Selected Port Colborne