SYDNEY — The lawyer behind a class-action lawsuit against the provincial and federal governments related to contamination spewed into the environment by a century of steelmaking in Sydney is not giving up the fight.
Contractors work on part of the structure that pumps water from the Wash Brook and diverts it from the south tar pond to a channel that takes it out to Sydney harbour in this December 2009 file photo. Steve Wadden - Cape Breton Post
While in December the Nova Scotia Court of Appeal threw out the certification of the class-action lawsuit, Ray Wagner said he is working on two measures that could keep the action before the courts.
They have applied for an extension of the 60-day period to file leave to appeal to the Supreme Court of Canada.
"We haven't heard back yet whether they're going to grant that or not, although it's not being opposed," Wagner said.
They are also asking the Nova Scotia Court of Appeal for a reconsideration of its decision, in light of a subsequent Supreme Court of Canada decision that dealt with the question of preferred procedure.
"In that particular case, it bascially said that there shouldn't be a too rigid approach ... in the context of the three pillars of class proceedings — access to justice, judicial economy and behaviour modification — expecially in the context of access to justice, if the only other alternative to resolving a class action on a common issue is individual actions, then that becomes too costly to be able to advance," Wagner said.
The court found that, in that instance, it woud lead to certifying the case. Another recent Supreme Court of Canada decision dealt with common issues, Wagner said, noting that was one of the concerns raised by the Court of Appeal. The country's highest court leaned heavily toward access to justice and allowing claims to proceed to answer a common issue in a class proceeding, he said.
The court found that, even if issues are different, if they are not in conflict, the action should proceed.
As far as the extension for leave to appeal to the Supreme Court of Canda goes, Wagner said he expects that should be granted.
About 400 people to date have signed on to the lawsuit.
The appeals court overturned the certification by a Nova Scotia Supreme Court justice in 2011, ruling that there are too few common issues uniting the plaintiffs.
"There are too many differences among the class members to make the certified common issues common to all of the class members," the appeals court panel wrote. "There is no reason to believe any contaminants emitted by the appellants were distributed evenly across the geographical area, or during the time period specified in the action."
Wagner has said he believes it is a case of national significance, important for people across the country as far as environmental class actions are concerned.
He said he was disappointed for the people of Sydney, noting those involved with the class action can't afford to bring individual actions and assume the costs involved with them. He said there has been a great deal of time and effort invested in the lawsuit since it was first filed in 2004.
The plaintiffs are seeking compensation and a medical monitoring fund for contamination resulting from the operation of the steel plant between 1967 and 2000. There is no demand for personal injury compensation.
None of the plaintiffs's claims have yet been proven in court.
It was only the second contested certification approved under Nova Scotia's Class Proceedings Act, and is the first environmental class action certified in the province.