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Court File No.: 12023/01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
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 THENIAGARA CATHOLIC DISTRICT SCHOOL BOARD
Defendants
Proceeding under the Class Proceedings Act , 1992
AFFIDAVIT OF DAVE LEONARD McLAUGHLIN
I, DAVE LEONARD McLAUGHLIN, of the City of Toronto, Province of Ontario,
do hereby make oath and swear as follows:
1. I have been an employee of the Ontario Ministry of the Environment (the “MOE”)
working in the area of phytotoxicology since 1977. I have personally conducted soil
and vegetation investigations in the Port Colborne area since 1977. I am currently
the Standards Development Branch’s Senior Project Coordinator dealing with the
production of the MOE’s March 2002 Soil Investigation and Human Health Risk
Assessment report for the Rodney Street Community, Port Colborne, a position I
have held since April 2001. Previously, I was the Supervisor of the Branch’s
phytotoxicology program, a position I have held since 1990. From 1977 to 1990, I
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(f) failed to respond to complaints made by Class Members about the
Refinery, its emission of contaminants and other activities;
(g) failed to conduct or to cause to be conducted, accurate and completestudies of the impacts of the Refinery, in a timely fashion or at all; and
(h) failed to apply or enforce the Environmental Protection Act , R.S.O.
1990, c. E.19.
5. The issues raised by the above allegations appear to break down into the
following broad categories of inquiry:
i. Failure to respond to complaints of Class members (f);
ii. Failure to study Refinery impacts accurately, completely or fast enough
(g);
iii. Failure to warn Class members about hazardous emissions from the
Refinery (c&d);
iv. Failure to properly inspect or abate problems with the Refinery (a&e);
v. Failure to properly issue approvals for the Refinery (b);
vi. Failure to enforce the EPA (h).
6. In my view, no conclusion could be reached with respect to any of these issues
without a detailed examination of the individual circumstances of each Class
member, on a property-by-property basis, over time. This inquiry will necessarily
involve consideration of soil contaminant levels on each Class member’s property,
air pollution levels on each Class member’s property, normal land use of each
Class member’s property (eg residential, agricultural), and the kind and use of
vegetation on each Class member’s property (eg vegetable garden, farm, urban
landscaping). In addition, it will be necessary to consider the specific
characteristics and lifestyles of each of the Class members to assess any potential
damages.
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Complaints
7. Whether any given Class member actually complained to the MOE and whether
the MOE responded is an individual issue.
8. The possibility of a Class member suffering an adverse effect is property-
specific and Class member-specific and cannot be determined without an
investigation of the property in question. As a result, whether the MOE’s response
was adequate in the circumstances will require a review of the data available with
respect to a particular property at a particular point in time.
Studies of refinery impacts
9. Although the MOE did many studies over the years, until 1997, when the first
MOE Human Heath Risk Assessment (“HHRA”) was conducted, these studies were
all directed to observable ecological impacts (i.e., to plants, soil, surface water,
ground water). Studies done by my unit, the Phytotoxicology Section (“PS”) of the
MOE, were directed towards soil and vegetation impacts. Data from these PS
studies were used to evaluate the potential for human health impacts in the 1997
HHRA. Historically, the PS either responded to individual complaints made by
particular Class members, or it conducted annual surveys or special investigations.
10. In terms of general surveys, the PS sampled at the same general sites from yearto year to track changes in environmental conditions over time. Vegetation surveys
documented plant injury and determined changes in air pollution levels from year to
year, and soil investigations determined whether soil contaminant levels were
increasing or decreasing over time. These surveys were changed from time to time
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as new information became available. This is demonstrated byExhibits B and C
attached. An example of a special investigation is attached as Exhibit D.
11. These surveys found different levels of contamination at different properties.
Studies conducted by the PS found plant impacts at some properties but not others.
The observed plant injury was very site specific and depended on the species of
vegetation, the degree of soil contamination, and the physical and chemical
characteristics of the soil.
12. Where plant impacts (i.e., adverse effects) were found, the owner of the
particular property was advised of this fact and was provided with a copy of the PS
report.
13. Whether any given study was inaccurate or incomplete is a question which is
specific to individual properties. The investigations conducted by the MOE were
tailored to the allegations of the property owner, with the result that the number and
type of samples collected varied from property to property.
14. The MOE conducted appropriate inspections under the circumstances, and
whenever any member of the public complained about an actual plant impact, the
MOE investigated and determined whether an impact had occurred and whether
Inco was the cause. As a result, all actual impacts significant enough to warrant a
public complaint were investigated. The MOE also did surveys and special
investigations. The surveys were similarly restricted to areas that the MOE believedwere impacted (based on the presence of vegetation injury and the known
northeasterly pattern of the Inco plume). The special investigations were
concentrated on a few specific agricultural properties that had experienced chronic
pollution damage.
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15. If the plaintiff takes the position that the MOE’s studies were not broad enough
geographically and that the MOE should have inspected other properties for whichno complaint had been registered, the plaintiff will have to prove that owners of
those other properties had, in fact, experienced unreported plant or health impacts
or that they had levels of contamination sufficient to cause actual plant or health
impacts.
16. The plaintiff will also have to show that these properties were so situated
geographically, having regard to historic activities of Inco, wind directions and theirusage by the property owners, that it would have been reasonable for the MOE to
conclude that these properties might have levels of contamination sufficient to
cause plant or health impacts such as would warrant further or expanded study.
17. Only after an individualized examination of the property, the types and use of
both the property and its vegetation, and the actual levels of contamination on each
property would the plaintiff be able to argue that the MOE’s failure to conductbroader studies resulted in incomplete studies.
Warnings
18. Whether the MOE should have warned any given member of the Class about
contamination would also depend upon an individual examination of:
i. whether the MOE inspected their property;ii . whether the MOE found an adverse effect;
ii i. whether the MOE failed to warn the Class member about the adverse effect.
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19. It cannot be said that the MOE owed a duty to warn all Class members about the
existence of pollution in the soil or air, regardless of any individualized assessment
of contamination levels on each property or the likelihood of the pollution causing anadverse effect.
20. It is my understanding that the EPA only permits the MOE to act to prevent or
alleviate “adverse effects”. Emissions themselves do not constitute an “adverse
effect” under the EPA. It is only an “adverse effect” when sufficient nickel has
accumulated in the soil to result in the potential to injure the natural environment or
human health.
21. An “adverse effect” requires a finding by the MOE that the use of property has
been impacted or that there is the potential for injury to the natural environment or
human health. I have been advised by MOE lawyers that “adverse effect” does not
include diminution of property value or purely economic considerations.
22. If the MOE is under a duty to warn citizens of any level of pollution, whether or notit is causing an “adverse effect”, the MOE would have to warn virtually every
Ontarian of the many potential contaminants being inhaled and ingested daily, since
virtually everyone in Ontario is subjected to pollution levels of some kind or another.
This is particularly true for those living in urban areas or in communities with past or
present industrial activities.
23. The fact of the matter is that years of MOE study have shown that soil nickellevels in Port Colborne are only capable of having an impact upon sensitive crops
and trees when they reach a particular level. Government studies of ecological
impacts in Port Colborne as early as 1960, and MOE studies in Port Colborne
through the 1970s and 1980s all support a “no observable effect level”, or NOEL, of
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about 2000 ppm nickel in soil and a “lowest observable effect level”, or LOEL, of
about 3000 ppm. I have been informed by Inco’s consultant that current studies
being conducted for the Community Based Risk Assessment (CBRA) support thesame NOEL and LOEL levels. Even if these soil nickel levels were present, an
adverse effect on vegetation would only occur if the sensitive plant species were
being grown on the property. On the human health side, there has been no
confirmation of health impacts from soil nickel exposure.
24. To determine whether the MOE ought to have warned any Class member about
potential plant or health impacts, one must necessarily determine (among a host ofother individual issues) whether the soil contamination level on the property of the
Class member exceeded the relevant thresholds from year to year for the entire
time the Class member resided on the property.
25. Whether in fact the MOE warned each Class member who needed to be warned
of potential plant impacts is, therefore, an individual issue which will require
examining the actual level of contamination and the possibility of plant impacts oneach property.
26. Whether in fact the MOE ought to have warned each Class member who
needed to be warned of potentialhealth impacts is also an individual issue for the
same reason - at a minimum, it will require an examination of the actual level of
contamination and possibility of health impacts on each property. The MOE has
warned all Class members that it currently knows may be exposed to potentiallyharmful soil nickel levels when it released its HHRA report in March 2001, its
revised draft HHRA report in October 2001, and again in March 2002 when it
released its final HHRA report.
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Inspections of the Refinery
27. Whether the MOE’s inspections and abatement activities in relation to the
Refinery itself were adequate will also require a property-by-property and person-
by-person determination of which class members were inadequately protected and
in fact impacted by those inspection and abatement activities. This conclusion
flows from the following facts.
28. As noted above, the studies done by the PS only determined the existence of
contamination attributable to Inco in a particular plume or swath extending to the
north-east of the Refinery. The studies by the PS were only concerned with plant
impacts. Although plant impacts are an “adverse effect”, the observed impacts
were mostly to a few specific properties immediately downwind of the Refinery
upon which grew certain specific sensitive plant species. The impacts were
periodic in nature, and were largely addressed by Inco through financial
compensation to farmers for occasional crop loss, and in some cases through
property purchase.
29. Moreover, as a study done by Inco’s consultant Jacques Whitford Environmental
Ltd. (“JWEL”) in 2001 indicates, 97% of all the nickel emitted by Inco over the
operating lifetime of the refinery was emitted by 1960. In other words, virtually all of
the nickel currently in the soil in Port Colborne had been deposited by 1960. A
copy of the JWEL study is attached as Exhibit E to this affidavit.
30. In his affidavit, Allen Baldwin confirms that the MOE has been aware of this fact
since the early 1980s. Therefore, MOE inspections and abatement of the Refinery
operations were concerned with the remaining 3% of total nickel being emitted to
the air.
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31. This means that had the MOE completely abated Inco’s emissions (i.e., shut
down Inco) in 1970, when the MOE was first created as a ministry, it would havemade no measurable difference in the soil nickel levels currently known to exist in
Port Colborne.
32. For the plaintiff to establish that the ongoing nickel emissions from Inco from
1960 onward (the remaining 3%) were so severe in their impact as to warrant more
stringent inspection and abatement actions by MOE than actually were conducted
from 1970 onward, the plaintiff will have to show that those 3% air emissions werecausing not just occasional plant impacts (which were in fact being investigated by
the MOE and compensated by Inco), but were also causing unreported and
unobserved plant and/or health impacts at each property or upon each person of
each Class from year to year during this lengthy time period.
Issuance of Approvals
33. The plaintiff’s contention with respect to this issue appears to be that the air
approvals issued by the MOE to Inco from the 1970s onward either should not have
been granted, or did not contain sufficiently stringent conditions to prevent the
impacts to plants and health which occurred as a result of air emissions.
34. This raises precisely the same questions as the preceding heading dealing with“Inspections of the Refinery”. At the end of the day, for the plaintiff to prove his
contention that the air approvals should not have been issued (i.e., Inco should have
been closed down completely) or should only have been issued with more stringent
conditions sufficient to prevent “adverse effects”, it will be necessary to examine the
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actual level of air pollution and possibility of plant and health impacts at each
property and upon each Class member from year to year during this lengthy time
period.
Enforcement of the EPA
35. It is unclear which, of a broad range of possible MOE activities, the plaintiff is
referring to when he alleges that the MOE failed to “apply or enforce” the EPA. The
EPA can be applied or enforced in a myriad of ways, most of which are entirely
discretionary on the part of the Minister, Director, or Provincial Officer.
36. For example, the Minister has the discretion to issue “stop orders” in certain
circumstances, effectively closing an industry entirely. The Director has the
discretion to issue approvals (dealt with above) or a wide variety of control orders
or clean up orders, depending upon the particular circumstances. An MOE
Provincial Officer has the discretion to lay charges under the EPA leading to the
prosecution of a company for an environmental offence.
37. I am advised by Jack Coop that, generally speaking, a failure by the MOE to
exercise a discretion is not reviewable by a court for negligence.
38. However, even assuming that the court will review the alleged failure to exercise
an enforcement discretion, the assessment of whether this alleged failure
constitutes negligence on the MOE’s part will again involve consideration of a widevariety of individual issues.
39. For example, whether or not MOE officials were justified in “failing” to exercise
these discretions will require a consideration of what “adverse effects” existed from
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year to year, at each property, and for each person within the proposed Class. All
the discretions require, as a precondition to their being exercised, that the MOE
official has reasonable and probable grounds for believing that an “adverse effect”has occurred or has the potential to occur.
40. Thus, if a given Class member’s property was not suffering plant impacts or a
Class member was not suffering health impacts as a result of Inco’s operations,
MOE officials could not be faulted for failing to take steps to protect that individual.
41. As a result, to assess whether an alleged “failure to apply or enforce” the EPAamounted to negligence with respect to any given resident will require the same
sort of detailed, property-by-property and person-by-person analysis of
contamination and causation as has been undertaken by the MOE with respect to
the Rodney Street community in its March 2002 HHRA and March 2002 Order and
as is currently being conducted by Inco under the CBRA process. The complicating
difference is that the negligence analysis will be required to examine not current
conditions, which are verifiable, but rather historic property and health conditions,for which there may or may not be records or information available.
Conclusion on negligence
42. In summary, regardless of the allegation of negligence considered, each will
require a detailed examination of the individual circumstances of each Class
member. Investigations would need to be specific to each Class member, specificto each Class member’s property, and specific in time.
NEGLIGENT MISSTATEMENT
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g. Exhibit J - Soil Investigation and Human Health Risk Assessment for
the Rodney Street Community, Port Colborne, March 2001, MOE;
h. Exhibit K - Phytotoxicology 2001 Investigation: Resampling of Soil at
Humberstone School and Arsenic in Soil at All Schools - Port Colborne,
MOE;
i. Exhibit L - Phytotoxicology 2001 Investigation: Resampling of Soil at
St. Therese Catholic School, Port Colborne, MOE;
j. Exhibit M - Fact Sheet: Environmental Sampling Program Confirms
Metals Do Not Pose a Health Risk at Port Colborne Schools; January 25,
2001, MOE;
k. Exhibit N - Letter to Rodney Street Community Residents; May 2,
2001, MOE;
l. Exhibit O - Letter to Rodney Street Community Residents; June 6,
2001, MOE; and,
m. Exhibit P - Letter to Port Colborne Residents and Frequently Asked
Questions; July 16, 2001, MOE.
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The alleged distribution
45. The plaintiff states that these reports and letters were distributed by the MOE to
proposed Class members. Alternatively, it is pleaded that alleged
misrepresentations in them were disseminated to proposed Class members by the
media and through public meetings. As a result, it is alleged that “Given the
extremely widespread distribution of these misrepresentations, it is clear that they
were heard or read at some point by all Class Members including Pearson”.
The actual distribution
46. I have reviewed each of these documents, and have made inquiries of the MOE
staff responsible for distributing the documents and speaking to the media about
them. Based upon my review, I am able to make the following detailed
observations about how each report was distributed.
a. Exhibit D - Assessment of Potential Health Risks of Reported Soil Levels of
Nickel, Copper and Cobalt in Port Colborne and Vicinity: May 1997, MOE (the
“1997 HHRA”);
his was a limited government green cover print run (the number of copies printed is
unknown, but it is reasonable to assume that it was in the 50 -100 copies range, as this
was typical), circulated to the MOE District and Regional Offices (perhaps one dozen),
and to the MOE’s Public Information Centre at 135 St. Clair Avenue West, Toronto
(most copies). It was the responsibility of the District/Regional offices to distribute the
report locally, but this typically would have included a few copies to the Regional
Niagara Public Health Department (RNPHD), and Municipal authorities. No hard-
copies were known to be distributed directly to the public. A single copy was placed in
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the Port Colborne library in the summer of January 2000. It was also placed on the
MOE web page Port Colborne hyperlink.
b. Exhibit E - Phytotoxicology Soil Investigation: INCO - Port Colborne (1998),
MOE ;
This was published in 2000. It was distributed in the same manner as
Exhibit D.
c. Exhibit F- Phytotoxicology Soil Investigation: Port Colborne, 1999, MOE;
This was published shortly after Exhibit E. It was distributed in the same
manner as Exhibit D.
d. Exhibit G- Technical Report - Assessment of Potential Health Risks of
Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and
Vicinity: May 1997, MOE, Revised January 2000 (the “2000 HHRA”);
This was published in January 2000. It is a revised version of Exhibit D.
It was distributed in the same manner as Exhibit D.
e. Exhibit H - Soil Contamination in Selected Port Colborne Woodlots: 2000,
MOE;
This was published in February 2000. It was never bulk printed, being a
technical memorandum report. The District and Regional Offices would
have received 1 or 2 copies each. One copy was placed in the public
library. No copies were sent to Public Information Centre. It was placed on
MOE’s web site Port Colborne hyperlink. No hard-copies were distributed
directly to the public.
f. Exhibit I- Phytotoxicology Soil Investigation: School Yards and Beaches Port
Colborne (April 2000), improperly referred to as Soil Investigation of Port
Colborne Schools - 2000, MOE in the Reply;
This was published in December 2000. It was distributed in the same
manner as Exhibit H. Additionally, 1 hard-copy was distributed to each
school and both school boards.
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g. Exhibit J- Soil Investigation and Human Health Risk Assessment for the
Rodney Street Community, Port Colborne, March 2001, MOE (the “March
2001 HHRA”);
This was published in March 2001. It was bulk printed (about 400 copies).
District and Regional Offices received about 30 copies. One copy was
placed in the Port Colborne public library. One copy was delivered to every
household in the Rodney Street community (200 copies). About 100 copies
were sent to the MOE Public Information Centre. It was also placed on
MOE’s web page Port Colborne hyperlink. It was available to the public at
the MOE April 2001 open house meeting.
h. Exhibit K — Phytotoxicology 2001 Investigation: Resampling of Soil at
Humberstone School and Arsenic in Soil at All Schools - Port Colborne,
MOE;
This was published in April 2001. It was distributed in the same manner
as Exhibit I.
i. Exhibit L – Phytotoxicology 2001 Investigation: Resampling of Soil at St.
Therese Catholic School, Port Colborne, MOE;
This was published in April 2001. It was distributed in the same manner as
Exhibit I except that it was only distributed to St. Therese school and the
Catholic school board.
j. Exhibit M — Fact Sheet: Environmental Sampling Program Confirms Metals
Do Not Pose a Health Risk at Port Colborne Schools; January 25, 2001,
MOE;
This was published in January 25, 2001. It was posted on the MOE’s
web page Port Colborne hyperlink and placed in the Port Colborne
public library. RNPHD received a copy. It was also distributed to the
schools.
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k. Exhibit N – Letter to Rodney Street Community Residents; May 2, 2001,
MOE;
This was published on May 2, 2001. One copy was sent to every Rodney
Street community household. RNPHD received a copy. One copy went to
the Port Colborne public library. It was posted on the MOE’s web page Port
Colborne hyperlink.
l. Exhibit O- Letter to Rodney Street Community Residents; June 6, 2001,
MOE;
This was published on June 6, 2001. Same distribution as Exhibit N.
m. Exhibit P - Letter to Port Colborne Residents and Frequently Asked
Questions; July 16, 2001, MOE.
This was published on July 16, 2001. This was the first time any document
was sent by the MOE to all households of Port Colborne (delivered Canada
Post). Again, RNPHD received a copy, as did the Port Colborne public
library. It was posted on the MOE’s web page Port Colborne hyperlink.
47. From the above, it is clear that, although most of these reports were officially
published by the MOE, their distribution was not always the same. A limited
number of copies were made and some were web-posted only. Only one of the
reports, the letter of July 16, 2001, was circulated to all of the households in Port
Colborne. They were certainly not distributed to “all proposed Class members”, as
defined in the Claim. Only one of the reports (the March 2001 HHRA) and the three
letters were circulated to all the households in the Rodney Street community. The
2000 Health Study was not publicly circulated and was only posted on the MOE’s
web page in the summer of 2000. Most of the reports were technical reports and,
as a result, they were not bulk printed and were not distributed to the public, but
rather were made publicly available through the local library (one copy) and the
internet. It is unknown how many proposed Class members were aware of the
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library and internet copies and how many actually read them. Copies of some
reports which were bulk printed and sent to the MOE’s Public Information Centre in
Toronto would have been available upon request by any member of the public.However, there are no records of how many people requested copies from the
Public Information Centre or who the people were who requested copies (i.e., if they
were even Class members).
48. To the best of my recollection, having been personally involved in Port Colborne
soil and vegetation studies at the time of their production and publication, the 1997
and 2000 Health Studies (Exhibits D and G) generated minimal media coverage.As well, all other reports published prior to the spring of 2000 (Exhibits E, F, and H)
received minimal media coverage. Few, if any, interviews were given by the MOE
in respect to them.
49. However, commencing in the spring of 2000, with the establishment of the
Public Liaison Committee (“PLC”) under the CBRA process, and the holding of
regular monthly PLC meetings, the media started to follow environmental issues inPort Colborne much more carefully. The PLC had its own independent expert,
Beak International, reviewing and critiquing the MOE reports. As a result, all of the
MOE reports published subsequent to the summer of 2000 received a much higher
level of media scrutiny, much of it critical of the MOE’s conclusions and findings.
50. This is reflected in the sort of media coverage received by the March 2001
HHRA. This was the first comprehensive human health risk assessment conductedby the MOE after the discovery in the fall of 2000 of higher than expected levels of
total nickel on some properties in the Rodney Street community. As a result of this
discovery, and further as a result of the commencement of this action in March 2001
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and media publicity actively sought by plaintiff’s counsel, the March 2001 HHRA
received considerable media attention in the local media, most of it highly critical.
51. By March 2001, and continuing throughout the months that followed, the
residents of Port Colborne were broadly aware of this legal action and were
exposed to numerous media reports distributed by plaintiff’s counsel expressing
intense criticism of the March 2001 HHRA and its conclusions.
52. Given the highly critical nature of press coverage of the MOE reports since the
summer of 2000, it remains very much a question in my mind the extent to whichresidents of Port Colborne would have accepted the conclusions and findings of the
MOE reports at face value.
The alleged misrepresentations
53. I have reviewed the Amended Amended Statement of Claim and the Reply, and
understand that it is alleged that these reports and letters contained two falsestatements. The first was that “emissions from the Refinery have not posed any
immediate risk, or any risk to human health”. This is allegedly false because, it is
pleaded, “Class members have been exposed to the risk of harm and to actual
harm” as pleaded elsewhere in the Claim and Reply. The second alleged
misrepresentation is that “one of the substances that Class Members were being
exposed to and are still being exposed to is nickel, and not the known human
carcinogen nickel oxide”. This is allegedly false because, it is pleaded, “Classmembers have not been exposed to nickel, but instead have been primarily
exposed to the known human carcinogen nickel oxide”.
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54. Jack Coop advises me that the plaintiff cannot succeed in his claim based on
the alleged misrepresentations. First, the reports in question do not contain the two
statements referred to above. Furthermore, the first statement, even if it werecontained in the reports, is a true statement.
The actual representations
55. The allegation that all of the documents referred to above contain the first
statement, “emissions from the Refinery have not posed any immediate risk, or any
risk to human health”, is not accurate.
56. Some of the documents, notably the 1997 and 2000 Health Studies and other
reports which quoted from them prior to the fall of 2000, concluded with words to the
effect that “no adverse health effects are anticipated to result from exposure to soil
metal contamination in the Port Colborne area”. This conclusion was based on the
best information available at the time, that contamination levels of nickel in the
community did not exceed 9,750 ppm nickel.
57. After the MOE discovered in the fall of 2000 elevated levels of nickel
contamination above 9,750 ppm in the Rodney Street community and, as a result,
began investigations leading up to the March 2002 HHRA, the MOE qualified its
communications to the public, to the effect that the MOE (and the RNPHD) “did not
believe there was any immediate risk to human health while further studies werebeing conducted”.
58. Contrary to what the plaintiff alleges, the MOE’s statements have at all times
been true, based on the information available at the time. Moreover, based on
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information provided by the RNPHD, it appears that there has been an absence of
any overt evidence of health impacts to this community related to current exposure
to environmental soil contaminants. Even the MOE’s latest HHRA (the October2001 draft, finalized March 2002 HHRA) confirms that potential health risks are
confined to a small number of Rodney Street Community properties (25), and that
those risks will only continue to exist until the properties are cleaned up.
59. The allegation that any of these documents contain the second statement, that
“one of the substances that Class Members were being exposed to and are still
being exposed to is nickel, and not the known human carcinogen nickel oxide”, iscompletely false. No document contains such a statement.
60. Moreover, to the extent that the pre-2001 documents refer to nickel, they are
referring to the total amount of nickel that can be identified using standard, widely
used chemical analysis protocols, most commonly ICP (Inductively Coupled
Plasma) spectroscopy. This is an industry standard in which all nickel compounds
that are present in the soil are dissolved by acid into elemental nickel. It yields aconcentration which is commonly and universally called “total nickel”. To the best of
my knowledge, when the analytical protocols are followed, these total nickel
measurements are accurate and there has never been any suggestion to the
contrary by any experts of which the MOE is aware.
61. The reporting on the species of nickel in question changed in 2001 with the
preparation of the March 2001 HHRA. In 2000, MOE staff working on the PortColborne project reviewed historic MOE records which led to the discovery of a
1978 memorandum from Inco in MOE files which summarized the analyses of a few
samples of dust collected from inside the Inco refinery that were found to contain
several species of nickel, including nickel oxide. The MOE also did some limited
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speciation work in the fall of 2000, the results of which were received in January
2001, which suggested that most of the nickel in the soil in the Rodney Street
community was nickel oxide. As a result, from March 2001 on, the MOE reportsstate that the species of nickel in question is nickel oxide, and make clear that
inhalation of nickel oxide can be carcinogenic. There is no scientific evidence that
nickel oxide is carcinogenic through exposure pathways other than inhalation (eg.
ingestion, dermal contact).
62. There are a number of reasons why earlier reports made no mention of nickel
oxide. On the practical side, it is because, at the time of their writing, the MOE hadno reason to believe that most of the total nickel was, in fact, nickel oxide. As well,
the analytical process for determining the precise species of nickel in the soil was
and still is research oriented; it is not an operational analytical protocol. It is time-
consuming, requires the use of special laboratories, and specially trained
scientists, and it is quite costly. As well, there was then and still is no accredited
method for speciating nickel, such that the results from one laboratory cannot
necessarily be reliably duplicated by analysis in another laboratory. Moreover, thespeciation of nickel was unnecessary as the type of nickel species was, and
remains, irrelevant to phytotoxicological impacts and is of limited relevance to
health impacts, for reasons set out below.
63. There is no basis to conclude from reading the earlier reports that the MOE had
ruled out the presence of nickel oxide. The most one can reasonably conclude from
reading them is that the writers did not think that the species of nickel wasparticularly relevant to the report’s findings. The scientists conducting the earlier
studies used standard investigative and analytical techniques and protocols in
place at the time and these did not include the routine nickel speciation of
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environmental samples. I believe that the investigative approach that was used was
appropriate for the objectives of the studies being conducted.
64. As the presence of nickel oxide is entirely irrelevant to plant impacts, the fact
that these soil and plant investigation reports make no mention of nickel oxide is
hardly surprising, and is not in the slightest misleading.
65. Moreover, as the March 2002 HHRA shows, in the establishment of the MOE
soil nickel intervention level of 8,000 ppm, the presence of nickel oxide is of limited
relevance. Nickel oxide is only potentially carcinogenic if inhaled. As set out in theMarch 2001 and March 2002 HHRAs, the primary nickel exposure pathway in Port
Colborne is through ingestion, and not inhalation. Inhalation accounts for 0.1% of
total nickel exposure for Rodney Street community residents, where soil nickel
levels are the highest in all Port Colborne.
The issue of “detrimental reliance”
66. It has been explained to me by the Crown’s lawyer, Jack Coop, that for the
representative plaintiff to prove negligent misrepresentation, he will have to prove
“detrimental reliance” by each proposed Class member. I understand this to mean
that he will have to prove that each proposed Class member:
i. read or otherwise received the alleged two false statements referenced
above,
ii. interpreted what they read or heard to mean that the MOE had expressedthe alleged two false statements referenced above, and,
iii. as a result of receiving these two false statements, each proposed Class
member relied upon those statements as true with the result that they have
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suffered damages that they would not have suffered had the MOE told the
“truth”.
67. For the reasons set out above, I doubt that most proposed Class members ever
read or even heard about the conclusions of most of the reports published by the
MOE up to 2000. After the establishment of the PLC in the spring of 2000, most
residents would have been aware of the issue of elevated soil metal levels, but it is
unlikely that they would have read the MOE reports and understood the specific
conclusions in them.
68. I also doubt that any Class members who did read or did hear about the reports
concluded that they contained the second statement referred to above, since none
of the reports contain that statement. Moreover, since at least March 2001, the
MOE has publicly taken the position that the nickel in the soil is mostly nickel oxide.
69. Equally, none of the reports contain the first statement as alleged. To the extent
that they contain any conclusions about potential impacts to health, thoseconclusions were and remain true. Thus, it is difficult to imagine how any Class
member who heard of them would have acted any differently had they been told the
“truth”.
70. If it is the plaintiff’s contention that the MOE should have warned about the
presence of a “known human carcinogen nickel oxide” as early as 1997, any
responsible warning would have gone no further than what is reported in the MOE’s2001 and 2002 HHRA’s (i.e., an explanation that nickel oxide is present but of
limited potential impact given that the primary pathway for exposure is ingestion
and not inhalation). It would have been alarmist and negligent for the MOE to make
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the sort of unqualified and misleading statements as are contained in the plaintiff’s
pleadings.
71. Despite the release of the March 2001 HHRA and despite repeatedly
misleading and alarmist news releases by plaintiff’s counsel concerning the health
impacts of nickel oxide on the people of Port Colborne, I have no personal
knowledge of, nor have I been informed of, any evidence of a mass exodus of
residents from Port Colborne or mass change in behaviour in residents.
72. It is true that the MOE and MOH have issued precautions to the people of PortColborne to reduce their exposure to nickel contamination in the soil. However,
those precautions are just common sense and would have been done by most
residents anyway.
73. Based on all the above, it is highly doubtful in my view that members of the
proposed Class (whether inside or outside the Rodney Street community) would
have behaved differently had the 1997 study mentioned the possible presence ofnickel oxide in a responsible manner, that is, in the same way as the MOE 2001
and 2002 HHRA does.
74. Of course, without further inquiry, one cannot be sure whether any particular
member of the proposed Class actually read or heard about each of the above
reports and letters, how they responded to what they read or heard, and whether
they would have responded differently had different information been included inthose reports. The only way to ascertain these facts would be to conduct an
individualized inquiry into the circumstances of each person.
PREFERRED ALTERNATIVE
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75. I am advised by the Crown’s legal counsel, Jack Coop, that under the Class
Proceedings Act a plaintiff must establish at the certification hearing that the class
proceeding would be the preferable procedure for the resolution of the common
issues.
76. I have reviewed the affidavit of Richard Lindgren, sworn January 15, 2002. I
disagree with his assertion in paragraph 12 that this case would “appear to be
particularly suited to being advanced as a class proceeding”.
77. To the contrary, based upon my analysis set out earlier in this affidavit, a class
action would require an extremely lengthy, individualized, property-by-property and
person-by-person inquiry into historic facts for the purposes of determining liability,
which will be impractical or impossible in light of the finite historic soil contamination
records which exist. Such an inquiry serves no useful purpose in light of the solution
offered by the CBRA process.
78. A class action will also require an equally lengthy, individualized, property-by-
property and person-by-person inquiry into current facts for a determination of future
“damages” which might be sustained by each Class member. Again, such an
approach would merely duplicate the CBRA process.
79. I therefore believe that a class action will inevitably force the parties and the
court to devote a significant amount of their resources to property and person-specific investigations. This does not offer a practical alternative process to the
CBRA and Order processes which have been set out in the affidavits of Kal Haniff
and Jim Smith, sworn March 28, 2002.
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80. Using Mr. Lindgren’s paragraph 12 as a template, I would observe the following:
a. There are a large number of potential claimants (20,000 or more).
b. Their claims do not arise out of the same or similar facts, but rather out of very
different facts. Whether any given resident will require remediation at their
property, the type of remediation required, and the type and extent of any
damages suffered will require a detailed property by property and person by
person assessment. This can more effectively be done under the CBRA
process.
c. For reasons more completely detailed in my affidavit, above, the very complex
issues of liability raised by the action concerning negligence and negligent
misstatement by the Crown will necessarily require a very individualized
assessment of facts in relation to each alleged proposed Class member. The
complex issues of liability are not common to all potential plaintiffs. Instead, they
are highly individualized.
d. If the vast majority of Class members have damage claims that are modest, as
alleged by Mr. Lindgren, those claims could be better addressed under a
voluntary and cost-free (to the class members) CBRA process, rather than
through lengthy discovery processes in the litigation setting.
e. Whatever damage claims any proposed Class members have, these could beaddressed through the CBRA process.
f. Mr. Coop advises me that Mr. Lindgren is correct in his statements that actions
of this nature frequently require the expenditure of large amounts of time and
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money on expert witness fees and other disbursements. Furthermore, very
large amounts of legal time are normally required. However, in my view, what
Mr. Lindgren ignores is that proposed Class members can already participatefully in the CBRA process on a no-cost basis. The Public Liaison Committee,
which represents the public in the CBRA process, has its own independent
expert fully paid for by Inco. No lawyers are required for the CBRA process, but
neither are they excluded from representing the interests of any particular
property owners who feel their interests are not being fully represented by the
PLC and its experts.
g. Given the complexity of the environmental issues requiring a determination, this
situation is particularly well-suited to the multi-level, consultative CBRA process
involving participation of experts and peer reviewers. The CBRA process
allows all stakeholders to participate in creating a consensual solution for the
community. The litigation process does not support this initiative, but rather
isolates and makes adversarial the parties and their experts.
h. As noted by Mr. Lindgren in his affidavit in paragraph 12(i), there are
potentially hundreds, if not thousands of individual claims. Should these come
before the Court as individual actions, the burden on the court system would be
immense. Where we part company with Mr. Lindgren is that we do not share his
belief that a class action will avoid the necessity of each individual claim being
heard, even to establish liability.
i. Contrary to Mr. Lindgren’s suggestion in paragraph 12 (j), substantial
documentary production will be required from each member of the proposed
Class for this matter to proceed as a class action.
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j. I strongly disagree with Mr. Lindgren’s suggestion in paragraphs 12 (k)
and (l) of his affidavit, that this court action has somehow prompted increased
study and analysis by any of the defendants. The MOE and RNPHD hadalready undertaken human health risk assessments in 1997 and 2000. Inco had
already commenced the CBRA process with full participation of the City, the
RHPHD and the MOE long before this action was launched. In fact, all of the
environmental studies conducted to date and all of the environmental initiatives
currently underway in Port Colborne were started before the class action was
launched in March 2001. It was as a result of the MOE’s normal operating and
investigative procedures, on which the CBRA is based, not any legalproceeding, that unexpectedly high levels of soil contamination were discovered
in 2000 in the Rodney Street community by the MOE. It was as a result of this
discovery, and not any legal proceeding, that the MOE initiated and completed
a six month study leading up to the publication of the March 2001 HHRA, and
proposed the March 2001 Director’s Order which culminated in the final March
2002 report and Order. This legal action has been largely responsive to, and
parasitic upon, the extensive work already done by public authorities tosafeguard the interests of this community.
k. This action, and the conduct of plaintiff’s counsel promoting it, have done
nothing to advance the environmental well-being or interests of the residents of
Port Colborne. Instead, there has emanated from the plaintiff, through his
counsel, a series of misleading and alarmist press releases, not founded on
scientific fact or medical evidence, which have needlessly alarmed thecommunity of Port Colborne and have probably had a more profound negative
impact on property values in the City than the presence of soil contamination
could have had. The plaintiff, through his legal counsel, has variously threatened
to close private and public schools without scientific justification, has warned
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residents that they will suffer severe health ailments as a result of soil nickel
levels without scientific basis, has opposed Inco’s voluntary remediation efforts,
and has repeatedly misapplied the MOE’s guidelines to suggest that anexceedence of Table A generic health-based value of 310 ppm nickel in soil
means there has been damage to the community despite express MOE advice
to the contrary. Indeed, the latest affidavit materials filed by the plaintiff on this
motion, suggesting that there is some basis for concluding that proposed Class
members have been damaged by exceedences of the Table F (background-
based) value of 43 ppm nickel in soil or the Table A (effects-based) value of 200
ppm nickel in soil, the MOE’s clean up guidelines, are a case in point. Underthe guidelines, these generic values point to a need for further site-specific
investigation. One cannot assume that their exceedence denotes an adverse
effect.
l. This litigation is not required to modify the behaviour of any defendant. From
the beginning, the regulators have been actively engaged in assessing and
safeguarding the health interests of the public and the natural environment in thevicinity of Port Colborne. Inco has voluntarily advanced the CBRA process,
which will address not only health and ecological effects but also property value
impacts. Inco has made a public commitment to complete that process. The
MOE has ordered Inco to take the necessary steps to immediately alleviate
currently known potential health effects to the community
81. I swear this affidavit in response to the certification motion of the plaintiff dated
January 17, 2002, and for no improper purpose.
SWORN before me at the City of )
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Toronto, in the Province of Ontario, )this 28
thday of March, 2002 )
_______________________
DAVE LEONARD MCLAUGHLIN ________________________________ A Commissioner, etc.
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