After eight years of legal wrangling, the Sydney Tar Ponds class action has finally been certified. However, the plaintiffs’ chances of ultimate success will be significantly reduced if the Smith v. Inco decision stands.
Justice John Murphy certified the Sydney suit against the provincial and federal governments, for a class headed by representative plaintiffs — Neila MacQueen, Joe Petitpas, Ann Ross and Iris Crawford. The plaintiffs allege battery, strict liability and nuisance, trespass, negligence and breach of fiduciary duty. The class of property owners and occupants are seeking financial compensation for lost property value and a medical monitoring fund for contamination associated with the operation of the coke ovens and tar ponds between 1967-2000.
The class boundaries are defined by soil levels of lead in the neighbourhoods of Whitney Pier, Ashby and north end Sydney, an area reportedly including about 6,000 properties. South end Sydney, where data regarding lead is not as extensive, was not be included. Since personal injury claims from historic exposure have never been certified, the plaintiffs are not seeking compensation for personal injury.
Nova Scotia had conceded that adequate causes of action were pleaded for breach of fiduciary duty, negligence, nuisance and strict liability, but claimed causes of action were not disclosed by the pleadings in trespass, battery and negligent battery. Canada challenged the pleading of all causes of action except fiduciary duty. Justice Murphy ruled in 2010 that all of these causes of action were certifiable. His decision on the causes of action therefore did not consider the decision of the Ontario Court of Appeal in Smith v. Inco:
“All causes of action advanced include arguable claims. Testimony at the motion hearing provided some evidentiary basis for each cause of action -it is not plain or obvious that any will not succeed. Each raises an issue to be tried and should be certified. My conclusion does not preclude either re-evaluation of causes of action being advanced or pleading amendment if additional information is developed as the claim progresses; however, progress of the case should not be delayed by more inquiry at this stage.”
The federal and provincial governments have not yet announced whether they will appeal.