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The Supreme Court of Canada (SCC)  has spoken: past and present neighbours of the notorious Sydney, Nova Scotia Tar Ponds area cannot bring an environmental class action against the federal and provincial governments for loss in property value and for intensive medical supervision. The neighbours wanted to hold the federal and provincial governments liable for air, water and soil pollution caused by the historic Sydney steel mill and coke works, and the waste they dumped in the Tar Ponds.

For crass political reasons, the two governments had taken over and subsidized the money-losing, privately owned mill, its coke works and Tar Ponds half a century ago. Government money (much of it federal) has since been used to bury and cap the worst of the contaminants on site.

This leaves undisturbed the decision of the Nova Scotia Court of Appeal in Canada v. MacQueen.

As we wrote earlier, the Court of Appeal decertified the environmental class action, in an important decision on environmental torts for historic contamination. The Court ruled that the neighbours’ pleadings did not support the cause of action of strict liability as based on the rule in Rylands v. Fletcher.  They also did not support the causes of action of trespass, battery, and negligent battery.

The Court ruled that the remaining causes of action, namely, nuisance, negligence, and breach of fiduciary duty, were not sufficiently common to all the prospective class members to justify certification as class actions. A class action lawsuit therefore would not save judicial resources nor give claimants easier and less expensive access to justice, because individual issues would overwhelm the common ones.

Last week, the SCC refused the neighbours’ application for leave to appeal. As is common practice, the SCC did not give reasons for its decision not to hear the case.

The plaintiffs can still attempt to pursue individual claims under the causes of action that the Court of Appeal did not dismiss – i.e. negligence, nuisance and breach of fiduciary duty. However, they have lost the many advantages of a class action, such as sharing legal and expert fees, and much greater willingness of counsel to litigate on a contingency basis. Another hurdle is the chill cast by the hefty $700,000 costs award that the Court of Appeal ordered the neighbours to pay for the failed certification attempt. Reportedly, two law firms involved in the case will pay the award.

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