Roger writing the LAWmag
19
Sep 2010

A Civil Canadian Action: Small Town Fights Giant Toxic Polluter

On Athoe Street (that's "a-thow"; please, no teasing), Port Colborne, the remnants of “the factory” seem everywhere, even in 2010 and even though the company closed down in 1984.

Port Colborne house adA walk downtown from Athoe, over the Welland Canal, winds through a working class neighborhood and brings one front and centre to massive town blocks with boarded factories, empty but fenced off.

To the 18,000 residents, few words can conjure more scowls “Inco” (short for International Nickle Company).

For years, the patriarch of “Duhaime” in Duhaime.org has complained of the miserable re-sale value of his little townhouse (pictured below). Old yellowed Welland Tribune newspaper clippings which report on class actions adorn the hallways of his home. Mr. Duhaime, senior, for a decade had no faith in the action, always updating the visitor with the latest developments but always concluding that it was dead; that the residents had run out of money.

There were some tangible examples of something awry as the old man once insisted that I go with him to the shores of Lake Erie. There, floating on the water, were many small and very dead fish.

Rashes, cancer, asthma ... all  part of the local vocabulary.

But, finally, on October 13, 2009, Eric K. Gillepsie Law Corporation of Toronto set the case against Inco down before the Honourable Mr. Justice Henderson of the Ontario Superior Court of Justice. The residents, represented in the class action litigation by a one “Ellen Smith”, alleged that their property values had diminished because of the nickel and derivatives Inco had left in the ground and soil.

And not just nickel which, taken alone, is a relatively benign metal (nickel is an essential dietary element). The Port Colborne operations of Inco. produced nickel and nickel oxide from sulfide. Such manufacture of nickel creates nickel dust, nickel carbonyl and nickel sulfide.

In 2000, long-awaited government test results were published, confirming what the health professionals and families of Port Colborne already knew. Soil testing revealed massive contamination; in some cases, thousands of times above acceptable levels. 36 of the 37 test properties revealed contamination.

Private studies showed a level of nickel in some Port Colborne homes to be thousands of times more than the average home.

Even the drinking water was compromised.

Suddenly, everyone in Port Colborne adopted the custom of taking their shoes off at the door: but not for spiritual reasons. Bottled water was a hot commodity.

Meanwhile, no one could sell their house for a decent price.

The trial ran two months and Christmas came late, but it came. Of some solace to Inco-Vale shareholders, the judge did not find Inco negligent but still held it liable for the contamination basing it on a 1868 English strict liability tort case:

"The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of his escape." 1

Dad's house in Port ColborneInco showed moxie at trial arguing, presumably with a straight face, that operating a nickel refinery in Port Colborne was a natural use of the land!

But Rylands v Fletcher is what it is and Henderson liked it: if "cuss" happens and your thing caused it, you pay for it.

In regards only to the loss of property values, Justice Henderson divided the residents into three groups based on pollution concentration, and awarded damages to each home-owner of between $2,000-$23,000.

Peanuts, really, not just to Duhaime Senior, but to all Port Colborne residents. This is a small town without the financial and legal resources of Inco Inc. For years Inco has dumped the by-products of nickel above and below the streets of Port Colborne. Then, the company tried to nickel and dime its way out of the litigation by pleading that any claim was statute barred: hoping to ring the death bell of limitations on the aggrieved residents.

Again, Henderson wasn't buying it properly pointing out that the residents could not of known of the source of the damages until the 2000 test results.

Duhaime Senior is a recent arrival to Port Colborne. The most tragic sequalae of the passage of Inco through the small town is the empty tables at the senior’s club. The increased incidence of lung and sinus cancer among the workers is over 40% greater than normal. The class action group decided early on to abandon their health claims in order to facilitate certification as a class action, a complicated and formal process in law. But the far greater damage must of been the health issues.

Inco is now owned by a Brazilian mining giant, Vale, and called Vale Inco. Shocker: it is appealing the decision.

Many Canadians live in the shadow of a factory smoke-stack, and under the invisible cloud of toxic discharge. Still, Canada is a land of timid judges and small damage awards against corporations.

This is why heirs and relatives of those who die or are handicapped because of toxic factory discharges - and they are legion - watch Port Colborne with bated breath and hope that justice may finally grab a firm leg iron upon the ankles of uncaring corporations, and make them cough up a few bucks of bitter compensation.

REFERENCES:

  • Chovil, A. and others, Respiratory Cancer in a Cohort of Nickel Sinter Plant Workers, British Journal of Industrial Medicine 1981;38:327-333
  • Kramer, G., Polluter Must Pay Landowners $36M, Lawyers Weekly, August 27, 2010, page 14
  • Gillepsie, Eric, Barrister & Solivitor, press release June 4, 2003, Inco Test Results Confirm High Cancer Risks Inside Port Colborne Homes
  • Rylands v Fletcher, 1868 L.R. 3 (House of Lords; note 1)
  • Smith v. Inco, 2010 ONSC 3790

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