The Supreme Court of Canada has refused Ellen Smith leave to appeal from the crushing dismissal of her class action against Inco. No reasons were given. Her lawyers now face a difficult hearing to determine how large a cheque they will have to write to Inco to pay for its legal costs, at trial and both levels of appeal.
The Court of Appeal had dramatically narrowed options for victims of historic pollution to obtain compensation from polluters. The case cuts down the scope of three key environmental torts: trespass, nuisance and Rylands v. Fletcher (negligence was narrowed by Berendsen). It also widens the gap between the broad discretion of regulators, who can, through administrative orders, make historic polluters pay, and victims, who have fewer and fewer options to obtain compensation.
Here is Dianne’s presentation on the case, given at the joint Canadian-US meeting of environmental lawyers in Vancouver: Saxe_slides NEERLS/ SEER