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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

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.



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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”).



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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 Inco’s 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 Niagara’s Public Health Department (“Public Health Officials”)

have been responsible for overseeing the Refinery’s 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 Niagara’s Medical Officer of Health (“MOH”) have been advising Class Members that:

(i) emissions from the Refinery do no pose any immediate risk, or any risk to humanhealth, and that

(ii) one of the substances that Class Members have been and are still being exposed to isnickel, 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), MOE



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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, MOE



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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

Fact Sheet for Port Colborne Residents, Commonly asked Questions About Possible Health

Effects Related to Soil Contamination, April 1, 2001; Niagara Region Public Health

Department

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

June 4, 2001 Letter to East Side Community Residents: Niagara Region Public Health

Department

Letter to Rodney Street Community Residents; June 6, 2001, MOE

Press Release dated June 22, 2001; Niagara Region Public Health Department

Letter to Port Colborne Residents and Frequently Asked Questions; July 16, 2001, MOE

Press Release dated July 20, 2001; Niagara Region Public Health Department

East Side Community Resident Letter, August 7, 2001, Niagara Region Public Department

19. In addition, these representations have been included in newspaper articles, television and

radio broadcasts and on web sites that have been seen and/or heard by huge numbers of

Class Members, and repeated at public meetings attended by large numbers of Class



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Members.

20. It would be reasonable to conclude that because of the consistent, highly repetitive and

extremely widespread nature of these representations that the entire Class has been exposed.

21. These representations were made by the authors of the initial reports and studies, and

perpetuated by the authors of the press releases and letters to the public, and by those

representatives of HMQ and MOH who distributed these materials, or spoke publicly or were

interviewed by the media.

22. It is also clear that they were incorrect, in that:

(i) Class Members have been exposed to the risk of harm, and have suffered actual harmthat is consistent with being exposed to the contaminants found within the areainhabited by the Class, and

(ii) Class Members have not been exposed to nickel, but instead have been primarilyexposed to the human carcinogen nickel oxide.

23. HMQ and MOH ought to have known that there were risks of harm, and actual harm being

caused by this exposure. Since 1994, for the reasons set out in paragraphs 28 through 34

below, HMQ and MOH also ought to have known that Class Members were being exposed

to the known human carcinogen nickel oxide.

24. Class Members were induced to rely on these representations, and did in fact rely on these



10

statements because they were made repeatedly, and by public authorities (HMQ and MOH) that

Class Members have normally and properly looked to and trusted for complete and accurate

information on matters of this nature.

25. Given that these representations were widely and repeatedly publicized by HMQ and MOH and

held out to be the position of HMQ and MOH as the statutory authority with responsibility for

matters of this nature, it was clear to Class Members that the intention of HMQ and MOH was

that they should be able to and would rely on these statements.

26. As a result of these representations, Class Members altered the positions they would have

taken had the true facts been known, by (a) continuing to live in, purchase, improve or

renovate property within the area defined by the boundaries of the Class, and (b) by failing to

protect themselves against the hazards posed by exposure to the contaminants found within

the area defined by the boundaries of the Class.

27. As a result of these representations, Class Members have also suffered losses and damages as

set out below.

D. ADDITIONAL ISSUES

I. Nickel Oxide

28. In 1994, the Government of Canada released a comprehensive analysis under the Canadian



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Environmental Protection Act of nickel and its compounds (see the affidavit of Dr. Thomas

Burnett sworn January 15, 2002, Exhibit “F”, Nickel and its Compounds ).

29. In it, Health Canada specifically identified nickel oxide as a humanGroup One - Carcinogen , ie.

a substance for which there is considered to be some probability of harm for the critical effect

(cancer) at any level of exposure (page 52).

30. Well before 1994, tests conducted by Inco in the 1970’s (copies of which were provided to the

MOE), as well as other information and materials regarding the output from the Refinery were

readily available to Inco and the other defendants. These tests, information and materials

made it clear that nickel oxide was in fact the primary emission from the Refinery. As a result,

all of the defendants knew or ought to have known that the primary contaminant in Port

Colborne was not nickel, but nickel oxide.

31. However, prior to our firm being retained as counsel for the plaintiff in March of 2001, none of

the defendants had disclosed this fact to Class Members.

32. Within days of being retained, we consulted with Dr. Thomas Burnett (who is identified in

more detail in paragraph 62(ii) below) and were advised that for numerous reasons, the

primary contaminant in Port Colborne was likely not nickel, but nickel oxide. These reasons

included the basic fact that nickel oxide was the primary feed material processed at the



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Refinery furnaces, that raw nickel oxide is added part way through the process and much of it

likely escapes into the stack emissions, and that nickel oxide is inherently stable and does not

readily transform or change its form in soils. Most of this is basic, elementary information

available from the public library

33. As a result of discussions with our office, on March 19, 2001, Ellen Smith sent an e-mail to

Mr. David McLaughlin, a soils expert with the MOE who had been taking a leading in role in the

Port Colborne investigation. He confirmed that “the vast majority, if not all of the Ni (nickel)

detected in the ‘total’ metal analysis (of Port Colborne soils) is nickel oxide”. Attached and

marked as Exhibit “A” is a copy of an e-mail from Dave McLaughlin to Ellen Smith dated March

19, 2001.

34. On March 27, 2001, in the press release and at the news conference held to announce the

commencement of these proceedings, our firm indicated that Class Members were not being

exposed to “nickel” in Port Colborne, but instead to the carcinogen nickel oxide. This was the

first time that this information had been provided to the general public or to Class Members by

anyone.

35.

The fact that nickel oxide is the primary contaminant has now also been confirmed in further

testing done by the Ontario Government, in testing done on behalf of our client (see the

affidavit of Dr. Thomas Burnett sworn January 15, 2002, Exhibits “D” and “E”), and in tests



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conducted by Inco’s own consultants.

II. Developers and the City of Port Colborne

36. I am advised by Mr. Emil Kaminski that in recent years there are Class Members who have

approached the City and obtained approvals and building permits for residential housing

projects in Port Colborne. These developments were undertaken between the summer of 1998

and September of 2000, when the public was unaware of the elevated levels of any of the

Contaminants of Concern.

37. At the same time, since at least 1998 the City itself was aware of high levels of a number of the

Contaminants of Concern. However, the City proceeded to grant approvals, provide zoning

and issue building permits for the lands in question as part of its normal operations, with the

knowledge that these lands were compromised.

38. After the public announcement in September of 2000 that these areas were contaminated,

sales of these lands were not possible, or were only possible at greatly reduced prices. Had

these Class Members been informed of what the actual levels of contamination were, building

at these sites would not have taken place.

III. Subsidence

39. In addition, Class Members in certain areas are also suffering losses related to subsurface



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operations by Inco that have involved the taking of water for refining operations and/or

attempts to control the migration of Contaminants of Concern from Inco’s property. These

operations have involved the pumping of water and subsequent disturbance of the natural

water table.

40. I have been advised by Mr. David MacGillivray of Terraprobe Limited, P. Eng. (B.Sc. Queens

University, Geotechnical and Environmental Engineering; M.A.Sc. University of Waterloo,

Hydrogeology and Geomechanics) that these operations now involve the use of ten purge

wells, six of which appear to be active. These purge wells are located on the western boundary

of Inco’s property in close proximity to Class Members’ lands. They are operated pursuant to

a permit issued under the Ontario Water Resources Act which allows Inco to extract up to

345,600 litres per day from the local water table.

41. The water table in this area is near the surface. The underlying material in this area appears to

contain a significant amount of peat and clay. These materials are particularly sensitive to the

removal of water content. If water is removed, there is a natural tendency for overlying

materials to settle or subside.

42.

Within the geographic area bounded by Rodney Street, Davis Street, Durham Street and

Welland Avenue, there are numerous signs of settling and subsidence causing damage to

homes, garages, decks and other structures, sidewalks and driveways. This has also limited



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certain Class Members’ rights to sell, finance, mortgage or insure their properties at a fair

value, or at all.

43. I am advised by Mr. MacGillivray that it is reasonably probable that Inco’s subsurface

operations have caused or contributed to these losses.

E. CLASS CATEGORIES AND DAMAGES

44. In this action, Class Members can generally be divided into 4 categories. These categories

could quite properly form the basis for subgroups within this proceeding:

I. The East Side Community Area

45. The East Side Community of Port Colborne (also known as the Rodney Street Area) is an

area defined as being bounded by Rodney Street to the south, Davis Street to the East,

Durham Street to the north and Welland Street to the west (the “East Side Community

Area”). There are approximately 310 homes within this area. It is estimated that this group

of Class Members would total approximately 1,000 individuals.

46. The East Side Community Area abuts the Refinery and is the site of the most extensive

contamination found to date anywhere in Port Colborne. For example, the current guideline

for nickel in Ontario (human health effects based) is 310 parts per million (ppm). Soil at

residences in the East Side Community Area have been tested at levels up to 17,000 ppm.

The interior of residences (attics) have been tested at levels as high as 16,000 ppm.



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47. The East Side Community Area is also one of the poorest parts of Port Colborne. House

prices, even prior to the announcement of contamination in this area, appear to have

averaged $60,000 to $80,000. Economically the area was already depressed, with low

housing costs attracting a large number of elderly persons and others on fixed incomes, as

well as partially or unemployed persons, persons with disabilities and social recipients

assistance. At any time, between 25% and 40% of residents in this area might fall into one

of these categories.

48. Since the announcement of high levels of contamination in this area in September of 2000,

home sales in this area have virtually ceased. As a result, the present value of properties in

this area would appear to be “nil”.

49. Furthermore, a significant number (at least 75) of the properties in the East Side Community

Area contain rental housing units. Since the announcement of high levels of contamination

in this area in September of 2000, many of these units have been vacated and have remained

vacant, causing the owners of these properties to lose income.

50. In addition, on November 16, 2000, Mr. Allen Kuja, a senior MOE official who had been

working directly in the community for many months announced at a public meeting that

from his observations “I might get in trouble for saying this but there’s something going on

... There’s areas where every single household has someone sick, every single family, some



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member has something - cancers, rashes, leukemia...” Mr. Kuja was transferred off the Port

Colborne project immediately after making these statements.

51. Further observations and contact by legal counsel have confirmed these statements to be

accurate. Consequently, the East Side Community Area is also where the majority of health

related problems would be expected to have occurred, and to continue to occur in the future.

52. Preliminary health assessments by government agencies and consultants retained by Inco

have indicated that based on responses from this community, significant further analysis is

warranted, and a multi-million dollar health study will begin this spring. This study will

examine all of Port Colborne, but with an emphasis on the East Side Community Area.

53. Damage claims from this area would be expected to be relatively large, ie. in the range of

$10,000 to $250,000 dollars per person.

II. The Table “A” Area

54. In addition to the East Side Community Area there are also large portions of Port Colborne,

also primarily on Port Colborne’s east side, where contamination levels are above Ontario

MOE Table “A” guidelines. This area covers a substantial amount of residential

development, but also includes large tracts of farmland to the north and east of Inco. It is

estimated that this group of Class Members would total approximately 9,000 individuals.

55. While not as heavily contaminated as the East Side Community Area, the Table “A” Area



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has also suffered a decline in property values. The ability of homeowners to finance these

properties has also declined.

56. Many of these properties have contamination levels that also exceed the current Ontario

guidelines related to human health.

57. At the same time, damage claims from the Table “A” Area would be expected to be more

modest, ie. in the range of $1,000 to $10,000 dollars per person.

III. The Table “F” Area

58. There are also large tracts of land in Port Colborne where contamination levels are above

Ontario MOE Table “F” guidelines (ie. Ontario background levels). This area surrounds the

East Side Community Area and the Table “A” Area. It is estimated that this group of Class

Members would total approximately 10,000 individuals.

59. Given the limited amounts of contamination on these Class Members’ lands, the primary

damage suffered by these individuals would be a diminution in value of their properties

related to the overall stigma associated with contamination in Port Colborne.

60. Very limited health impacts would be expected within the Table “F” Area.

61. Damage claims from the Table “F” Area would be expected to be in the range of $100 to



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$2,000 dollars per person.

IV. The Farm Claimants

62. Lastly, within the Table “A” Area and Table “F” Area, there is a small subgroup of Class

Members who own farm properties. It is estimated that this group of Class Members would

total approximately 200 individuals.

63. The properties involved are much larger than those of other Class Members. Because of

their existing and future land use potential they are also more restricted in the levels of

contamination that are tolerable. As a result, the Farm Claimants will likely have

significantly larger property damage claims than those of other Table “A” Area and Table

“F” Area Class Members.

64. They may also have significantly larger health claims due to exposure to higher levels of

contaminated dust and soil as a result of engaging in agricultural activities.

65. Damage claims from Farm Claimants would be expected to be in the range of $20,000 to

$500,000 dollars per person.

F. THE PLAINTIFF’S EXPERTS

66. From the outset, is has been clear that a wide variety of experts would be required in order to

address issues common to the Class. Consequently, in order to advance this action and



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ensure that the interests of Class Members are properly represented the plaintiff has retained

numerous experts from various disciplines. These include:

(i) DR. MARK RICHARDSON

Dr. Richardson is the former Head of Health Canada=s Air and Waste Section, the federalgovernment department that analyzes substances identified as potentially toxic under theCanadian Environmental Protection Act . He now works in private practice as a human healthrisk assessor. He is routinely retained to conduct community wide risk assessments and toprovide other risk assessment services to the Government of Canada, provincial governments(including the Government of Ontario) and industry. His recent work includes human healthrisk assessments for Canadian soldiers stationed in Croatia and Kosovo; the assessment of

human and ecological risks posed by what is considered to be the worst-ever mine tailingsdisaster in Europe (a spill that affected approximately 40 km of the Rio Agrio and RioGuadiamar in Spain); human health risk assessments on behalf of provincial regulators inWawa, Ontario and Yellowknife N.W.T. related to historic ore roasting operations in thosecommunities; and participating on behalf of the Government of Canada in the peer review andrecommendation of improvements to the human health risk assessment for the Sydney TarPonds, Nova Scotia.(ii) DR. THOMAS BURNETT

Dr. Burnett holds his Ph.D. in chemical engineering. He was employed by Inco Limited for 28years. He was the former Director of Environmental Affairs for Inco worldwide. He is familiar

with almost every aspect of nickel mining and refining practices, and in particular with all ofInco’s operations worldwide, including Port Colborne.

(iii) DR. ERNEST MASTROMATTEO

Dr. Mastromatteo is trained as a medical doctor and as an epidemiologist. He is the formerChair of the Ontario Medical Association’s Committee on Public Health. He is also the formerChair of the Ontario Medical Association’s Occupational Health Committee. As well, for anumber of years he was the head of Inco’s Occupational and Environmental Health Division. In

this capacity he personally directed a 50,000 plus worker study that became one of the majorpieces of evidence that the Government of Canada relied on in determining that the form ofnickel found in Port Colborne is carcinogenic.

(iv) MR. ALLEN BALDWIN



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Mr. Baldwin was employed by the Ontario government from 1969 to 1996. In 1969 he andothers established what (in 1971) became the Ontario Ministry of the Environment’s area officein Welland, Ontario. During his career with the MOE, he was the Senior Abatement Officer andthen the Enforcement Officer with direct responsibility for overseeing the operation of Inco’s

Port Colborne refinery. As a result, he personally performed dozens of inspections of therefinery, and is familiar with its operations over more than 25 years.

(v) DR. IRENA BUKA

Dr. Buka is a senior pediatrician and Director of Canada’s only Children’s EnvironmentalHealth Clinic. The clinic is part of a network of ten others located across the United States.

Dr. Buka is a member of the Canadian Environmental Health Section of the International JointCommission, and was recently appointed to represent Canada under NAFTA on the ExpertAdvisory Board of the Children’s Environmental Co-operative. She has an extensivebackground in environmental contamination issues, particularly lead.

(vi) DR. HAROLD HOFFMAN

Dr. Hoffman is a medical doctor who specializes in occupational health and medicine. Hiswork in these areas relates directly to the types of hazards residents in Port Colborne havebeen exposed to. He is also a co-Director of the Children’s Environmental Health Clinic.

(vii) DR. DEAN HESTERBERG

Dr. Hesterberg is a soils scientist at North Carolina State University. He specializes in theanalysis and effects of metal contamination in soils. Dr. Hesterberg has access to the UnitedStates Department of Energy’s Brookhaven National Laboratory on Long Island, New York,the site of the National Synchrotron Light Source where X-Ray Absorption Spectroscopy

(XAS) can be performed. An x-ray beam up to one million times more powerful than thosefound in hospitals is used to determine the structure between atoms within soil samples.There are only approximately 50 sites in the world with this capability, the most recentlyconstructed costing in excess of $1 billion.

(viii) DR. DAVID PENGELLY

Dr. Pengelly is a professor at McMaster University in Hamilton, Ontario and at the University ofToronto. He specializes (in part) in indoor air sampling and monitoring. Over the past 25years he has conducted numerous air quality studies in residential, industrial and schoolsettings for a wide variety of clients, including the World Health Organization.



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(ix) BODY COTE-ORE TECH LIMITED

Body Cote is the former Ontario Research Foundation, which has now been privatized. Body

Cote is one of the largest industrial sampling and testing companies in Canada, with more than500 employees. They have been assisting by conducting tests on both the exteriors andinteriors of certain homes in Port Colborne.

(x) TERRAPROBE LIMITED

Terraprobe is a firm of geo-technical and environmental engineers with extensive experience insoil and soil stability issues, hydrogeological issues, and in examining and engineering theclean up of contaminated sites. With over 80 employees located in 4 offices across Ontario,

they have been involved in many subsidence and environmental remediation projects over thepast 25 years. They recently completed the geo-technical (soil and stability) engineering aswell as the clean up of contaminated lands for the new Air Canada Centre in Toronto, home tothe Toronto Maple Leafs and Toronto Raptors.

(xi) PINCHIN ENVIRONMENTAL LTD.

Pinchin Environmental Ltd. is one of Canada's largest environmental, health and safetyspecialist firms, with over 140 employees in 21 offices across the country. Pinchin providesengineering, consulting, management, implementation and training in air emissions,

occupational health and safety, environmental assessment and remediation, hazardousmaterials (asbestos, lead, mould etc.), indoor air quality and laboratory services.

(xii) HUMPHREYS APPRAISAL SERVICES INC.

Humphreys Appraisal Services Inc. have extensive experience with property valuation issuessurrounding contaminated sites. Most recently they were retained in relation to the Walkertonwater tragedy, where they organized the team that provided loss valuation data in relation tothe approximately 6,000 properties in Walkerton.

(xiii) MR. BARRY LEBOW

Mr. Lebow has over 30 years of real estate appraisal and valuation experience. He has testifiedmany times as an expert witness in court proceedings relating to issues of contamination.Amongst many other retainers, he was one of the leading valuation experts on behalf of



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thousands of home owners whose houses were contaminated by urea formaldehyde (“UFI”)insulation.

G. LEGAL COUNSEL’S RETAINERS

67. In the course of advancing the plaintiff’s action, legal counsel for the plaintiff have also been

retained directly by Class Members to assist with matters related to the contamination of their

properties prior to the motion for certification in this matter being adjudicated.

68. To date, counsel has been directly retained by approximately 250 families representing

approximately 1,000 individual claimants.

H. LEGAL COUNSEL’S EXPERIENCE

69. Legal counsel for the plaintiff also have extensive experience in dealing with large groups of

people in a legal context (ie. class proceedings, representative actions, classes within

insolvency proceedings etc.). Active matters that are still ongoing at this time include Eaton’s

(20,000 members), Dylex (2,500 members), Confederation Life (2,000 members), McMaster

University (4,300 members), Wetsruc (800 members), AFG (600 members), Kingsway (400

members), National Trust (1,300 members), Colgate (500 members) and Kidd Creek (2,900

members). A much larger number of other proceedings involving similarly large groups of

people have been completed.

I. THE PLAINTIFF’S LITIGATION PLAN



24

70. In addition to being able to provide expert witnesses and experienced legal counsel, the

plaintiff has prepared a litigation plan to allow this action to proceed in an orderly manner

following certification. Attached and marked as Exhibit “B” is a copy of the plaintiff’s litigation

plan.

J. INDIVIDUAL ACTIONS AGAINST INCO

71. I have spoken to Ms. Ellen Smith, who has conducted research regarding previous legal

claims filed against Inco in the Port Colborne area.

72. She has advised that in 1994, the Augustine family filed a statement of claim against Inco

related to high levels of contamination discovered on their family farm (the “Augustine Claim”).

Attached and marked as Exhibit “C” is a copy of the amended statement of claim in the

Augustine v. Inco Limited action dated December 13, 2000.

73. I have been advised by Ms. Smith and others that despite the expenditure of very large

amounts of time, money and effort by the Augustine family, after more than 7 years of

litigation the Augustine Claim is still only at the discovery stage.

74. Knowing what is required to attempt to litigate a property damage claim against Inco and the

means of the average Port Colborne family, it would be incredibly difficult for virtually any

family in Port Colborne to find access to the time, money and many other resources required



25

to pursue a property damage claim against Inco on an individual basis.

75. As a general rule, personal injury claims are even more complex, expensive and difficult to

prove. It should be noted that even a claim the size of the Augustine Claim is only for

property losses, and not for damages to health or other types of personal injury.

76. For decades, Inco’s primary response has not been to litigate, but to purchase properties when

issues regarding contamination have arisen. For example, a search of court records in

Welland, Ontario revealed that no claims appeared to have been filed against Inco (other than

the Augustine Claim) within the past 15 years. Instead, when crop failures have occurred or

when residents have complained, Inco has regularly purchased their properties. As a result,

Inco is now the largest private land owner in Port Colborne.

77. However, on November 23, 2000, Dr. Bruce Conard (Inco’s Vice President of Environmental

and Health Sciences) at a Community Based Risk Assessment Public Liaison Committee

meeting stated in response to questioning by a Class Member regarding Inco’s more than 800

acres of land holdings in Port Colborne that Inco no longer wants to be in the real estate

business, and as a result is no longer voluntarily offering to purchase contaminated lands.

78. On July 19, 2001, at another Public Liaison Committee meeting a Class Member asked if the

costs of the remediation were equivalent to buying the home, would Inco consider this. Mr.

Del Fraipont (Manager of the Refinery) stated that Inco was not entertaining the idea of buying



26

homes. That Inco was committed to the CBRA process.

79. At the same time, Class Members in the most heavily contaminated areas (eg. the East Side

Community) have almost universally expressed a very strong desire to see their properties

purchased by Inco.

K. LYNNVIEW RIDGE

80. In order to obtain the information found in the following 11 paragraphs, I have consulted with

Mr. Emil Kaminski and with Mr. Gavin Fitch, a lawyer with Rooney Prentice in Calgary, Alberta,

the firm acting on behalf of the Lynnview Ridge Residents Action Committee, the residents

association formed in response to the following issue.

81. Lynnview Ridge, a suburb located in southeast Calgary, was home to an oil refinery built by

Imperial Oil. The refinery operated for some 50 years before it was closed in the 1970's. The

Lynnview Ridge housing development was built in the early 1980's after the land was re-zoned

for residential use. Currently there are 160 single family dwellings in the Lynnview Ridge

community, and 86 households in 7 multi-family dwellings in the Lynnview Terrace area. The

average house value in the Lynnview Ridge area is estimated at between $150,000 and

$180,000.

82. In May of 2001, initial environmental tests were carried out by Alberta Environment in the



27

area, primarily for the presence of elevated levels of lead. Of approximately 500 soil samples

that have now been taken, 28% have exceeded Alberta Environment’s current guideline of 140

parts per million for lead, with less than 5% being over the former Alberta Environment

guideline of 500 parts per million.

83. The Calgary Regional Health Authority has indicated that they have no reason to believe that

there are elevated levels of lead in residents in the neighborhood. In fact, a blood sampling

study was conducted on a sample of children from the Lynnview Ridge neighborhood between

1989 and 1991, with no indication of elevated blood lead levels or related health issues. Blood

lead levels in children from the Lynnview area were not significantly different from those in

children from other neighborhoods studied.

84. However, on June 25, 2001, Alberta Environment issued an Environmental Control Order

requiring the development and implementation of a clean up plan for the entire Lynnview Ridge

area. Attached and marked as Exhibit “D” is a copy of a Government of Alberta News Release

dated June 25, 2001 entitled “Environmental Protection Order issued in relation to soil

contamination in Lynnview Ridge subdivision.”

85. Imperial Oil has chosen to appeal this Environmental Protection Order, and the matter is

currently before Alberta’s Environmental Appeal Board.



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86. However, despite the appeal, in August of 2001 Imperial Oil offered residents a buy-out

package. A purchase formula was developed awarding the property owners 120% of the City

of Calgary’s 2000 market value assessment of each single-family dwelling. This was designed

to cover the property value, as well as all associated costs and claims.

87. For homeowners who choose to remain in the neighborhood, Imperial has offered a lump sum

payment of $10,000 per household to cover the period while their property is being excavated

for lead remediation.

88. Owners wishing to sell their homes in Lynnview Ridge were given a deadline of October 31st

2001, by which they had to contact Imperial Oil. The buy-out offer expired after that date. In

order to plan and implement a remediation program, each real estate transaction must close so

that Imperial has possession of the property no later than March 31, 2002. The offer to

purchase will be subject to a release covering costs and associated claims, and to other

normal conditions associated with a real estate transaction. However, the release only pertains

to property damage claims, and health claims are excluded from the release.

89. One hundred and thirty five of the 160 single family home owners (or approximately 85%)



29

have accepted Imperial Oil’s buy-out package.

90. For those owners who wish to remain, and for those properties sold to Imperial Oil (which

Imperial Oil intends to restore and resell) a remediation plan has been prepared. The

remediation report presented to Alberta Environment on August 16, 2001 proposes a plan to

remove lead and hydrocarbons remaining in the area. This plan is still being reviewed by

public authorities.

91. To date, no legal claims appear to have been have been filed against either Imperial Oil or any

public authority as a result of this matter.

92.

I make this affidavit in support of the plaintiff’s motion for certification

and for no improper purpose.

SWORN BEFORE ME at the City )

of Toronto, this 16th )

day of January, 2002 )

)

)WOLFGANG KAUFMANN

)

A commissioner etc. )