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The Nova Scotia Supreme Court has certified a massive class action by Sydney residents against the governments of Canada and Nova Scotia, relating to contamination from the notorious Sydney tar ponds, and the associated steel mill and coke ovens from the old Sydney Steel.  The plaintiffs alleged that the two governments, by owning and operating these facilities between 1967 and 2000, caused or permitted the emission of contaminants on nearby people and property. The plaintiffs seek remedies including remediation of the contaminated properties,  and “remedy for nuisance and battery”, such as identification of health risks, and monitoring medical issues, but not including damages for personal injury or property damage.The total amount claimed is many millions of dollars.

On July 6, Justice Murphy certified two large classes of plaintiffs: a Property Owners’ Class and a Residential Class. The Property Owners’ Class consists primarily of current owners of properties in three neighbourhoods within 2 km of the former steel facility, whose properties have lead contamination exceeding CCME standards. Justice Murphy accepted expert evidence that lead levels in soil in these neighbourhoods were accurate proxies for a larger suite of contaminants from Sydney Steel, which included arsenic and poly aromatic hydrocarbons (PAH). The Residential Class consists of individuals who lived in the affected neighbourhoods for at least seven years. The seven year minimum was based on expert evidence from Dr. Ron Brecher, that seven years is the minimum period for assessing chronic exposure to contaminants.

Certification of the battery claim is a significant innovation, and an interesting way of coping with Canadian courts’ refusal to certify class actions for personal injury from pollutants. That is, rather than claim that the pollution made them sick, the Sydney residents claim that they were illegally assaulted by the pollution. Then, instead of claiming monetary damages for personal injury, they ask to be provided with medical monitoring to promptly identify any resulting illnesses. Presumably, any necessary medical treatment will then be provided by Medicare.

Why is Canada a defendant in this action? It is worth remembering that federal involvement in Sydney Steel was political pork. Its former private-sector operators could not make money and could not find buyers. But closing the plant would have cost significant job loss in Sydney and in the nearby coal mines. It was rescued and subsidized by federal money, i.e. largely taxes paid outside Nova Scotia, at the vehement demand of Nova Scotia politicians.  The plant was both heavily polluting and unprofitable and eventually closed. Since then, vast amounts of additional federal money have gone into cleaning up the accumulated contamination.  Has our government learned from this to stop subsidizing polluting industries?

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