Death Of Environmental Class Actions Post-"Inco" - Well, Maybe Not Quite Yet…

Last year BLG's Environmental Law Cross-Country Check-Up discussed the Ontario Court of Appeal decision in Smith v. Inco, which dismissed the plaintiff's class action. Inco dealt with historic nickel contamination in the soils of Port Colborne over decades of smelting. During the past year, the class unsuccessfully sought leave to appeal the decision to the Supreme Court of Canada.

Inco was the first common law environmental class action trial in Canada. Ultimately, the class was unable to satisfy the Court of Appeal it had suffered "actual, substantial and physical harm". Chemical alteration of the soil was not viewed as compensable damage. Indeed, a $1.7 million costs award has been granted against the Class Proceedings Fund as a result of the action's failure. Moving forward, stigma claims will be much more difficult to win.