affidavit mclaughlin

8/6/2019 Affidavit McLaughlin

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Court File No.: 12023/01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

WILFRED ROBERT PEARSON

Plaintiff

-and-

INCO LIMITED,

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CORPORATION

OF THE CITY OF PORT COLBORNE, THE REGIONAL MUNICIPALITY OF

NIAGARA, THE DISTRICT SCHOOL BOARD OF NIAGARA, and THENIAGARA CATHOLIC DISTRICT SCHOOL BOARD

Defendants

Proceeding under the Class Proceedings Act , 1992

AFFIDAVIT OF DAVE LEONARD McLAUGHLIN

I, DAVE LEONARD McLAUGHLIN, of the City of Toronto, Province of Ontario,

do hereby make oath and swear as follows:

1. I have been an employee of the Ontario Ministry of the Environment (the “MOE”)

working in the area of phytotoxicology since 1977. I have personally conducted soil

and vegetation investigations in the Port Colborne area since 1977. I am currently

the Standards Development Branch’s Senior Project Coordinator dealing with the

production of the MOE’s March 2002 Soil Investigation and Human Health Risk

Assessment report for the Rodney Street Community, Port Colborne, a position I

have held since April 2001. Previously, I was the Supervisor of the Branch’s

phytotoxicology program, a position I have held since 1990. From 1977 to 1990, I



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(f) failed to respond to complaints made by Class Members about the

Refinery, its emission of contaminants and other activities;

(g) failed to conduct or to cause to be conducted, accurate and completestudies of the impacts of the Refinery, in a timely fashion or at all; and

(h) failed to apply or enforce the Environmental Protection Act , R.S.O.

1990, c. E.19.

5. The issues raised by the above allegations appear to break down into the

following broad categories of inquiry:

i. Failure to respond to complaints of Class members (f);

ii. Failure to study Refinery impacts accurately, completely or fast enough

(g);

iii. Failure to warn Class members about hazardous emissions from the

Refinery (c&d);

iv. Failure to properly inspect or abate problems with the Refinery (a&e);

v. Failure to properly issue approvals for the Refinery (b);

vi. Failure to enforce the EPA (h).

6. In my view, no conclusion could be reached with respect to any of these issues

without a detailed examination of the individual circumstances of each Class

member, on a property-by-property basis, over time. This inquiry will necessarily

involve consideration of soil contaminant levels on each Class member’s property,

air pollution levels on each Class member’s property, normal land use of each

Class member’s property (eg residential, agricultural), and the kind and use of

vegetation on each Class member’s property (eg vegetable garden, farm, urban

landscaping). In addition, it will be necessary to consider the specific

characteristics and lifestyles of each of the Class members to assess any potential

damages.



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Complaints

7. Whether any given Class member actually complained to the MOE and whether

the MOE responded is an individual issue.

8. The possibility of a Class member suffering an adverse effect is property-

specific and Class member-specific and cannot be determined without an

investigation of the property in question. As a result, whether the MOE’s response

was adequate in the circumstances will require a review of the data available with

respect to a particular property at a particular point in time.

Studies of refinery impacts

9. Although the MOE did many studies over the years, until 1997, when the first

MOE Human Heath Risk Assessment (“HHRA”) was conducted, these studies were

all directed to observable ecological impacts (i.e., to plants, soil, surface water,

ground water). Studies done by my unit, the Phytotoxicology Section (“PS”) of the

MOE, were directed towards soil and vegetation impacts. Data from these PS

studies were used to evaluate the potential for human health impacts in the 1997

HHRA. Historically, the PS either responded to individual complaints made by

particular Class members, or it conducted annual surveys or special investigations.

10. In terms of general surveys, the PS sampled at the same general sites from yearto year to track changes in environmental conditions over time. Vegetation surveys

documented plant injury and determined changes in air pollution levels from year to

year, and soil investigations determined whether soil contaminant levels were

increasing or decreasing over time. These surveys were changed from time to time



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as new information became available. This is demonstrated byExhibits B and C

attached. An example of a special investigation is attached as Exhibit D.

11. These surveys found different levels of contamination at different properties.

Studies conducted by the PS found plant impacts at some properties but not others.

The observed plant injury was very site specific and depended on the species of

vegetation, the degree of soil contamination, and the physical and chemical

characteristics of the soil.

12. Where plant impacts (i.e., adverse effects) were found, the owner of the

particular property was advised of this fact and was provided with a copy of the PS

report.

13. Whether any given study was inaccurate or incomplete is a question which is

specific to individual properties. The investigations conducted by the MOE were

tailored to the allegations of the property owner, with the result that the number and

type of samples collected varied from property to property.

14. The MOE conducted appropriate inspections under the circumstances, and

whenever any member of the public complained about an actual plant impact, the

MOE investigated and determined whether an impact had occurred and whether

Inco was the cause. As a result, all actual impacts significant enough to warrant a

public complaint were investigated. The MOE also did surveys and special

investigations. The surveys were similarly restricted to areas that the MOE believedwere impacted (based on the presence of vegetation injury and the known

northeasterly pattern of the Inco plume). The special investigations were

concentrated on a few specific agricultural properties that had experienced chronic

pollution damage.



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15. If the plaintiff takes the position that the MOE’s studies were not broad enough

geographically and that the MOE should have inspected other properties for whichno complaint had been registered, the plaintiff will have to prove that owners of

those other properties had, in fact, experienced unreported plant or health impacts

or that they had levels of contamination sufficient to cause actual plant or health

impacts.

16. The plaintiff will also have to show that these properties were so situated

geographically, having regard to historic activities of Inco, wind directions and theirusage by the property owners, that it would have been reasonable for the MOE to

conclude that these properties might have levels of contamination sufficient to

cause plant or health impacts such as would warrant further or expanded study.

17. Only after an individualized examination of the property, the types and use of

both the property and its vegetation, and the actual levels of contamination on each

property would the plaintiff be able to argue that the MOE’s failure to conductbroader studies resulted in incomplete studies.

Warnings

18. Whether the MOE should have warned any given member of the Class about

contamination would also depend upon an individual examination of:

i. whether the MOE inspected their property;ii . whether the MOE found an adverse effect;

ii i. whether the MOE failed to warn the Class member about the adverse effect.



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19. It cannot be said that the MOE owed a duty to warn all Class members about the

existence of pollution in the soil or air, regardless of any individualized assessment

of contamination levels on each property or the likelihood of the pollution causing anadverse effect.

20. It is my understanding that the EPA only permits the MOE to act to prevent or

alleviate “adverse effects”. Emissions themselves do not constitute an “adverse

effect” under the EPA. It is only an “adverse effect” when sufficient nickel has

accumulated in the soil to result in the potential to injure the natural environment or

human health.

21. An “adverse effect” requires a finding by the MOE that the use of property has

been impacted or that there is the potential for injury to the natural environment or

human health. I have been advised by MOE lawyers that “adverse effect” does not

include diminution of property value or purely economic considerations.

22. If the MOE is under a duty to warn citizens of any level of pollution, whether or notit is causing an “adverse effect”, the MOE would have to warn virtually every

Ontarian of the many potential contaminants being inhaled and ingested daily, since

virtually everyone in Ontario is subjected to pollution levels of some kind or another.

This is particularly true for those living in urban areas or in communities with past or

present industrial activities.

23. The fact of the matter is that years of MOE study have shown that soil nickellevels in Port Colborne are only capable of having an impact upon sensitive crops

and trees when they reach a particular level. Government studies of ecological

impacts in Port Colborne as early as 1960, and MOE studies in Port Colborne

through the 1970s and 1980s all support a “no observable effect level”, or NOEL, of



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about 2000 ppm nickel in soil and a “lowest observable effect level”, or LOEL, of

about 3000 ppm. I have been informed by Inco’s consultant that current studies

being conducted for the Community Based Risk Assessment (CBRA) support thesame NOEL and LOEL levels. Even if these soil nickel levels were present, an

adverse effect on vegetation would only occur if the sensitive plant species were

being grown on the property. On the human health side, there has been no

confirmation of health impacts from soil nickel exposure.

24. To determine whether the MOE ought to have warned any Class member about

potential plant or health impacts, one must necessarily determine (among a host ofother individual issues) whether the soil contamination level on the property of the

Class member exceeded the relevant thresholds from year to year for the entire

time the Class member resided on the property.

25. Whether in fact the MOE warned each Class member who needed to be warned

of potential plant impacts is, therefore, an individual issue which will require

examining the actual level of contamination and the possibility of plant impacts oneach property.

26. Whether in fact the MOE ought to have warned each Class member who

needed to be warned of potentialhealth impacts is also an individual issue for the

same reason - at a minimum, it will require an examination of the actual level of

contamination and possibility of health impacts on each property. The MOE has

warned all Class members that it currently knows may be exposed to potentiallyharmful soil nickel levels when it released its HHRA report in March 2001, its

revised draft HHRA report in October 2001, and again in March 2002 when it

released its final HHRA report.



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Inspections of the Refinery

27. Whether the MOE’s inspections and abatement activities in relation to the

Refinery itself were adequate will also require a property-by-property and person-

by-person determination of which class members were inadequately protected and

in fact impacted by those inspection and abatement activities. This conclusion

flows from the following facts.

28. As noted above, the studies done by the PS only determined the existence of

contamination attributable to Inco in a particular plume or swath extending to the

north-east of the Refinery. The studies by the PS were only concerned with plant

impacts. Although plant impacts are an “adverse effect”, the observed impacts

were mostly to a few specific properties immediately downwind of the Refinery

upon which grew certain specific sensitive plant species. The impacts were

periodic in nature, and were largely addressed by Inco through financial

compensation to farmers for occasional crop loss, and in some cases through

property purchase.

29. Moreover, as a study done by Inco’s consultant Jacques Whitford Environmental

Ltd. (“JWEL”) in 2001 indicates, 97% of all the nickel emitted by Inco over the

operating lifetime of the refinery was emitted by 1960. In other words, virtually all of

the nickel currently in the soil in Port Colborne had been deposited by 1960. A

copy of the JWEL study is attached as Exhibit E to this affidavit.

30. In his affidavit, Allen Baldwin confirms that the MOE has been aware of this fact

since the early 1980s. Therefore, MOE inspections and abatement of the Refinery

operations were concerned with the remaining 3% of total nickel being emitted to

the air.



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31. This means that had the MOE completely abated Inco’s emissions (i.e., shut

down Inco) in 1970, when the MOE was first created as a ministry, it would havemade no measurable difference in the soil nickel levels currently known to exist in

Port Colborne.

32. For the plaintiff to establish that the ongoing nickel emissions from Inco from

1960 onward (the remaining 3%) were so severe in their impact as to warrant more

stringent inspection and abatement actions by MOE than actually were conducted

from 1970 onward, the plaintiff will have to show that those 3% air emissions werecausing not just occasional plant impacts (which were in fact being investigated by

the MOE and compensated by Inco), but were also causing unreported and

unobserved plant and/or health impacts at each property or upon each person of

each Class from year to year during this lengthy time period.

Issuance of Approvals

33. The plaintiff’s contention with respect to this issue appears to be that the air

approvals issued by the MOE to Inco from the 1970s onward either should not have

been granted, or did not contain sufficiently stringent conditions to prevent the

impacts to plants and health which occurred as a result of air emissions.

34. This raises precisely the same questions as the preceding heading dealing with“Inspections of the Refinery”. At the end of the day, for the plaintiff to prove his

contention that the air approvals should not have been issued (i.e., Inco should have

been closed down completely) or should only have been issued with more stringent

conditions sufficient to prevent “adverse effects”, it will be necessary to examine the



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actual level of air pollution and possibility of plant and health impacts at each

property and upon each Class member from year to year during this lengthy time

period.

Enforcement of the EPA

35. It is unclear which, of a broad range of possible MOE activities, the plaintiff is

referring to when he alleges that the MOE failed to “apply or enforce” the EPA. The

EPA can be applied or enforced in a myriad of ways, most of which are entirely

discretionary on the part of the Minister, Director, or Provincial Officer.

36. For example, the Minister has the discretion to issue “stop orders” in certain

circumstances, effectively closing an industry entirely. The Director has the

discretion to issue approvals (dealt with above) or a wide variety of control orders

or clean up orders, depending upon the particular circumstances. An MOE

Provincial Officer has the discretion to lay charges under the EPA leading to the

prosecution of a company for an environmental offence.

37. I am advised by Jack Coop that, generally speaking, a failure by the MOE to

exercise a discretion is not reviewable by a court for negligence.

38. However, even assuming that the court will review the alleged failure to exercise

an enforcement discretion, the assessment of whether this alleged failure

constitutes negligence on the MOE’s part will again involve consideration of a widevariety of individual issues.

39. For example, whether or not MOE officials were justified in “failing” to exercise

these discretions will require a consideration of what “adverse effects” existed from



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year to year, at each property, and for each person within the proposed Class. All

the discretions require, as a precondition to their being exercised, that the MOE

official has reasonable and probable grounds for believing that an “adverse effect”has occurred or has the potential to occur.

40. Thus, if a given Class member’s property was not suffering plant impacts or a

Class member was not suffering health impacts as a result of Inco’s operations,

MOE officials could not be faulted for failing to take steps to protect that individual.

41. As a result, to assess whether an alleged “failure to apply or enforce” the EPAamounted to negligence with respect to any given resident will require the same

sort of detailed, property-by-property and person-by-person analysis of

contamination and causation as has been undertaken by the MOE with respect to

the Rodney Street community in its March 2002 HHRA and March 2002 Order and

as is currently being conducted by Inco under the CBRA process. The complicating

difference is that the negligence analysis will be required to examine not current

conditions, which are verifiable, but rather historic property and health conditions,for which there may or may not be records or information available.

Conclusion on negligence

42. In summary, regardless of the allegation of negligence considered, each will

require a detailed examination of the individual circumstances of each Class

member. Investigations would need to be specific to each Class member, specificto each Class member’s property, and specific in time.

NEGLIGENT MISSTATEMENT



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g. Exhibit J - Soil Investigation and Human Health Risk Assessment for

the Rodney Street Community, Port Colborne, March 2001, MOE;

h. Exhibit K - Phytotoxicology 2001 Investigation: Resampling of Soil at

Humberstone School and Arsenic in Soil at All Schools - Port Colborne,

MOE;

i. Exhibit L - Phytotoxicology 2001 Investigation: Resampling of Soil at

St. Therese Catholic School, Port Colborne, MOE;

j. Exhibit M - Fact Sheet: Environmental Sampling Program Confirms

Metals Do Not Pose a Health Risk at Port Colborne Schools; January 25,

2001, MOE;

k. Exhibit N - Letter to Rodney Street Community Residents; May 2,

2001, MOE;

l. Exhibit O - Letter to Rodney Street Community Residents; June 6,

2001, MOE; and,

m. Exhibit P - Letter to Port Colborne Residents and Frequently Asked

Questions; July 16, 2001, MOE.



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The alleged distribution

45. The plaintiff states that these reports and letters were distributed by the MOE to

proposed Class members. Alternatively, it is pleaded that alleged

misrepresentations in them were disseminated to proposed Class members by the

media and through public meetings. As a result, it is alleged that “Given the

extremely widespread distribution of these misrepresentations, it is clear that they

were heard or read at some point by all Class Members including Pearson”.

The actual distribution

46. I have reviewed each of these documents, and have made inquiries of the MOE

staff responsible for distributing the documents and speaking to the media about

them. Based upon my review, I am able to make the following detailed

observations about how each report was distributed.

a. Exhibit D - Assessment of Potential Health Risks of Reported Soil Levels of

Nickel, Copper and Cobalt in Port Colborne and Vicinity: May 1997, MOE (the

“1997 HHRA”);

his was a limited government green cover print run (the number of copies printed is

unknown, but it is reasonable to assume that it was in the 50 -100 copies range, as this

was typical), circulated to the MOE District and Regional Offices (perhaps one dozen),

and to the MOE’s Public Information Centre at 135 St. Clair Avenue West, Toronto

(most copies). It was the responsibility of the District/Regional offices to distribute the

report locally, but this typically would have included a few copies to the Regional

Niagara Public Health Department (RNPHD), and Municipal authorities. No hard-

copies were known to be distributed directly to the public. A single copy was placed in



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the Port Colborne library in the summer of January 2000. It was also placed on the

MOE web page Port Colborne hyperlink.

b. Exhibit E - Phytotoxicology Soil Investigation: INCO - Port Colborne (1998),

MOE ;

This was published in 2000. It was distributed in the same manner as

Exhibit D.

c. Exhibit F- Phytotoxicology Soil Investigation: Port Colborne, 1999, MOE;

This was published shortly after Exhibit E. It was distributed in the same

manner as Exhibit D.

d. Exhibit G- Technical Report - Assessment of Potential Health Risks of

Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and

Vicinity: May 1997, MOE, Revised January 2000 (the “2000 HHRA”);

This was published in January 2000. It is a revised version of Exhibit D.

It was distributed in the same manner as Exhibit D.

e. Exhibit H - Soil Contamination in Selected Port Colborne Woodlots: 2000,

MOE;

This was published in February 2000. It was never bulk printed, being a

technical memorandum report. The District and Regional Offices would

have received 1 or 2 copies each. One copy was placed in the public

library. No copies were sent to Public Information Centre. It was placed on

MOE’s web site Port Colborne hyperlink. No hard-copies were distributed

directly to the public.

f. Exhibit I- Phytotoxicology Soil Investigation: School Yards and Beaches Port

Colborne (April 2000), improperly referred to as Soil Investigation of Port

Colborne Schools - 2000, MOE in the Reply;

This was published in December 2000. It was distributed in the same

manner as Exhibit H. Additionally, 1 hard-copy was distributed to each

school and both school boards.



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g. Exhibit J- Soil Investigation and Human Health Risk Assessment for the

Rodney Street Community, Port Colborne, March 2001, MOE (the “March

2001 HHRA”);

This was published in March 2001. It was bulk printed (about 400 copies).

District and Regional Offices received about 30 copies. One copy was

placed in the Port Colborne public library. One copy was delivered to every

household in the Rodney Street community (200 copies). About 100 copies

were sent to the MOE Public Information Centre. It was also placed on

MOE’s web page Port Colborne hyperlink. It was available to the public at

the MOE April 2001 open house meeting.

h. Exhibit K — Phytotoxicology 2001 Investigation: Resampling of Soil at

Humberstone School and Arsenic in Soil at All Schools - Port Colborne,

MOE;

This was published in April 2001. It was distributed in the same manner

as Exhibit I.

i. Exhibit L – Phytotoxicology 2001 Investigation: Resampling of Soil at St.

Therese Catholic School, Port Colborne, MOE;

This was published in April 2001. It was distributed in the same manner as

Exhibit I except that it was only distributed to St. Therese school and the

Catholic school board.

j. Exhibit M — Fact Sheet: Environmental Sampling Program Confirms Metals

Do Not Pose a Health Risk at Port Colborne Schools; January 25, 2001,

MOE;

This was published in January 25, 2001. It was posted on the MOE’s

web page Port Colborne hyperlink and placed in the Port Colborne

public library. RNPHD received a copy. It was also distributed to the

schools.



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k. Exhibit N – Letter to Rodney Street Community Residents; May 2, 2001,

MOE;

This was published on May 2, 2001. One copy was sent to every Rodney

Street community household. RNPHD received a copy. One copy went to

the Port Colborne public library. It was posted on the MOE’s web page Port

Colborne hyperlink.

l. Exhibit O- Letter to Rodney Street Community Residents; June 6, 2001,

MOE;

This was published on June 6, 2001. Same distribution as Exhibit N.

m. Exhibit P - Letter to Port Colborne Residents and Frequently Asked

Questions; July 16, 2001, MOE.

This was published on July 16, 2001. This was the first time any document

was sent by the MOE to all households of Port Colborne (delivered Canada

Post). Again, RNPHD received a copy, as did the Port Colborne public

library. It was posted on the MOE’s web page Port Colborne hyperlink.

47. From the above, it is clear that, although most of these reports were officially

published by the MOE, their distribution was not always the same. A limited

number of copies were made and some were web-posted only. Only one of the

reports, the letter of July 16, 2001, was circulated to all of the households in Port

Colborne. They were certainly not distributed to “all proposed Class members”, as

defined in the Claim. Only one of the reports (the March 2001 HHRA) and the three

letters were circulated to all the households in the Rodney Street community. The

2000 Health Study was not publicly circulated and was only posted on the MOE’s

web page in the summer of 2000. Most of the reports were technical reports and,

as a result, they were not bulk printed and were not distributed to the public, but

rather were made publicly available through the local library (one copy) and the

internet. It is unknown how many proposed Class members were aware of the



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library and internet copies and how many actually read them. Copies of some

reports which were bulk printed and sent to the MOE’s Public Information Centre in

Toronto would have been available upon request by any member of the public.However, there are no records of how many people requested copies from the

Public Information Centre or who the people were who requested copies (i.e., if they

were even Class members).

48. To the best of my recollection, having been personally involved in Port Colborne

soil and vegetation studies at the time of their production and publication, the 1997

and 2000 Health Studies (Exhibits D and G) generated minimal media coverage.As well, all other reports published prior to the spring of 2000 (Exhibits E, F, and H)

received minimal media coverage. Few, if any, interviews were given by the MOE

in respect to them.

49. However, commencing in the spring of 2000, with the establishment of the

Public Liaison Committee (“PLC”) under the CBRA process, and the holding of

regular monthly PLC meetings, the media started to follow environmental issues inPort Colborne much more carefully. The PLC had its own independent expert,

Beak International, reviewing and critiquing the MOE reports. As a result, all of the

MOE reports published subsequent to the summer of 2000 received a much higher

level of media scrutiny, much of it critical of the MOE’s conclusions and findings.

50. This is reflected in the sort of media coverage received by the March 2001

HHRA. This was the first comprehensive human health risk assessment conductedby the MOE after the discovery in the fall of 2000 of higher than expected levels of

total nickel on some properties in the Rodney Street community. As a result of this

discovery, and further as a result of the commencement of this action in March 2001



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and media publicity actively sought by plaintiff’s counsel, the March 2001 HHRA

received considerable media attention in the local media, most of it highly critical.

51. By March 2001, and continuing throughout the months that followed, the

residents of Port Colborne were broadly aware of this legal action and were

exposed to numerous media reports distributed by plaintiff’s counsel expressing

intense criticism of the March 2001 HHRA and its conclusions.

52. Given the highly critical nature of press coverage of the MOE reports since the

summer of 2000, it remains very much a question in my mind the extent to whichresidents of Port Colborne would have accepted the conclusions and findings of the

MOE reports at face value.

The alleged misrepresentations

53. I have reviewed the Amended Amended Statement of Claim and the Reply, and

understand that it is alleged that these reports and letters contained two falsestatements. The first was that “emissions from the Refinery have not posed any

immediate risk, or any risk to human health”. This is allegedly false because, it is

pleaded, “Class members have been exposed to the risk of harm and to actual

harm” as pleaded elsewhere in the Claim and Reply. The second alleged

misrepresentation is that “one of the substances that Class Members were being

exposed to and are still being exposed to is nickel, and not the known human

carcinogen nickel oxide”. This is allegedly false because, it is pleaded, “Classmembers have not been exposed to nickel, but instead have been primarily

exposed to the known human carcinogen nickel oxide”.



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54. Jack Coop advises me that the plaintiff cannot succeed in his claim based on

the alleged misrepresentations. First, the reports in question do not contain the two

statements referred to above. Furthermore, the first statement, even if it werecontained in the reports, is a true statement.

The actual representations

55. The allegation that all of the documents referred to above contain the first

statement, “emissions from the Refinery have not posed any immediate risk, or any

risk to human health”, is not accurate.

56. Some of the documents, notably the 1997 and 2000 Health Studies and other

reports which quoted from them prior to the fall of 2000, concluded with words to the

effect that “no adverse health effects are anticipated to result from exposure to soil

metal contamination in the Port Colborne area”. This conclusion was based on the

best information available at the time, that contamination levels of nickel in the

community did not exceed 9,750 ppm nickel.

57. After the MOE discovered in the fall of 2000 elevated levels of nickel

contamination above 9,750 ppm in the Rodney Street community and, as a result,

began investigations leading up to the March 2002 HHRA, the MOE qualified its

communications to the public, to the effect that the MOE (and the RNPHD) “did not

believe there was any immediate risk to human health while further studies werebeing conducted”.

58. Contrary to what the plaintiff alleges, the MOE’s statements have at all times

been true, based on the information available at the time. Moreover, based on



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information provided by the RNPHD, it appears that there has been an absence of

any overt evidence of health impacts to this community related to current exposure

to environmental soil contaminants. Even the MOE’s latest HHRA (the October2001 draft, finalized March 2002 HHRA) confirms that potential health risks are

confined to a small number of Rodney Street Community properties (25), and that

those risks will only continue to exist until the properties are cleaned up.

59. The allegation that any of these documents contain the second statement, that

“one of the substances that Class Members were being exposed to and are still

being exposed to is nickel, and not the known human carcinogen nickel oxide”, iscompletely false. No document contains such a statement.

60. Moreover, to the extent that the pre-2001 documents refer to nickel, they are

referring to the total amount of nickel that can be identified using standard, widely

used chemical analysis protocols, most commonly ICP (Inductively Coupled

Plasma) spectroscopy. This is an industry standard in which all nickel compounds

that are present in the soil are dissolved by acid into elemental nickel. It yields aconcentration which is commonly and universally called “total nickel”. To the best of

my knowledge, when the analytical protocols are followed, these total nickel

measurements are accurate and there has never been any suggestion to the

contrary by any experts of which the MOE is aware.

61. The reporting on the species of nickel in question changed in 2001 with the

preparation of the March 2001 HHRA. In 2000, MOE staff working on the PortColborne project reviewed historic MOE records which led to the discovery of a

1978 memorandum from Inco in MOE files which summarized the analyses of a few

samples of dust collected from inside the Inco refinery that were found to contain

several species of nickel, including nickel oxide. The MOE also did some limited



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speciation work in the fall of 2000, the results of which were received in January

2001, which suggested that most of the nickel in the soil in the Rodney Street

community was nickel oxide. As a result, from March 2001 on, the MOE reportsstate that the species of nickel in question is nickel oxide, and make clear that

inhalation of nickel oxide can be carcinogenic. There is no scientific evidence that

nickel oxide is carcinogenic through exposure pathways other than inhalation (eg.

ingestion, dermal contact).

62. There are a number of reasons why earlier reports made no mention of nickel

oxide. On the practical side, it is because, at the time of their writing, the MOE hadno reason to believe that most of the total nickel was, in fact, nickel oxide. As well,

the analytical process for determining the precise species of nickel in the soil was

and still is research oriented; it is not an operational analytical protocol. It is time-

consuming, requires the use of special laboratories, and specially trained

scientists, and it is quite costly. As well, there was then and still is no accredited

method for speciating nickel, such that the results from one laboratory cannot

necessarily be reliably duplicated by analysis in another laboratory. Moreover, thespeciation of nickel was unnecessary as the type of nickel species was, and

remains, irrelevant to phytotoxicological impacts and is of limited relevance to

health impacts, for reasons set out below.

63. There is no basis to conclude from reading the earlier reports that the MOE had

ruled out the presence of nickel oxide. The most one can reasonably conclude from

reading them is that the writers did not think that the species of nickel wasparticularly relevant to the report’s findings. The scientists conducting the earlier

studies used standard investigative and analytical techniques and protocols in

place at the time and these did not include the routine nickel speciation of



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environmental samples. I believe that the investigative approach that was used was

appropriate for the objectives of the studies being conducted.

64. As the presence of nickel oxide is entirely irrelevant to plant impacts, the fact

that these soil and plant investigation reports make no mention of nickel oxide is

hardly surprising, and is not in the slightest misleading.

65. Moreover, as the March 2002 HHRA shows, in the establishment of the MOE

soil nickel intervention level of 8,000 ppm, the presence of nickel oxide is of limited

relevance. Nickel oxide is only potentially carcinogenic if inhaled. As set out in theMarch 2001 and March 2002 HHRAs, the primary nickel exposure pathway in Port

Colborne is through ingestion, and not inhalation. Inhalation accounts for 0.1% of

total nickel exposure for Rodney Street community residents, where soil nickel

levels are the highest in all Port Colborne.

The issue of “detrimental reliance”

66. It has been explained to me by the Crown’s lawyer, Jack Coop, that for the

representative plaintiff to prove negligent misrepresentation, he will have to prove

“detrimental reliance” by each proposed Class member. I understand this to mean

that he will have to prove that each proposed Class member:

i. read or otherwise received the alleged two false statements referenced

above,

ii. interpreted what they read or heard to mean that the MOE had expressedthe alleged two false statements referenced above, and,

iii. as a result of receiving these two false statements, each proposed Class

member relied upon those statements as true with the result that they have



25

suffered damages that they would not have suffered had the MOE told the

“truth”.

67. For the reasons set out above, I doubt that most proposed Class members ever

read or even heard about the conclusions of most of the reports published by the

MOE up to 2000. After the establishment of the PLC in the spring of 2000, most

residents would have been aware of the issue of elevated soil metal levels, but it is

unlikely that they would have read the MOE reports and understood the specific

conclusions in them.

68. I also doubt that any Class members who did read or did hear about the reports

concluded that they contained the second statement referred to above, since none

of the reports contain that statement. Moreover, since at least March 2001, the

MOE has publicly taken the position that the nickel in the soil is mostly nickel oxide.

69. Equally, none of the reports contain the first statement as alleged. To the extent

that they contain any conclusions about potential impacts to health, thoseconclusions were and remain true. Thus, it is difficult to imagine how any Class

member who heard of them would have acted any differently had they been told the

“truth”.

70. If it is the plaintiff’s contention that the MOE should have warned about the

presence of a “known human carcinogen nickel oxide” as early as 1997, any

responsible warning would have gone no further than what is reported in the MOE’s2001 and 2002 HHRA’s (i.e., an explanation that nickel oxide is present but of

limited potential impact given that the primary pathway for exposure is ingestion

and not inhalation). It would have been alarmist and negligent for the MOE to make



26

the sort of unqualified and misleading statements as are contained in the plaintiff’s

pleadings.

71. Despite the release of the March 2001 HHRA and despite repeatedly

misleading and alarmist news releases by plaintiff’s counsel concerning the health

impacts of nickel oxide on the people of Port Colborne, I have no personal

knowledge of, nor have I been informed of, any evidence of a mass exodus of

residents from Port Colborne or mass change in behaviour in residents.

72. It is true that the MOE and MOH have issued precautions to the people of PortColborne to reduce their exposure to nickel contamination in the soil. However,

those precautions are just common sense and would have been done by most

residents anyway.

73. Based on all the above, it is highly doubtful in my view that members of the

proposed Class (whether inside or outside the Rodney Street community) would

have behaved differently had the 1997 study mentioned the possible presence ofnickel oxide in a responsible manner, that is, in the same way as the MOE 2001

and 2002 HHRA does.

74. Of course, without further inquiry, one cannot be sure whether any particular

member of the proposed Class actually read or heard about each of the above

reports and letters, how they responded to what they read or heard, and whether

they would have responded differently had different information been included inthose reports. The only way to ascertain these facts would be to conduct an

individualized inquiry into the circumstances of each person.

PREFERRED ALTERNATIVE



27

75. I am advised by the Crown’s legal counsel, Jack Coop, that under the Class

Proceedings Act a plaintiff must establish at the certification hearing that the class

proceeding would be the preferable procedure for the resolution of the common

issues.

76. I have reviewed the affidavit of Richard Lindgren, sworn January 15, 2002. I

disagree with his assertion in paragraph 12 that this case would “appear to be

particularly suited to being advanced as a class proceeding”.

77. To the contrary, based upon my analysis set out earlier in this affidavit, a class

action would require an extremely lengthy, individualized, property-by-property and

person-by-person inquiry into historic facts for the purposes of determining liability,

which will be impractical or impossible in light of the finite historic soil contamination

records which exist. Such an inquiry serves no useful purpose in light of the solution

offered by the CBRA process.

78. A class action will also require an equally lengthy, individualized, property-by-

property and person-by-person inquiry into current facts for a determination of future

“damages” which might be sustained by each Class member. Again, such an

approach would merely duplicate the CBRA process.

79. I therefore believe that a class action will inevitably force the parties and the

court to devote a significant amount of their resources to property and person-specific investigations. This does not offer a practical alternative process to the

CBRA and Order processes which have been set out in the affidavits of Kal Haniff

and Jim Smith, sworn March 28, 2002.



28

80. Using Mr. Lindgren’s paragraph 12 as a template, I would observe the following:

a. There are a large number of potential claimants (20,000 or more).

b. Their claims do not arise out of the same or similar facts, but rather out of very

different facts. Whether any given resident will require remediation at their

property, the type of remediation required, and the type and extent of any

damages suffered will require a detailed property by property and person by

person assessment. This can more effectively be done under the CBRA

process.

c. For reasons more completely detailed in my affidavit, above, the very complex

issues of liability raised by the action concerning negligence and negligent

misstatement by the Crown will necessarily require a very individualized

assessment of facts in relation to each alleged proposed Class member. The

complex issues of liability are not common to all potential plaintiffs. Instead, they

are highly individualized.

d. If the vast majority of Class members have damage claims that are modest, as

alleged by Mr. Lindgren, those claims could be better addressed under a

voluntary and cost-free (to the class members) CBRA process, rather than

through lengthy discovery processes in the litigation setting.

e. Whatever damage claims any proposed Class members have, these could beaddressed through the CBRA process.

f. Mr. Coop advises me that Mr. Lindgren is correct in his statements that actions

of this nature frequently require the expenditure of large amounts of time and



29

money on expert witness fees and other disbursements. Furthermore, very

large amounts of legal time are normally required. However, in my view, what

Mr. Lindgren ignores is that proposed Class members can already participatefully in the CBRA process on a no-cost basis. The Public Liaison Committee,

which represents the public in the CBRA process, has its own independent

expert fully paid for by Inco. No lawyers are required for the CBRA process, but

neither are they excluded from representing the interests of any particular

property owners who feel their interests are not being fully represented by the

PLC and its experts.

g. Given the complexity of the environmental issues requiring a determination, this

situation is particularly well-suited to the multi-level, consultative CBRA process

involving participation of experts and peer reviewers. The CBRA process

allows all stakeholders to participate in creating a consensual solution for the

community. The litigation process does not support this initiative, but rather

isolates and makes adversarial the parties and their experts.

h. As noted by Mr. Lindgren in his affidavit in paragraph 12(i), there are

potentially hundreds, if not thousands of individual claims. Should these come

before the Court as individual actions, the burden on the court system would be

immense. Where we part company with Mr. Lindgren is that we do not share his

belief that a class action will avoid the necessity of each individual claim being

heard, even to establish liability.

i. Contrary to Mr. Lindgren’s suggestion in paragraph 12 (j), substantial

documentary production will be required from each member of the proposed

Class for this matter to proceed as a class action.



30

j. I strongly disagree with Mr. Lindgren’s suggestion in paragraphs 12 (k)

and (l) of his affidavit, that this court action has somehow prompted increased

study and analysis by any of the defendants. The MOE and RNPHD hadalready undertaken human health risk assessments in 1997 and 2000. Inco had

already commenced the CBRA process with full participation of the City, the

RHPHD and the MOE long before this action was launched. In fact, all of the

environmental studies conducted to date and all of the environmental initiatives

currently underway in Port Colborne were started before the class action was

launched in March 2001. It was as a result of the MOE’s normal operating and

investigative procedures, on which the CBRA is based, not any legalproceeding, that unexpectedly high levels of soil contamination were discovered

in 2000 in the Rodney Street community by the MOE. It was as a result of this

discovery, and not any legal proceeding, that the MOE initiated and completed

a six month study leading up to the publication of the March 2001 HHRA, and

proposed the March 2001 Director’s Order which culminated in the final March

2002 report and Order. This legal action has been largely responsive to, and

parasitic upon, the extensive work already done by public authorities tosafeguard the interests of this community.

k. This action, and the conduct of plaintiff’s counsel promoting it, have done

nothing to advance the environmental well-being or interests of the residents of

Port Colborne. Instead, there has emanated from the plaintiff, through his

counsel, a series of misleading and alarmist press releases, not founded on

scientific fact or medical evidence, which have needlessly alarmed thecommunity of Port Colborne and have probably had a more profound negative

impact on property values in the City than the presence of soil contamination

could have had. The plaintiff, through his legal counsel, has variously threatened

to close private and public schools without scientific justification, has warned



31

residents that they will suffer severe health ailments as a result of soil nickel

levels without scientific basis, has opposed Inco’s voluntary remediation efforts,

and has repeatedly misapplied the MOE’s guidelines to suggest that anexceedence of Table A generic health-based value of 310 ppm nickel in soil

means there has been damage to the community despite express MOE advice

to the contrary. Indeed, the latest affidavit materials filed by the plaintiff on this

motion, suggesting that there is some basis for concluding that proposed Class

members have been damaged by exceedences of the Table F (background-

based) value of 43 ppm nickel in soil or the Table A (effects-based) value of 200

ppm nickel in soil, the MOE’s clean up guidelines, are a case in point. Underthe guidelines, these generic values point to a need for further site-specific

investigation. One cannot assume that their exceedence denotes an adverse

effect.

l. This litigation is not required to modify the behaviour of any defendant. From

the beginning, the regulators have been actively engaged in assessing and

safeguarding the health interests of the public and the natural environment in thevicinity of Port Colborne. Inco has voluntarily advanced the CBRA process,

which will address not only health and ecological effects but also property value

impacts. Inco has made a public commitment to complete that process. The

MOE has ordered Inco to take the necessary steps to immediately alleviate

currently known potential health effects to the community

81. I swear this affidavit in response to the certification motion of the plaintiff dated

January 17, 2002, and for no improper purpose.

SWORN before me at the City of )



32

Toronto, in the Province of Ontario, )this 28

thday of March, 2002 )

_______________________

DAVE LEONARD MCLAUGHLIN ________________________________ A Commissioner, etc.

affidavit mclaughlin

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