The Ontario Court of Appeal has agreed to allow the Environmental Commissioner of Ontario, the Canadian Environmental Law Association, and Friends of the Earth represented by Sierra Legal Defence Fund to intervene on the issue of costs in what many view as the leading proposed environmental class action in Canada.
In 2001, Port Colborne resident Wilfred Pearson launched a $750 million claim against Inco, the Ontario government and others for alleged community-wide pollution caused by the nickel mining and refining company. In 2003 and 2004, settlements were reached with all defendants except Inco. To date, two levels of Ontario courts have held that while individual actions can still be brought against Inco, the claims are not suitable to proceed as a class action. In September of 2004, Ontario’s Court of Appeal granted Pearson the right to appeal those decisions. A hearing is scheduled for May 30, 2005.
Given its precedent setting nature, the case has attracted national attention. Last week, three of Ontario’s most highly respected environmental organizations sought permission to make submissions on key issues. Among them is the Environmental Commissioner of Ontario, an officer of the Legislature. In its 10 year history, this marks only the second time that the ECO has intervened in a proceeding. In addition, two of Canada’s most recognized public and private law advocacy groups, the Canadian Environmental Law Association and Sierra Legal acting on behalf of Friends of the Earth, also brought applications. All three have previously intervened in major environmental cases before the Supreme Court of Canada. Earlier this week, Ontario’s Court of Appeal released its decision allowing all three to present arguments on the issue of costs.
“Access to justice and the potential effect of costs awards are key issues,” said Dr. Rick Smith, Executive Director, Environmental Defence. “The Environmental Commissioner, CELA, and Friends of the Earth through Sierra Legal each bring very unique perspectives. We believe they will really assist the court in coming to a fair and balanced decision when the larger public interests associated with this case are considered.”