The representative plaintiff resides one block away from Inco's Port Colborne refinery where, since 1918, Inco has operated a refinery producing nickel, copper, cobalt and other precious metals. The refinery is located on 500 acres of land on the shores of Lake Erie in the City of Port Colborne in the Regional Municipality of Niagara.
The plaintiff brought this claim as a Class Proceeding under the Class Proceedings Act, 1992 on behalf of all persons who, since March 26, 1995 and within a defined surrounding area, either occupy or own property or attended schools operated by the District School Board of Niagara or the Niagara Catholic District School Board, or are the parent, grandparent, child, grandchild, sibling or spouse of a deceased person in the class. The plaintiff maintains that Inco has and does emit and discharge hazardous contaminants into the natural environment, including the air, water and soil of Port Colborne. The contaminants include oxidic, sulphidic and soluble inorganic nickel compounds, copper, cobalt, chlorine, arsenic and lead. According to the Statement of Claim, nickel oxide, a known carcinogen, is the most abundant contaminant emitted by Inco and can now be found throughout the lands owned, occupied or used by members of the class, in quantities far exceeding all accepted levels. Section 103 of the EBR is listed as one cause of action.
The plaintiff is claiming punitive and exemplary damages in the amount of $150 million for Inco's reckless disregard for the health, safety and pecuniary interests of class members in the release of the contaminants, and compensatory damages in the amount of $600 million to compensate the members of the class for:
- The loss of use and enjoyment of property they own, occupy or use;
- The loss of value of property and the ability to sell, finance or mortgage property they own, occupy or use;
- Damage to their physical and emotional health, including irritation of the skin, eyes, nasal passages and lungs, nausea, headaches, dizziness, pain and suffering, loss of income, present and future care costs, impairment of earning ability, loss of enjoyment of life, anxiety, mental distress, and more;
- Long term and short term exposure to known carcinogens and toxic substances and their long term health consequences and risks.
The plaintiff is also seeking an injunction against the two school boards preventing them from allowing members of the class who attend the school from coming into contact with the contaminants while they attend or use the Humberstone Public and St. Therese Catholic schools. The claim also includes prejudgment and postjudgment interest and costs on a solicitor and client scale.
The plaintiff claims that the defendants, as well as the MOE, knew or ought to have known of some or all of the damage that the ongoing release of contaminants and other activities has caused and continues to cause to class members. However, the plaintiff contends that they have failed to take steps to prevent or attempt to prevent the damage to health and property that the class members have been suffering. According to the plaintiff, Inco has admitted liability for some portion of the damages and has acknowledged their responsibility, but has taken few steps to assess the extent of the damages or to compensate the class members.
According to the plaintiff, Inco was negligent in its operation and monitoring of the refinery, the equipment and procedures used, and in its failure to study the impacts of the refinery. They also allege that Inco failed to warn the class members of the risk from its operations and failed to respond to public complaints. The plaintiff maintains that this negligence and failure to act caused a nuisance and is polluting the area and harming the area residents. The plaintiff argues that Inco is liable for the activities at the refinery and the ongoing release of contaminants into the environment and onto the lands of the class members, based on the following causes of action: negligence; nuisance; public nuisance under section 103 of the Environmental Bill of Rights; trespass; discharging contaminants with adverse effects under section 14 of the Environmental Protection Act; and the doctrine of strict liability in Rylands and Fletcher . The plaintiff also pleads and relies upon the provisions of the Health Protection and Promotion Act and argues that the Region, through the actions of its employee the Medical Officer of Health for Niagara, is liable for negligent misrepresentation in that it repeatedly advised the class members that the emissions from the refinery have never posed any risk to human health. Finally, the plaintiff argues that all the defendants knew or ought to have known of the release and effects of the contaminants, thereby breaching their duty of care to the class members, and failed to warn them or take any steps to remedy the damage they suffered.