Canadian citizens awarded $36-million in suit against Inco

Published by MAC on 2010-07-09
Source: Canadian Press, Welland Tribune

Port Colborne, Ont., residents awarded $36-million in suit against Inco

The residents, in a class action, claimed elevated levels of nickel negatively affected the values of their properties

By Peter Cameron

The Canadian Press

6 July 2010

Residents of Port Colborne, Ont., whose properties were contaminated by emissions from a nickel refinery, have won a lawsuit against Inco.

An Ontario Superior Court justice released a decision Tuesday in Welland, Ont., awarding about 7,000 households a total of $36-million.

The residents, in a class action, claimed the elevated levels of nickel negatively affected the values of their properties.

The claim was for the decrease, or lack of increase, in the values of properties from September 2000 to date.

Inco acknowledged that its Port Colborne refinery, which ceased nickel emissions in 1984, was the source of the vast majority of the elevated levels of nickel found in the area.

The company argued the limitation period to make a claim had expired, but Justice J.R. Henderson ruled that the extent of contamination wasn't generally known until early 2000.

"Extremely pleased and almost in shock," is how lawyer Eric Gillespie, who represented the homeowners, described his clients following the decision.

Mr. Gillespie said households in the area closest to the refinery were each awarded $23,000.

"That's a very significant award for any family to receive in a claim of this nature," he said.

Judge Henderson did not award any punitive damages in the case.

"Inco's conduct in this case does not justify an award of punitive damages," he wrote.

"Clearly, Inco's conduct was wrong in law and has caused widespread damage that has affected several thousand people," he added. "However, Inco's conduct has not been so malicious or oppressive that it offends the court's sense of decency."

The Inco refinery started operations in Port Colborne, a city of about 18,000 located on the north shore of Lake Erie, in 1918.

Its primary business for many years was nickel refining, but that part of Inco's operations ceased in 1984.

Since that time, Inco has continued to operate in Port Colborne, but no nickel refining has been done.

Judge Henderson's decision noted that throughout its history, Inco has generally complied with environmental regulations.

Inco reduced emissions of nickel from its refinery over time, and eventually ceased nickel emissions altogether in 1984.

After the September 2000 disclosure of nickel contamination, Inco participated in, and paid for, studies and the remediation of 24 properties.

Mr. Gillespie noted that Inco can appeal the decision.

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Port Colborne residents win $32M Inco suit

By Wayne Campbell

Welland Tribune

7 July 2010

PORT COLBORNE - Port Colborne residents have won $32 million in a class action lawsuit against Inco based on the loss of property values because of nickel emission contamination.

Ontario Superior Court Justice Joseph Henderson released his decision Tuesday following an October 2009 trial.

Residents in the class action said their property values decreased once it became known in 2000 Inco - now known as Vale - had contaminated property while it operated its Port Colborne refinery. The refinery section of the plant closed in 1984.

In his decision, Henderson divided the award among about 6,500 households, placing them in three groups. About 200 Rodney St. households would receive $23,000 each for a total of $9 million. They live nearest to the former refinery.

Households on the east side of Port Colborne would get $9,000 for a total of $15 million and the west side $2,500 per household for $12 million.

Lawyer Eric Gillespie, who represented residents, said the decision was "a very positive one to come out of a lengthy process."

"At the same time, it is very good news for class members," he said.

The process has been a long one.

It began in March 2000 with the announcement of the contamination. A Court of Appeal case was heard in 2005 and the trial on which the decision was based was in 2009.

Meanwhile, Inco and the city became involved in a long process to assess the levels of contamination.

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Badawey: Inco 'not an anomaly'

By Maryanne Firth

Welland Tribune

7 July 2010

PORT COLBORNE - It's time to begin rebuilding the Rodney St. community.

After battling against Inco in a class-action law suit for compensation, Port Colborne residents learned Monday they've won $36 million for loss of property values.

The process began more than a decade ago when nickel emission contamination was discovered in the soil of Port Colborne properties from an Inco refinery.

Ontario Superior Court Justice Joseph Henderson released his 96-page decision Monday - the results of an October 2009 trial - dividing the reward among roughly 7,000 Port Colborne households.

About 200 Rodney St. area property owners would receive $23,000 per household - a total of $9 million - as they live nearest to the former refinery. Households on the east side of Port Colborne would receive $9,000, totaling $15 million, and the west side $2,500 per household, a total of $12 million.

Coun. Frank DiBartolomeo, who oversees Ward 2 including the Rodney St. area, said news of the decision is positive, but he's "cognizant of the fact that Inco has an opportunity to file an appeal."

Vale, as the company is now known, says it will file an appeal of the decision to the Ontario Court of Appeal.

DiBartolomeo, who's held the Ward 2 seat since before the process began, says it's been a long 10 years since the issue was brought to the forefront. He said the Rodney St. area has "been very depressed, real estate wise and otherwise."

"Residents have endured quite a bit. If and when they receive financial compensation, that's a start."

Though compensation will help, the community will still have to work to "rebuild one step at a time," which isn't going to happen overnight, he said.

"It's a shame. At one time it was a very thriving community. It's sad to see the shape it's in right now, but we will rebuild."

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Port Colborne residents: $36M not enough

By Allan Benner

Welland Tribune

8 July 2010

PORT COLBORNE - While some residents consider the success of a class action lawsuit against Inco a win for the little guy versus a big corporation, others are concerned the $36-million awarded to residents falls short of making amends.

"I'm pleased for the residents that have persevered and followed through on it," said Nancy Horpenuk. "I commend them for their diligence, I really do."

Horpenuk said she grew up on Lorraine Rd., and her parents still live there - directly east of the nickel plant. Although she hasn't been an active participant in efforts to get compensation for historic nickel contamination of land, she said she applauds the efforts of those who have.

"When you're dealing with big business and corporations I think it's really hard," Horpenuk said.

Peter Grondin has lived on Davis St., right across the road from the plant, for the past 50 years.

He said he's expecting $23,000 through the settlement, but even that isn't enough considering everything he's put up with during his time there.

And, as he suspected, the company will appeal the decision.

Grondin said the declining value of his property is having an impact on him. He said he his bank recently turned down a home improvement loan citing the contaminated soil in the area as the reason - even though Inco - today called Vale, for its Brazilian owner - replaced soil in the yards around the neighbourhood a few years ago.

"I can't even get a certificate from the Ministry of the Environment stating that my property is clean. That I don't understand," Grondin said.

Gisele Bonneau, who lives near the corner of Rodney and Davis Sts., said the $23,000 each home in her neighbourhood is expecting is not enough compensation "for many reasons." She said it doesn't cover the cost of damages done to her home when nickel-contaminated soil was replaced there.

"Our homes are damaged. Physically damaged," she said, adding to spend money on repairs makes little sense, when it will have little impact on the resale value of her home.

The court decision only dealt with lost property values, not health impacts. But Bonneau said she has had long-standing health problems all her life and she suspects it could have something to do with the contamination.

Bonneau said she's also upset Vale has opportunity to appeal the decision within the next 30 days.

"That is ridiculous. The judge's decision isn't enough?"

She said an appeal will just further delay the resolution of an issue that has been hanging over the city for more than a decade.

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Background Box - Vale will be appealing a $36-million judgment for Port Colborne residents pertaining to historic Inco nickel contamination and its effect on the city's property values.

In a phone interview Wednesday, Cory McPhee, vice-president of corporate affairs for Vale (formerly Inco), said company staff and lawyers spent Tuesday night reading through the 96-page verdict.

"There are grounds for an appeal and we will be appealing," McPhee said.
He was unsure of the grounds or time line for the appeal.

In an interview Tuesday, plaintiff lawyer Eric Gillespie said Vale has 30 days to appeal the decision handed down by Ontario Superior Court Judge Joseph Henderson.
Henderson's decision handed down Tuesday followed an October 2009 trial.

Residents in the class action said their property values decreased once it became known in 2000 that Inco had contaminated property while it operated its Port Colborne refinery. The refinery section of the plant closed in 1984.

In his decision, Henderson divided the award among about 6,500 households, placing them in three groups.

About 200 Rodney St. households would receive $23,000 each for a total of $9 million. They live nearest to the former refinery.

Households on the east side of Port Colborne would get $9,000 for a total of $15 million and the west side $2,500 per household for $12 million.

I'm not going to see a dime. I won't get nothing because we're renters. Where's the justice in that?

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Canada's Largest Environmental Lawsuit a Victory

Ontario court rules Vale must pay $36 M to Port Colborne residents

by Tracy Glynn

The Dominion

12 July 2010

FREDERICTON - Almost 10 years after Wilfred Pearson, a retired truck driver from Port Colborne, Ontario, signed his name as the lead plaintiff to the largest environmental class action lawsuit filed in Canadian history, the verdict is in-and it is in his favour.

Port Colborne residents claim that their property values were diminished by the levels of nickel emitted from Inco's refinery. On July 6, 2010, Ontario Supreme Court Justice J.R. Henderson sided with the residents and awarded more than 7,000 households in Port Colborne a total of $36 million. Households in the Rodney Street area, in the shadow of the nickel refinery, were each awarded $23,000 while those living on the east side of Port Colborne were each awarded $9,000, and the west side, $2,500. Vale (formerly Inco) has said the company will appeal.

"It has been a very long 10 years. People said to me the day we launched this lawsuit that you can't fight large corporations and expect to win. They were wrong. I hope this court victory shows people can stand up and fight for justice," said Diana Wiggins, who originally called the Canadian Environmental Law Association, setting the lawsuit in motion.

The lawsuit's initial defendants included Inco, the Ontario Ministry of Health, the Ontario Ministry of Environment, the Niagara Regional Health Department, the Niagara District School Board, the Niagara Catholic School Board and the City of Port Colborne.

In February 2001, Pearson was the lead plaintiff on the lawsuit of 8,000 plaintiffs who originally sought $750 million in damages to health, property value and quality of life. Although that suit failed in 2002 to be certified, it was subsequently modified to focus on devaluation of property. The suit was certified on November 18, 2005. The plaintiffs settled out of court with all defendants except Inco. In late June 2006, Inco's efforts to stop the class-action lawsuit were dismissed by the Supreme Court of Canada. The lawsuit that resulted in the July 6 verdict went to trial in October 2009.

Eric Gillespie, the lawyer representing the Port Colborne residents, said, "Our clients are very pleased with the decision. It's a very significant award and it's been made to the entire community."

Inco opened the Port Colborne nickel refinery in 1918, cashing in on the post-war demand for nickel. The refinery was a major employer in Port Colborne for decades after; the workforce peaked at about 2000 in the 1950s. The nickel refinery stopped refining nickel in 1984. Today, fewer than 200 people work at the plant that refines cobalt and other precious metals.

Wiggins and Ellen Smith, two Port Colborne mothers, founded Neighbours Helping Neighbours in 2001 to tackle the nickel contamination problem in their city. Smith became the lead plaintiff in the lawsuit when Pearson's health problems became too severe for him to continue.

Inco became one of the main landowners in the area in what many believed was an apparent attempt to buy contamination concerns, beginning in the 1960s. Some properties along Rodney Street, deemed to be the most contaminated, were remediated by Inco.

Residents feel that the Inco refinery is responsible for the heavy metal contamination of their soils, and Inco has admitted to contamination by nickel, copper, cobalt and arsenic. An estimated 20,000 tonnes of nickel oxide, a carcinogen, was spread over the Port Colborne area during the refinery's operation. In some areas of Port Colborne, nickel exceeds 20,000 parts per million (ppm). Ontario's Ministry of the Environment considers the safe upper threshold for nickel in residential soils to be 200 ppm.

Wiggins became aware of the extent of the contamination after talking to a friend who had been hired by Inco to pump out contaminated soil. Contaminants were said to be escaping into the ground water and wells. For decades, Inco had been dumping electrolyte nickel or "green liquor" into an aquifer below the Rodney Street neighbourhood. Over time, a fracture developed in the bedrock. By 2000, this "green liquor" was seeping into Lake Erie and surrounding areas.

Wiggins introduced herself to Smith after reading a story about her fears of property contamination in the local Tribune. In June 2000, Smith and her partner Craig Edwards requested that the Ministry of Environment test the soil on their Rodney Street area property. Smith and Edwards were astounded by the results. Their property contained between 14,000 and 16,000 ppm nickel, and over 600 ppm lead.

IMAGE Global Day of Action Against Inco, October 2003, on the island of Sulawesi, Indonesia. The people marching were being squeezed off their land by PT Inco, a subsidiary of Vale. The company, enjoying superior land purchasing power, was expanding its operations. Photo: Yayasan Tanah Merdeka (Free Earth Foundation)

Smith, who is now the mother of two teenagers, wrote in 2003, "I have enjoyed watching my children play with their trucks and cars, making roads and bridges in the dirt. I thought that some day they might wish to become engineers. We have had numerous rounds of baseball, catch or Frisbee in the backyard. We spent warm summer days at the ballpark. Now the children's play areas are restricted. The ballpark is chained shut. They can't explore their world without barriers. They can't even enjoy the surroundings of their own home. They can no longer be the children they were."

Smith and Edwards paid off their home and property only to later find out their soil was contaminated. Smith said, "How can we sell this house and property to another starting family when we know what lurks beneath the ground and in the walls? As a mother watching her young children grow, I am sickened and at a loss for words to explain the feeling of not knowing what the future holds for my children. As a Port Colborne resident, I feel personally violated by those we trusted to protect our environment and our health and safety."

Wiggins recalls the moment in the year of 2000 that sprang her into action. "My son would come home from school quite often complaining of severe sinus headaches and stomach aches. He also had rashes on his body. At the beginning of these ailments, I did not suspect there was an environmental problem. I had my son tested for nickel in his urine. But when I went to my son's pediatrician for the test results, he was elusive. The doctor wouldn't look me in the eye, stood with his back to me and stated that he 'wasn't allowed to discuss this issue' with me."

Wiggins discovered that Inco had purchased a property and sold it to the Niagara District School Board.

"The original landowners farmed the [property]. It had been said that the lady of this house suffered from a severe skin rash, so severe that it was difficult for her to work on the land. A few years after Inco purchased the land from the couple, the Niagara District School Board acquired it and built Humberstone School," said Wiggins.

Wiggins spoke with various specialists in the environmental and health fields. "As time went on and more information started surfacing, it literally was making me feel sick to my stomach every time I put my son on the bus," said Wiggins.

Wiggins and Smith reluctantly joined the Community-Based Risk Assessment (CBRA) process-a process that was supposed to determine the risks of the refinery contamination and a process to clean up the contamination.

"Getting quite discouraged, I started to attend their meetings in September 2000. As time went by, I became even more discouraged as it was becoming increasingly clear that nothing was going to be done to ensure the safety of the people living with such high levels of contamination," said Wiggins. "I doubted this company-sponsored process. Here we have a known contamination in our city. However, it is still just sitting here for children to play in, people to grow crops in, for us to breathe."

The suppression of a phytotoxicity report from her son's school and soil test results in the Rodney Street area worried Wiggins. She also learned that the Ministry of Environment's office had been holding strategic communication meetings on how to deal with Port Colborne residents and their concerns about environmental contamination.

Smith remembers uncovering documents that demonstrated the government withheld information about the refinery's environmental problems. Reading each page made Smith push harder for the truth and for justice.

Nasal cavity cancers, linked to exposure to nickel oxide, have claimed the lives of several refinery workers, some before they received their first pension cheque. Surviving family members blame the refinery for the loss of their loved ones.

In November 2000, the community was shocked to hear government scientist Al Kuja say, "There's areas where every single household has someone sick, every single family, some member has something-cancers, rashes, leukemia... Personally I think that something is going on."

In early 2001, soil at Humberstone School tested at levels of 1,200 ppm of nickel.

"I spoke with the school representatives, trying to get them to do something to protect the children. At one point, I had a conversation with a Niagara School Board staff member in charge of the safety and wellness of the children. He said, 'If it were me, I would just move my child to another school.' I responded, 'That would be fine for my son... but what about the other 200 children in the school?' It appeared to me that authorities were not explaining to parents what the contamination statistics meant, so how could parents make an informed decision concerning the health risks for their children? There were children with quite severe skin rashes and ongoing headaches and stomach aches."

Wiggins pulled her son from Humberstone School in February 2001 to demand measures be taken to protect the children in the school. The school obliged and a week later her son was back at school with new rules: students were not allowed to play on grass, they had to wash their hands when they came in from the outside, and windows in the school were to to be kept shut when farmers were working on the land. She enrolled her son in a different school in the fall of 2002. The Humberstone School was shut down in 2003 and demolished in 2008.

The women, Pearson and others from Port Colborne have demonstrated outside Inco's shareholders' meetings in Toronto, holding signs such as, "Inco Nickel Found In My Kitchen, Attic And Left Lung." One of the more memorable shareholders' meetings was in 2003 when Port Colborne residents handed out what they called "dirt bags"-bags of their contaminated soil-to Inco shareholders.

Both women monitor Vale's problems at home and abroad. In 2003, Wiggins motivated others to organize a global day of action against Inco. In October of that year, people around the world demonstrated and held public presentations, film screenings and vigils in Newfoundland, Ontario, Guatemala, Indonesia and Kanaky-New Caledonia in the first global day of action against a Canadian mining company.

Vale, now under Brazilian ownership, has provoked the creation of a network determined to coordinate actions among communities affected by Vale in Brazil and worldwide. Striking Vale workers in Canada recently visited Vale-affected communities in Brazil and Indonesia.

Tracy Glynn sits on the Board of the Dominion/Media Co-op and is an organizer of the New Brunswick Media Co-op. She wrote a masters thesis on the the environmental and health problems of Inco's smelter and mines in Indonesia. She sits on the Board of Mining Watch Canada and is co-editor of the website - http://www.MinesAndCommunities.org.