Smith v. Inco Ltd.
This class proceeding arises out of alleged environmental contamination in Port Colborne, Ontario. Inco Ltd. operated a nickel refinery that emitted nickel into the environment over the course of 66 years of operation. It is alleged that the nickel contaminated properties in the Port Colborne area and that disclosures to the public of this contamination negatively effected property values, for which class members should be compensated.
The class of persons included in the action is detailed in the Certification Order, below. Generally, it is comprised of persons owning residential property in the Port Colborne area since September 20, 2000, when the disclosure of higher than expected levels of nickel contamination is alleged to have impacted real estate values in the Port Colborne area.
The trial of the common issues in this action commenced on October 13, 2009 in Welland, Ontario before the Honourable Mr. Justice Henderson and was completed 101 days later on January 21, 2010. By reasons dated July 6, 2010, the Honourable Mr. Justice Henderson granted judgment in favour of the class in the aggregate amount of $36,000,000.
Koskie Minsky LLP and Eric Gillespie represent the Plaintiff and the class in this action.
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Latest Developments
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November 29, 2013
The Court of Appeal for Ontario dismissed the Defendant’s appeal of Justice Henderson’s cost award. A copy of the reasons of the Court of Appeal can be found here.
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October 10, 2013
Arguments were heard today by the Court of Appeal for Ontario in the Defendant’s appeal of the costs decision of The Honourable Mr. Justice Henderson dated September 10, 2012.
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May 6, 2013
Leave to appeal the costs decision of The Honourable Mr. Justice Henderson dated September 10, 2012 was granted to the Defendant.
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September 20, 2012
The Defendant is seeking to appeal the costs decision of The Honourable Mr. Justice Henderson dated September 10, 2012.
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September 10, 2012
The Honourable Mr. Justice Henderson rendered his costs decision awarding the Defendant at total of $1,766,000 in costs. To view a copy of the decision click here.
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June 19, 2012
The Honourable Mr. Justice Henderson heard submissions as to costs of trial.
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April 26, 2012
The Supreme Court of Canada denied the plaintiff’s application for leave to appeal the judgment of the Court of Appeal for Ontario. The Court of Appeal for Ontario’s dismissal of the Plaintiff’s action therefore stands and this action is now concluded.
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February 7, 2012
The Plaintiff served and filed its reply submission with respect to its application for leave to appeal the decision of the Ontario Court of Appeal to the Supreme court of Canada. A copy of the Plaintiff’s reply can be found here. A decision by the Supreme Court of Canada on whether to grant leave to appeal the Ontario Court of Appeal’s decision is expected in the coming months.
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January 19, 2012
The Defendant served and filed its response to the Plaintiff’s application for leave to appeal the decision of the Ontario Court of Appeal to the Supreme court of Canada. A copy of the Defendant’s response can be found here.
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December 5, 2011
The Plaintiff filed its Application for Leave to Appeal to the Supreme Court of Canada seeking to appeal the decision of the Court of Appeal for Ontario which overturned the trial decision of the Honourable Mr. Justice Henderson in favour of the class. A copy of the Application can be found here. Inco will be serving and filing a memorandum in response to the appeal within 30 days.
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October 7, 2011
The Court of Appeal for Ontario granted the Defendant’s appeal of the judgment of the Honourable Mr. Justice Henderson, who found in favour of the Plaintiff class awarding $36 million in damages in July 2010. The Court of Appeal overturned the trial judge’s decision and dismissed the action. A copy of the Court of Appeal’s decision can be found here. The Plaintiff intends on filing an application for leave to appeal the decision to the Supreme Court of Canada, where such court will decide whether it will hear the appeal of the Court of Appeal’s decision by the Plaintiff. That application is due with the Supreme Court of Canada by December 6, 2011. Inco will then have 30 days to respond. The application is done in writing without any oral argument. The Plaintiff expects a decision on the application for leave to appeal to the Supreme Court of Canada in approximately six months.
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July 26, 2011
The parties continue to await the decision of the Court of Appeal on the Defendant’s appeal of the Honourable Mr. Justice Henderson’s trial judgment. The appeal was heard May 9-12, 2011 and a decision is expected in the coming months.
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May 12, 2011
Arguments in the Defendant’s appeal of the Honourable Mr. Justice Henderson’s trial decision were heard by the Ontario Court of Appeal between May 9 and May 12, 2011. The Ontario Court of Appeal reserved its decision.
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March 28, 2011
The Honourable Mr. Justice Juriansz dismissed Eco Justice/Friends of the Earth’s motion to intervene in the Defendant’s appeal through written reasons released today. Justice Juriansz held that Eco Justice/Friends of the Earth’s would not assist the court in these circumstances as their arguments did not differ in any significant way to the Plaintiffs, the arguments proposed to be addressed by Eco Justice/Friends of the Earth were not grounded in the facts of this case, and that the appellant would be prejudiced by having to respond to a new theory of liability at this late stage of the appeal. The Defendant’s appeal is set to be heard by the Ontario Court of Appeal beginning May 9, 2011.
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March 22, 2011
Eco Justice/Friends of the Earth’s motion to intervene in the Defendant’s appeal was heard this day. The Honourable Mr. Justice Juriansz reserved his decision on the motion.
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March 14, 2011
Eco Justice/Friends of the Earth, a Canadian environmental charity, is seeking to intervene in the Defendant’s appeal. Eco Justice/Friends of the Earth’s motion to intervene will be heard on March 22, 2011.
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March 2, 2011
The Defendant’s appeal of the trial decision of the Honourable Mr. Justice Henderson is scheduled to be heard by the Ontario Court of Appeal Osgoode Hall, 130 Queen Street West, the week of May 9-13, 2011. Both parties have now filed written argument in advance of the oral hearing which can be found here.
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January 19, 2011
The Defendant’s appeal from the trial decision of the Honourable Mr. Justice Henderson dated July 6, 2010 is expected to be heard by the Ontario Court of Appeal the week of May 9-13, 2011.
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December 10, 2010
The Defendant perfected its appeal to the Court of Appeal for Ontario from the trial decision of the Honourable Mr. Justice Henderson dated July 6, 2010.
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August 3, 2010
The Defendant filed its Notice of Appeal seeking to appeal the trial decision of the Honourable Mr. Justice Henderson dated July 6, 2010.
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July 6, 2010
The Honourable Mr. Justice Henderson renders judgment in favour of the class members in the aggregate amount of $36,000,000. In making his decision, the Honourable Justice Henderson held that “the Plaintiff has proved on a balance of probabilities that the negative publicity and public disclosures from and after September 2000 significantly affected property values…”. After reviewing all of the evidence presented during the trial, Justice Henderson ruled that the aggregate damage to the class was $36,000,000 which he allocated as follows: (i) $9,000,000 aggregate for the Rodney Street Area, (ii) $15,000,000 aggregate for the East Side Area, and (iii) $12,000,000 aggregate for the West Side Area.
A full copy of the trial decision can be found by accessing the documents tab to the right of this page.
Closing arguments in the trial were completed on January 20, 2010, 101 days after the commencement of the trial.
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May 20, 2010
The Honourable Mr. Justice Henderson delivered his ruling with respect to the Plaintiff’s motion to amend the common issues. The Honourable Justice Henderson permitted the Plaintiff’s amendments of the common issues and added a common issue with respect to limitation periods at the Defendant’s request. The parties are to submit written submissions with respect to the amendments and the new limitation period common issue by June 4, 2010 with responding submissions by June 11, 2010.
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May 10, 2010
The Plaintiff’s motion to amend the common issues to remove the word “ongoing” with respect to the Defendant’s discharge of nickel and to add “private” nuisance in addition to “public” nuisance as a cause of action was heard this day.
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January 21, 2010
101 days after the commencement of the trial of the common issues, closing arguments were completed on January 21, 2010. The Honourable Mr. Justice Henderson, presiding, reserved his decision which is expected within 2-3 months.
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October 14, 2009
The Plaintiff brought a successful motion for judgment on common issues 6(a) and 6 (b) which confirms that Inco is the source of the vast majority of elevated levels of nickel found on the class members’ lands and that the vast majority of nickel contamination in the Rodney Street area originated from Inco.
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October 13, 2009
The trial of the common issues commenced at the Superior Court of Justice in Welland before the Honourable Mr. Justice Henderson. It is expected that the trial of the common issues will be completed by January 31, 2010.
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June 29, 2009
The Honourable Mr. Justice Cullity amends the class definition. As a result of Justice Cullity’s order this class action will now proceed on behalf of residential property owners only. Notice to the class of the change to the class definition was published in newspapers in and around Port Colborne. To view a copy of the Notice of Change of Class Definition please click here.
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February 18, 2009
Inco’s motion to decertify the action as a class proceeding was dismissed by the Honourable Mr. Justice Cullity on February 18, 2009.
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March 17, 2007
The deadline to opt out of the class action expired.
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June 29, 2006
Application for leave to appeal the certification Order of the Court of Appeal for Ontario to the Supreme Court of Canada was dismissed.
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November 18, 2005
This action was certified as a class proceeding by Order of the Court of Appeal for Ontario, dated November 18, 2005
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November 29, 2013
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Documents
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Orders and Reasons
- November 29, 2013 Reasons
- September 10, 2012 Costs Decision
- November 18, 2011 Endorsement
- July 29, 2010 Endorsement
- July 6, 2010 Reasons of the Honourable Justice Henderson
- July 6, 2010 Trial Judgment
- June 29, 2009 Notice of Change of Class Definition
- January 19, 2006 Certification Reasons
- November 18, 2005 Certification Order
- Appeal to the Supreme Court of Canada
- Appeal of Trial Judgment
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Trial Materials
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Notice of Appeal dated August 3, 2010
- July 6, 2010 Reasons of the Honourable Justice Henderson
- July 6, 2010 Trial Judgment
- May 20, 2010 Order
- January 14, 2010 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, January 14, 2010 re: Filing of Previously Marked For Identification Exhibits as Numbered Exhibits
- January 14, 2010 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, January 14, 2010 re: Plaintiff's Request to Introduce New Data to David Atlin During Cross-Examination
- January 13, 2010 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, January 13, 2010 re: Evidence of David Atlin and Request by Plaintiffs' Counsel for Witness to do Further Calculations
- January 11, 2010 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, January 11, 2010 re: Reference by David Atlin to Documents in Exhibit 46
- December 7, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, December 7, 2009 re: Plaintiff's Application to Qualify Troy Austrins as an Expert
- December 3, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, December 3, 2009 re: Qualifying Timothy Hu as an Expert Witness
- December 1, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, December 1, 2009 re: Admissibility of Questions Regarding Lead Content
- December 1, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 30, 2009 re: Plaintiff's Application to Cross-Examine its Own Witness, Dave McLaughlin
- November 26, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 26, 2009 re: Admissibility of Public Documents (Transfers & Deeds) in Cross-Examination of Dr. Skaburskis
- November 26, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 26, 2009 re: Scheduling Plan
- November 25, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 25, 2009 re: Voir Dire Regarding Admissibility of Exhibits C, J, L, Q & R
- November 24, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 24, 2009 re: Voir Dire - Request to Admit Further Documents
- November 17, 2009 Ruling of the Honourable Mr. Justice Henderson, November 17, 2009 re: Opinion Evidence of Dr. Tomlinson
- November 13, 2009 Ruling of the Honourable Mr. Justice Henderson, November 13, 2009 re: Voir Dire - The Admissibility of Expert Evidence of Todd Hilsee
- November 13, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 13, 2009 re: Hilsee Report
- November 12, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 12, 2009 re: Re-Examination of Robert Maughan
- November 9, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 9, 2009 re: Request for Robert Maughan to do Further Calculations
- November 4, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 4, 2009 re: Cross-Examination on Conclusions of Expert at the Qualifications Voir Dire
- November 3, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 3, 2009 re: Cross-Examination of Data and Documents Prepared by the Defendants Identified as Exhibits "C" Tab 8, "D" and "E"
- November 2, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, November 2, 2009 re: Exhibit "C" - Teranet Brief
- October 26, 2009 Ruling of the Honourable Mr. Justice Henderson, October 26, 2009 re: Opinion Evidence of Robert Maughan
- October 22, 2009 Transcript of Oral Ruling of the Honourable Mr. Justice Henderson, October 22, 2009 re: Proposed Evidence of Robert Maughan
- October 20, 2009 Endorsement of the Honourable Mr. Justice Henderson, October 20, 2009 re: Leave to Tender Expert Witness
- October 14, 2009 Order of the Honourable Mr. Justice Henderson dated October 14, 2009, on common issues 6(a) and 6(b)
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Order of the Honourable Mr. Justice Henderson dated October 14, 2009, on common issues 6(a) and 6(b)
- January 21, 2010 Draft Transcript of Defendant's Closing Argument and Plaintiff's Reply, January 21, 2010
- January 19, 2010 Closing Argument of the Defendant, Inco Limited (factum)
- January 20, 2010 Draft Transcript of Plaintiff's Closing Argument and Defendant's Closing Argument, January 20, 2010
- January 19, 2010 Draft Transcript of Plaintiff's Closing Argument, January 19, 2010
- January 18, 2010 Plaintiff's Closing Argument (factum)
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Plaintiff's Closing Argument (factum)
- January 14, 2010 Draft Trial Transcript of Examination of David Atlin
- January 13, 2010 Draft Trial Transcript of Examination of David Atlin
- January 12, 2010 Draft Trial Transcript of Examination of David Atlin
- January 11, 2010 Draft Trial Transcript of Examination of David Atlin and Procedural Matters, January 11, 2010
- December 10, 2009 Draft Trial Transcript of Reasons for Decisions Regarding Motion for Directions
- December 8, 2009 Draft Trial Transcript of Plaintiff's Read-ins and procedural matters
- December 7, 2009 Draft Trial Transcript of Examination of Troy Austrins
- December 4, 2009 Draft Trial Transcript of Examination of Dr. Peter Tomlinson and Geoffrey Dobilas
- December 3, 2009 Draft Trial Transcript of Examination of Timothy Hu and Dr. Peter Tomlinson,
- December 2, 2009 Draft Trial Transcript of Motion for Directions Regarding the Defendant's Proposed Decertification Motion, December 2, 2009
- December 2, 2009 Draft Trial Transcript of Examination of Dave McLaughlin
- November 30, 2009 Draft Trial Transcript of Examination of Dave McLaughlin
- November 30, 2009 Draft Trial Transcript of Examination of Dave McLaughlin
- November 27, 2009 Draft Trial Transcript of Examination of Dr. Andrejs Skaburskis and Dave McLaughlin
- November 26, 2009 Draft Trial Transcript of Examination of Dr. Andrejs Skaburskis
- November 25, 2009 Draft Trial Transcript of Examination of Dr. Andrejs Skaburskis
- November 24, 2009 Draft Trial Transcript of Voir Dire of Vito Cavallo
- November 23, 2009 Draft Trial Transcript of Examination of Dr. Andrejs Skaburskis
- November 13, 2009 Draft Trial Transcript of Procedural Matters
- November 12, 2009 Draft Trial Transcript of Examination of Robert Maughan and Dr. Mark Thayer
- November 10, 2009 Draft Trial Transcript of Examination of Robert Maughan, of Teranet
- November 9, 2009 Draft Trial Transcript of Examination of William Berkhout and Robert Maughan
- November 5, 2009 Draft Trial Transcript of Examination of Dr. Marion Steele and William Berkhout
- November 4, 2009 Draft Trial Transcript of Voir Dire of Todd Hilsee
- November 3, 2009 Draft Trial Transcript of Examination of Robert Maughan, of Teranet
- November 2, 2009 Draft Trial Transcript of Examination of Robert Maughan, of Teranet
- October 23, 2009 Draft Trial Transcript of Procedural Matters
- October 22, 2009 Draft Trial Transcript of Examination of Robert Maughan, of Teranet
- October 21, 2009 Draft Trial Transcript of Examination of Robert Maughan, of Teranet
- October 20, 2009 Draft Trial Transcript of Examination of Ellen Smith and Robert Maughan of Teranet,
- October 19, 2009 Draft Trial Transcript of Examination of Ellen Smith
- October 16, 2009 Draft Trial Transcript of Examination of Ellen Smith
- October 15, 2009 Draft Trial Transcript of Motion for Tendering of Expert Report and Examination of Ellen Smith
- October 14, 2009 Draft Trial Transcript of Motion for Judgment and Tendering of Expert Report (p. 52-121)
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Draft Trial Transcript of Motion for Judgment and Tendering of Expert Report (p. 52-121), October 14, 2009
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- Motion to Amend Common Issues
- Pleadings
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Orders and Reasons
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Relevant Links