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Court File No. 12023/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WILFRED ROBERT PEARSONPlaintiff

- 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 andTHE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD

Defendants

Proceeding under the Class Proceedings Act, 1992

FACTUM OF THE CORPORATION OF

THE CITY OF PORT COLBORNE(Certification Motion June 3-7, 2002)

PART I NATURE OF THE MOTION

1. The Plaintiff is seeking to certify the within proceedings as a class action pursuant to the

Class Proceedings Act, 1992.

2. The Corporation of The City of Port Colborne (hereinafter the City) opposes the

Plaintiffs motion, in conjunction with all of the other Defendants in this action (with the

exception perhaps of The District School Board of Niagara and The Niagara Catholic District

School Board, who have recently entered into a memorandum of understanding with the

Plaintiff).

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3. From the Citys perspective, assuming the Plaintiff even has a cause of action as against

it, which is disputed, the matters at issue in this case are wholly unsuitable for adjudication

through the procedural mechanisms afforded by the Class Proceedings Act, 1992, S.O. 1992, c. 6

(hereinafter the CPA).

4. With approximately 20,000 proposed class members, adjudication of their claims will by

necessity be as individualized as the individuals themselves. The City submits that this action

will be dominated from start to finish by a myriad of individual issues, including but not limited

to property-by-property soil sampling and analysis, assessment of the individual risk factors for

various alleged illnesses, assessment of residential property value impacts, adjudication of

alleged subsidence to homes attributed by the Plaintiff to purge wells operated by Inco Limited

(hereinafter Inco), assessment of crop impacts, exploring the knowledge of individual class

members at any given time with respect to contamination issues, and/or their reliance on

(mis)representations allegedly made by the City and/or other Defendants.

5. In stark contrast to the bleak prospect of litigating literally thousands of significant

individual issues, the Community Based Risk Assessment (hereinafter the CBRA) is a

comprehensive, consultative process supported by the community at large and is ideally suited to

address environmental contamination concerns in the City of Port Colborne and the legacy of

heavy industry in the community. With the support of all stakeholders, including the Ministry of

Environment (hereinafter the MOE) and its regulatory regime, the CBRA will ultimately result

in remediation to individual properties as required and ensure that the City as a whole will be

safe for development and use.

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PART II THE FACTS

The History of the Inco Refinery and Emissions

6. The longstanding history of the Inco refinery in Port Colborne has been set out in detail

in the factum delivered by Inco at paragraphs 19 through 25. The City does not propose to

duplicate that history herein and adopts those submissions for the purposes of this motion.

7. The City notes in particular the submission in Incos factum at paragraph 24 that 97% of

total nickel emissions deposited in the area surrounding the refinery occurred prior to 1960 and

that emissions since 1984 have been negligible and have not measurably impacted upon the

chemical composition of surrounding lands.

Reference: Incos Factum, paragraph 21 (See Incos footnote no. 8 on p. 10).

The Citys Awareness of Inco-Related Contamination

8. In or about October 1997, the MOE, in response to a request for comments in relation to

draft official plan policies submitted to the MOE by the City, first notified the Citys Director of

Planning that properties with elevated levels of nickel, copper and cobalt should be treated as

contaminated lands, requiring assessment and remediation prior to any development.

Reference: Affidavit of Charles Miller, Responding Motion Record of the City,

Tab 2, para. 4.

9. Previously, there was a general but non-specific awareness of Inco-related contamination,

and some discussion between the City and the MOE and/or the City and individual residents

regarding concerns of Inco-related contamination in the 1990s prior to 1997. Such discussions

were in the context of a few specific individual applications for development/rezoning.

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However, the City was not directed by the MOE until October 1997 to treat lands with elevated

levels of nickel, copper and cobalt as contaminated for land planning and development purposes.


Tab 2, para. 4, Transcript of the Cross-Examination of Charles Miller, April 30,2002, question 152, page 49 and pages 22-26.

Port Colbornes Environment and Current Conditions

10. The City has not performed any sampling nor retained any experts to comment on soil

conditions, ambient air levels, the relative distribution of nickel and other contaminants of

concern in the community or the impact on the health and wellbeing of residents. The City relies

upon the submissions of Inco, the MOE and the Regional Municipality of Niagara in their

respective factums in this regard.

CBRA

11. Inco has outlined in great detail throughout its factum the purpose and benefits of the

CBRA. The City adopts Incos submissions in that regard and will expound on those

submissions further when it addresses the preferable procedure criterion set out in s. 5(1)(d) of

the CPA.

12. Of particular significance to the City is the tremendous public involvement in the CBRA

and its accountability to the Citys constituents, the residents of Port Colborne. In 2000, the City

Council established a Public Liaison Committee (hereinafter the PLC) attached to the CBRA.

The PLC is a committee made up of residents from varying backgrounds to reflect wide-ranging

community interests, with the express purpose of representing the interests of the community at

large. Its role is to solicit public input, inform the public, monitor the progress of the CBRA and

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provide input to Inco and the MOE, with the expert advice of the PLCs technical expert, Beak

International (hereinafter Beak), relating to the Technical Scope of Work and overall conduct

of the CBRA.


Tab 2, para. 6, Affidavit of Paul Dayboll, Responding Motion Record of the City,

Tab 1, para. 4.

13. In the wake of criticisms levelled at the PLC and the CBRA by the Plaintiffs witness,

Ellen Smith, who is not a member of the PLC and resides in the Rodney Street community,

where residents interests are acutely divergent from those of the community at large, a

longstanding member of the PLC by the name of Mr. Paul Dayboll came forward to make his

views known to this Honourable Court and to dispel the inaccuracies contained in Ms. Smiths

affidavit.

Reference: Affidavit of Paul Dayboll, Responding Motion Record of the City, Tab 1.

14. The relative progress of the CBRA, which the Plaintiff criticizes has been fraught with

delay, is not a reflection of a flawed process in the opinion of Mr. Dayboll, who has been a

member of the PLC since its inception. On the contrary, it is a testament to the vigilance of the

PLC and its consultant, Beak, in participating in and overseeing the CBRA on behalf of the

community, including the PLCs active participation in the formulation of the Technical Scope

of Work and investigation of Chemicals of Concern. The timetable has been largely dictated by

the amount of debate between the PLC and its consultant and the other stakeholders in the CBRA

process, which Mr. Dayboll views as a positive indication of the important ongoing dialogue

between all stakeholders to come up with the best process for a solution to environmental

contamination concerns in Port Colborne.

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Reference: Affidavit of Paul Dayboll, Responding Motion Record of the City, Tab 1,

para. 6.

15. The CBRA process is transparent and fully accessible to the public through public PLC

and TLC (Technical Sub-Committee) meetings, PLC-sponsored drop-in centres and update

meetings to allow for community comment, drop-in forums with consultants involved in the

CBRA, community input sessions, the availability of key reports in the public library and posting

of PLC minutes on the Citys website. As a result, community participation has been a key

component in the PLC process from its inception, and the PLC has played a crucial role in

overseeing the CBRA, communicating community concerns to Inco and the MOE and their

respective consultants, and ensuring through the PLCs expert that the process remains

committed to developing the best solution possible - with the best science available - to

environmental contamination concerns in Port Colborne.

Reference: Affidavit of Paul Dayboll, Responding Motion Record of the City, Tab 1,

paras. 7-14.

PART III - ISSUES AND THE LAW

16. (a) Does the claim disclose a cause of action as against the City?

(b) Is there an identifiable class of two or more persons that would be represented by

Mr. Pearson?

(c ) Do the claims of the class members raise common issues as against the City?

(d) Would a class proceeding be the preferable procedure for the resolution of

common issues as against the City?

(e) Is Mr. Pearson an appropriate representative? In particular, would he fairly and

accurately represent the interests of the class? Has he produced a plan for theproceeding that sets out a workable method of advancing the proceeding on behalf

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of the class? Does he have, on the common issues, an interest in conflict with the

interests of other class members?

(a) Does the Claim Disclose a Cause of Action as Against the City?

17. The City recognizes that in determining whether the Plaintiffs claim discloses a cause of

action as against it, the pleadings must be accepted as true. The criterion under s. 5(1)(a) of the

CPA is essentially governed by the plain and obvious test (i.e., the claim should only be struck

where it is plain and obvious that no cause of action is disclosed).

18. Notwithstanding the relatively low threshold that the Plaintiff is required to meet under s.

5(1)(a), it is respectfully submitted that the claims as against the City disclose no cause of action

and, accordingly, the Plaintiff should fail on its motion to certify the action as against the City.

19. The claim against the City is framed in negligence, the particulars of which are set out in

paragraph 11 of the Plaintiffs Fresh as Amended Reply to the Citys Demand for Particulars.

Those particulars can be classified into the following general groupings: failing to investigate

and monitor the effects of the Inco refinery, failing to notify the residents of contamination of

lands, failing to respond to public complaints, permitting residents to use property owned or

operated by the City and passing by-laws and granting approvals for development.

Reference: Fresh as Amended Reply to Demand for Particulars of the City, para. 11.

20. Mr. Pearson alleges, inter alia, that the City knew or ought to have known of some or all

of the damage that the ongoing release of contaminants and other activities at the Inco refinery

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caused (and continues to cause) to proposed class members. Despite such knowledge, however,

the City allegedly failed to apply and/or enact by-laws to prevent such damage to the health and

property of residents of Port Colborne.

Reference: Fresh as Amended Statement of Claim, paras. 22 and 23.

21. In the Plaintiffs Fresh as Amended Reply to the Citys Demand for Particulars, the

Plaintiff sets out the particulars of his allegation as to what steps the City allegedly failed to take

to protect the health and property of the residents. Specifically, he relies on section 102 of the

Municipal Act, R.S.O. 1990, c.45, which permits municipalities to pass such by-laws and make

such regulations for the health, safety, morality and welfare of the inhabitants of the municipality

in matters not specifically provided for by this Act and for governing the conduct of its members

as may be deemed expedient and not contrary to law. Mr. Pearson also cites section 210(140)

of the Municipal Act, which permits councils of local municipalities to pass by-laws for

prohibiting and regulating public nuisances.

Reference: Fresh as Amended Reply to Demand for Particulars of the City, para. 3.

22. The Plaintiff relies on two specific time frames as they relate to the alleged liability on

the part of the City. First, he alleges that since 1959, the City knew or ought to have known of

damage caused by the refinery, and that it was within the Citys power and mandate to enact

such by-laws and/or regulations pursuant to the Municipal Act. Second, he asserts that the City

has certain powers under the Planning Act and the Municipal Actto grant approvals, provide

zoning and issue building permits. With respect to the latter, the Plaintiff alleges that since at

least 1998, the City has been aware of information from Inco that large portions of the City were

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contaminated and that the City knew or ought to have known that such contamination could

cause adverse effects. Nevertheless, the City failed to advise the residents of these facts, but

continued to grant approvals, provide zoning and issue building permits as part of its normal

operations, with knowledge that the lands were compromised. In addition, Mr. Pearson alleges

that the City owns and operates parks and recreational facilities and permitted residents to utilize

these areas without taking steps to investigate, monitor or protect the proposed class members.

Reference: Fresh as Amended Reply to Demand for Particulars of the City,

paras. 4, 6, 8 and 12.

23. The City submits that it is well established in Canada that a municipality (or government

actor) is not liable in negligence for policy decisions, but only for operational decisions on the

basis that policy is the prerogative of the elected legislature. Accordingly, it is inappropriate for

courts to impose liability for a particular policy decision or to second-guess legislators on matters

of policy.

Reference: Cooper v. Hobart [2001] S.C.J. No. 76 (S.C.C.), Citys Brief of

Authorities, Tab 1.

24. Having regard to the Plaintiffs allegations, Mr. Pearson asserts, inter alia, that the City

of Port Colborne should have exercised its permissive powers under theMunicipal Actto enact

by-laws for the protection of the residents of Port Colborne. It is respectfully submitted that the

decision not to enact by-laws is a governmental policy decision and not an operational one. As

such, on the face of the Plaintiffs pleading, it is plain and obvious that he cannot succeed against

the City with respect to those claims.

Reference: Cooper v. Hobart [2001] S.C.J. No. 76 (S.C.C.), The Citys Brief of

Authorities, Tab 1.

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25. Furthermore, to the extent that some municipal decisions called into question by the

Plaintiff were operational and not policy decisions (and thus not necessarily insulating the City

from liability), the City respectfully submits that prima facie there is not sufficient proximity

between the alleged harm and the issuance of permits, the use of parks and facilities and the

enactment of by-laws to establish a prima facie duty of care owed by the City (particularly when

97% of the Inco-related contamination was sustained prior to 1960).

Reference: Cooper v. Hobart [2001] S.C.J. No. 76 (S.C.C.), The Citys Brief of

Authorities, Tab 1, Incos Factum, para. 21.

(b) Is There an Identifiable Class of Two or More Persons That Would BeRepresented by Mr. Pearson?

26. The City does not dispute that the proposed class as set out in the Fresh as Amended

Statement of Claim is defined by objective criteria and is not merit-driven or circular. However,

it respectfully submits that there is no rational connection between the class definition and the

common issues in this case. Furthermore, the definition is overly broad.

27. InHollick v. Toronto (City), 205 D.L.R. (4th

) 19 (2001), McLachlin C.J.C, delivering the

decision for the Supreme Court of Canada, stated at page 31:

The representative need not show that everyone in the class shares the same

interest in the resolution of the asserted common issue. There must be some

showing, however, that the class is not unnecessarily broad that is, that the classcould not be defined more narrowly without arbitrarily excluding some people

who share the same interest in the resolution of the common issue. Where the

class should be defined more narrowly, the court should either disallowcertification or allow certification on condition that the definition of the class be

amended: seeWebb v. K-Mart Canada Ltd. (1999), 45 O.R. (3d)

389Mouhteros v. DeVry Canada Inc., (1998), 41 O.R. (3d) 63 (Ont. Ct. (Gen.Div.)).

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Reference: Hollick v. Toronto (City), 205 D.L.R. (4th

) 19 (2001) at p. 31,

Plaintiffs Book of Authorities, Tab 2.

28. Implicit in the identifiable class criterion is the requirement that there be some rational

relationship between the class and the common issues.


) 19 (2001) at p. 31,

Plaintiffs Book of Authorities, Tab 2.

29. Turning to the definition of the class, as defined by Mr. Pearson, there are numerous

proposed class members who would have no likelihood of success against the City, let alone

against the other Defendants. For example, residents living in the western portion of Port

Colborne, where little or no contamination has been identified by MOE testing, have no

likelihood of success in this action and should not properly form part of the class. That being

said, even within the Rodney Street area, soil sampling has demonstrated the sporadic or

patchy nature of the contamination. The City submits that it would be virtually impossible to

alter the parameters of the class definition without excluding certain residents who may properly

form part of an identifiable class and without including residents who have no claims whatsoever

against any of the Defendants.

Reference: Conard Affidavit, paras 27-28, Incos Responding Motion Record, Vol I, tab

1, pp. 13-14.)

30. The City submits that the Plaintiff faces an impossible task of defining the class in an

objective manner that has any rational connection - either geographically or temporally -

between the class definition and the common issues in this litigation. Respectfully, this

highlights the inappropriateness of a class proceeding for addressing the types of concerns

expressed by Mr. Pearson in this lawsuit.

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(c ) Do the Claims of the Class Members Raise Common Issues as against the

City?

31. The Plaintiff asserts that the common issues as against the City are the Citys knowledge

of contamination and its subsequent conduct.

Reference: Plaintiffs factum, para. 118, page 37.

32. In the Citys respectful submission, those issues may very well be common to proposed

members of the class, but their determination will not significantly advance Mr. Pearsons claims

or the claims of any other proposed class members. Moreover, the existence of common issues

cannot be looked upon without regard to the individual issues in considering whether a class

proceeding is a preferable method for advancing the claim.


) 19 (2001) at p. 31,

Plaintiffs Book of Authorities, Tab 2, page 35 and 36.

33. Delivering the decision for the Supreme Court of Canada, McLachlin C.J.C. inHollick

commented that in the circumstances of that case any common issue was negligible in relation to

the individual issues, stating at p. 36:

While each of the class members must, in order to recover, establish that

the Keele Valley landfill emitted physical or noise pollution, there is no

reason to think that any pollution was evenly distributed across thegeographical area or time period specified in the class definition. On the

contrary, it is likely that some areas were affected at one time while other

areas were affected at other times.Some class members are close to thesite, some are further away. Some class members are close to other

possible sources of pollution. Once the common issue is seen in the

context of the entire claim, it becomes difficult to say that resolution of thecommon issue will significantly advance the action.


) 19 (2001) at p. 31,

Plaintiffs Book of Authorities, Tab 2, page 36.

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(d) Would a Class Proceeding be the Preferable Procedure for the Resolution of

Common Issues as Against the City?

34. A class proceeding is not the preferable procedure for resolving the common issues in

this case, and the City concurs with and adopts the submissions of its co-Defendants with respect

to the innumerable individual issues and the extensive processes that will necessarily be involved

in the determination of liability and damages as against any and all of the Defendants.

35. Insofar as the City is concerned, the common issue as to what the City knew about

Inco-related contamination at any given time will not significantly advance Mr. Pearsons claim

or the claim of any other proposed class member.

36. One of the claims asserted by the Plaintiff against the City is that it continued to issue

building permits and zoning approvals after 1998 when it knew or ought to have been aware of

contamination from the Inco refinery. The Plaintiff further asserts that had the City informed

residents, they would not have undertaken the developments in question and would thereby have

avoided certain financial losses after the September 2000 announcement concerning Inco-related

contamination and/or would have avoided health risks associated with the construction in

question.

Reference: Plaintiffs Reply to the Citys Demand for Particulars, paras 4 and 7.

37. The determination of liability on the above-noted theory will require an extensive

examination of every permit issued, its circumstances, whether the lands in each and every case

were contaminated, whether the City breached a duty of care in issuing the permit or approval,

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what knowledge the applicant had of Inco-related contamination at the time of the application for

the permit, how that individual would have acted differently had he known of the environmental

status of the lands in question, what damages the individual has sustained to health or property as

a result thereof and their causal connection, if any, to the conduct of the City.

38. With respect to the allegation that the City continued to permit use by residents of parks

and recreational facilities owned or operated by the City, the determination of whether the City

had the power to prohibit such use may be a common issue, but it will not assist this

Honourable Court in the step-by-step analysis that will be required in order to establish liability

on the part of the City for any failure to prohibit such use. This will require, inter alia, soil

sampling of all of the sites in question, whether the City breached a duty of care at any given

time by failing to take steps to prohibit use of its public parks and facilities, the frequency of use

of those parks or facilities by individual class members, risk factors for developing the particular

illnesses alleged by class members, and the causal connection, if any, between use of that park or

facility and the individuals damages.

39. The City submits that the adjudication of 20,000 class members claims will require

thousands of trials to determine liability and damages with respect to the allegations against the

City. With theoretically as many distinct trials as members of the class, one of the chief

objectives of the CPA - judicial economy - would militate against certification in this case.

40. The individual issues are not minor matters that will be amenable to mini-discovery or

mini-hearings. Rather, the individual issues will dominate the hearing of each and every class

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members case. Having regard to the negligible role that the determination of the common issues

will play in this lawsuit, and the overarching objectives of the CPA including access to justice

and judicial economy - a class proceeding is clearly not the preferable procedure for adjudicating

the Plaintiffs claims.

41. The onus rests with the Plaintiff to prove to this Honourable Court that the class action is

preferable to other available procedures. In other words, the Defendants need not prove that the

CBRA is preferable. Nevertheless, it is respectfully submitted that the CBRA is a far superior

method for addressing the communitys environmental contamination concerns relating to the

Inco refinery. Indeed, with ongoing involvement and support from Inco, the MOE, the Regional

Municipality of Niagaras Public Health Department, and the community at large through the

PLC, the CBRAs co-operative, consultative, community process will provide an effective and

workable process for developing a solution to environmental contamination relating to Inco

emissions in the community.

Reference: Affidavit of Charles Miller, Responding Motion Record of the City, Tab 2,

para. 8, Affidavit of Paul Dayboll, Responding Motion Record of the City, Tab 1, para.

14, Reference: Hollick, supra, Plaintiffs Brief of Authorities, Tab 2.

42. With respect to the third objective of the CPA promoting behaviour modification - the

City respectfully submits that a class proceeding is not the most efficient method for promoting

this goal having regard to the unique circumstances in Port Colborne. In particular, this case

relates not to current industrial activities but to the legacy of historical emissions in a by-gone era

of heavy industrialization. Second, by voluntarily initiating and funding the CBRA process, Inco

has already recognized its historical role with respect to environmental contamination in Port

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Colborne and is offering a solution on a no-questions-asked basis for the benefit of the entire

community. Throughout this process, Inco, the MOE, the Regional Municipality of Niagara and

the City through its ongoing administrative support of the PLC have consistently

demonstrated responsible behaviour and attitudes in their respective corporate, regulatory and

municipal roles.

(e) Is Mr. Pearson an appropriate representative? In particular, would

he fairly and accurately represent the interests of the class? Has he

produced a plan for the proceeding that sets out a workable method of

advancing the proceeding on behalf of the class? Does he have, on the

common issues, an interest in conflict with the interests of other classmembers?

43. In assessing whether the proposed representative is adequate, the Court may look to the

motivation of the representative, the competence of his counsel and the capacity of the

representative to bear any costs that may be incurred by the Plaintiff in particular (as opposed to

by counsel or class members generally). The proposed representative need not be typical of

the class nor the best possible representative. Nevertheless, the Court should be satisfied that

the proposed representative will vigorously and capably prosecute the interests of the class.

Reference: Western Canadian Shopping Centres v. Dutton, [2001] 201

D.L.R. (4th

) 385 (S.C.C.) Plaintiffs Brief of Authorities, Tab 1.

44. The City concurs with the submissions made by Inco at paragraphs 151 to 157 of its

factum that Mr. Pearson has not shown that he can fairly and adequately represent the class in

these proceedings. In particular, the City submits that Mr. Pearson is not an appropriate

representative, by virtue of his failure to demonstrate to this Honourable Court that he and/or his

solicitors are committed to funding this process through to the end, which is especially

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significant when the outcome of his prosecution of the common issues will be binding upon his

fellow class members. Of equal importance, the City submits that Mr. Pearson has an

irreconcilable and fundamental conflict of interest with other members of the defined class.

45. In Sutherland v. Canadian Red Cross Society (1994), 17 O.R. (3d) 645, Montgomery J.

rejected the Plaintiffs bid for certification. In so doing, the motions judge found that the

proposed representatives were not proper representatives because neither of them was cross-

infected. In other words, they were representative of the class, but not a particular sub-class.

That argument was rejected by the motions court judge and on subsequent appeal in Anderson v.

Wilson (1999)175 D.L.R. (4th) 409, where the Ontario Court of Appeal recognized the existence

of a subclass whose claims differed from the representatives.

Reference: Sutherland v. Canadian Red Cross Society (1994), 17 O.R. (3d) 645,

Citys Brief of Authorities, Tab 2, Anderson v. Wilson 175 D.L.R. (4th

) 409,

Plaintiffs Brief of Authorities, Tab 4.

46. In the case of Port Colborne, we are not dealing with a sub-class but rather a group of

persons whose interests are so fundamentally in conflict with Mr. Pearson that they cannot be

reconciled within the context of a class action suit. Specifically, Mr. Pearson resides in the

Rodney Street area of Port Colborne, a neighbourhood that has been surrounded by heavy

industry for the last 100 years. It differs from other neighbourhoods of Port Colborne, in its

exposure to industry, low property values, unique soil conditions, and higher levels of

contamination than elsewhere in the community. By contrast, in the western section of Port

Colborne, the MOE has detected little or no contamination. Yet, those residents face

stigmatization and the potential loss of property value not by virtue of the alleged conduct of

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any of the Defendants but by Mr. Pearsons attempt to paint the entire City as a hotbed of

environmental contamination.

Reference: 1999 MOE Phytotoxicology Soil Investigation, pp. 63-71; Inco Record, Vol I,

Tab 1E, pp. 167-175.

47. To cite a further example of Mr. Pearsons conflict of interest with other members of the

class, Mr. Dayboll (the PLC member referred to in paragraph 13 herein) approached the

Plaintiffs counsel after reading Ellen Smiths affidavit and asked him to assist him in preparing

an affidavit to put before this Honourable Court. The Plaintiffs counsel was not prepared to

have another class members voice heard whose views did not concur with those of Mr. Pearson

or his witnesses and would not assist him. Refusing to be silenced, Mr. Dayboll a member of

the proposed class - approached the Citys solicitors to assist him in bringing his views to the

attention of this Court. As a result, he swore an affidavit to dispel the inaccuracies set out in Ms.

Smiths affidavit, which was filed by the City in its responding motion record.

Reference: Transcript of Paul Dayboll, pp. 2-10, 13, Responding Record of the City, Tab

1.

48. The City submits that the inherent conflict of interest between Mr. Pearson and other

members of the class demonstrates to this Honourable Court not only the inappropriateness of

Mr. Pearson as a class representative but is just one further example of how ill-suited the CPA

scheme is to address the unique circumstances surrounding historical Inco emissions in Port

Colborne.

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PART IV- ORDER SOUGHT

49. The City of Port Colborne respectfully requests an order dismissing the Plaintiffs motion

for certification, with costs.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

____________________________________

Steven Stieber

_____________________________________Michelle Brodey

Counsel for the Defendant, The Corporation of the City of

Port Colborne

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