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Tar Ponds court action shut down, deemed too costly

Canadian Press THE CANADIAN PRESS

HALIFAX – The law firm that represents Cape Breton residents who launched a class-action lawsuit claiming the Sydney tar ponds exposed them to contaminants has concluded the litigation should stop after 11 years of legal wrangling.

The Halifax-based law firm Wagners issued a statement late Tuesday saying the court action, which started in 2004, has grown too complex and costly after several major setbacks.

The plaintiffs were granted certification as a class in May 2012, but the federal and Nova Scotia governments persuaded the Nova Scotia Court of Appeal to decertify the lawsuit in December 2013.

The Appeal Court decision came after lawyers for the two governments argued that a provincial Supreme Court judge erred in certifying the case because there are too many differences in the individual cases for the matter to be heard as a class action.

As a result, court costs amounting to more than $740,000 were awarded to the two levels of government, to be paid by the four representative plaintiffs who launched the case.

The law firm and a partner firm agreed to cover the costs, but they have since failed in their efforts to have the case reconsidered.

In January, the Supreme Court of Canada denied lawyer Ray Wagner's request for an appeal, effectively ending the class action.

The law firm recently held a town hall meeting with residents, during which Wagner said the only other legal avenue would be to file individual claims, which he said would be costly.

``Unfortunately the number of people who responded with interest in proceeding individually did not meet minimum thresholds for such costly and complex litigation,'' Wagner said in the statement.

``Continuing with litigation, which would have to start from scratch, appeared to not be an option at this time due to the complexity, significant expenses required and the risk of costs. Effectively no remedy is available to the residents of modest means to bring this injustice to court.''

In an interview with AdvocateDaily.comBridgePoint Indemnity Company Chairman and CEO John Rossos says it’s unfortunate that the class action won’t be moving forward.

“It wasn’t accepted as a class action when, in my view, it should have been. I think the trial judge had it right – this is exactly the type of case that the class action legislation was designed for by providing a mechanism for people to seek collective redress when faced with a common source of harm," he tells the online legal news service. "As a result, there is now a whole community of people who are adversely affected by that. That’s too bad.”

BridgePoint provided a $500,000 indemnity to the Cape Breton residents who had launched the class action, of which $240,000 of the total $740,000 owing to the two levels of government will be paid by class counsel, Wagners and Siskinds. 

Rossos notes that class actions were designed to provide redress in exactly these types of situations.

“The Court of Appeal decision is fundamentally flawed in my opinion and I think it’s going to have a negative impact on environmental class actions going forward,” he says. “If you can’t certify Sydney Tar Ponds, what can you certify? If you can’t try this one as a class action, given the time and expense involved, no one is going to take these cases on.

“It’s now very difficult to certify environmental actions and the net effect of that is a whole community of people who don’t have legal redress. Access to justice certainly wasn’t advanced with this decision”.

The original lawsuit was filed by residents Neila MacQueen, Joe Petitpas, Ann Ross and Iris Crawford, who were seeking compensation and a medical monitoring fund for contamination resulting from the operation of the steel plant between 1967 and 2000.

 

- With files from AdvocateDaily.com

© 2015 The Canadian Press

 

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