Ontario Court Of Appeal Overturns Canada’s Largest Environmental Class Action Judgment

In Smith v. Inco Limited, a judge of the Ontario Superior Court of Justice held Inco liable in private nuisance and strict liability, awarding class members $36 million in damages for loss of value to their properties as a result of emissions from a nickel refinery operated by Inco (now Vale) in Port Colborne, Ontario. In dismissing the action, the Court of Appeal held that the plaintiffs had not demonstrated that Inco was liable to the class members under the doctrines of strict liability and private nuisance, and found that there were no damages suffered.

The class action had been brought on behalf of approximately 7,000 residential property owners of Port Colborne in respect of Inco's operation of a nickel refinery between 1918 and 1984.   Inco's operations had resulted in the emission of nickel particles, primarily nickel oxide, onto the properties of the class members. It was never alleged that Inco operated the refinery in a negligent manner or that it did