$36 Million Dollar Class Action Award Goes Up in Smoke
Stephen Waque, a senior partner at Borden Ladner Gervais LLP with expertise in expropriation law, highlights an important decision by the Ontario Appeal court regarding Inco’s nickel emissions and the impact of this decision on the real estate sector.
On October 7, 2011, the Ontario Court of Appeal in Smith v. Inco, overturned the decision of the Ontario Superior Court awarding $36 million dollars to a class of residents in Port Colborne, Ontario for property damages arising from the Inco nickel emissions. The decision provides new clarity regarding damages under private nuisance and strict liability, or Rylands v. Fletcher.
The Appeal Court’s stunning reversal arises from the particular facts and evolution of the class action, including through certification and trial. Prior to 1985, Inco Limited (inco) operated a nickel refinery in Port Colborne, Ontario for 66 years. During this lengthy period, the nickel particles emitted from the smoke stack landed on the claimants’ properties, becoming part of the soil. Common sense told everyone that the smoke coming from the stack contained nickel.
Stephen Waque is a senior partner with BLG and a founding director and past president of the Ontario Expropriation Association. He has more than 30 years experience in the practice of expropriation legislation and real estate law. Stephen is the author of New Law of Expropriation, a two-volume reference text that deals comprehensively with government acquisitions of real estate and business interests, and is considered an authority in Canada. For more information on Stephen Waque please visit: http://www.blg.com/en/home/our-professionals/Pages/Waque-Stephen.aspx