The Ontario Court of Appeal has overturned the July 6, 2010 decision of the Honourable Mr. Justice Henderson in Smith v. Inco Ltd (2011 ONCA 628), setting aside the initial award of $36 million in damages. At trial, the claimants successfully argued that the value of their properties were diminished because of nickel contamination originating from Inco’s refinery in Port Colborne in the 66 years prior to 1985. Henderson J found that Inco was liable in private nuisance and under the principle of strict liability in Rylands v Fletcher (1866) LR 1 Ex 265, aff’d (1868) LR 3 HL 330.
There was no liability in private nuisance because the plaintiffs could not establish that the presence of nickel in the soil caused any actual damage to the properties or rights associated with it. On Rylands, the plaintiffs failed to show that Inco’s use of the refinery was ‘non-natural’, ‘exceptionally dangerous’ or ‘extraordinary or unusual’ (for a nickel refinery). The three-member panel ruled unanimously that the plaintiffs failed to prove that Inco was liable or that their property values had suffered.
On December 5, 2011, the Plaintiffs 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. The Plaintiff expects a decision on the application for leave to appeal to the Supreme Court of Canada in approximately six months.
- Senior Consultant
Chris advises on acquisitions and dispositions of mines and mining companies, project development and mine operations throughout Canada and the world. He has assisted in the structuring and negotiation of hundreds of ...
Christine practices environmental and Indigenous law, providing advice in respect of major project development, environmental assessment, permitting, operational matters and acquisition and sale of industrial projects.
Lawson Lundell's Environmental, Indigenous and Natural Resources Blog focuses on environmental, indigenous and natural resources law, as well as related litigation. Included are summaries of significant cases from Canadian appellate courts, changes in the legal framework governing resource development including energy and climate change policy, and key decisions from the more influential regulatory bodies in Canada.
Legal Disclaimer: The information made available on this webpage is for information purposes only. It does not constitute legal advice, and should not be relied on as such. Please contact our firm if you need legal advice or have questions about the content of this webpage.