On December 4, 2013, the Nova Scotia Court of Appeal released its decision which overturned the Honourable Justice Murphy’s decision of January 21, 2012 which had successfully certified the proposed class action on behalf of the residents of Sydney, NS.
The Appeal Court stated that differences among the members of the class were too numerous to allow the common issues which had been certified to be common to every class member. The decision also indicated that the panel of judges were not of the belief that the contaminants emitted by the Governments of Canada and Nova Scotia from the Steel Plant and Coke Ovens were evenly deposited across the communities affected or during the time period as alleged in the class action.
While the Court of Appeal’s decision is disheartening, Wagners are continuing in their efforts to seek justice for the community.
Recently, Ray Wagner has taken a two-pronged approach to continue with the litigation. On January 28, 2014, a motion to extend the time to file for leave to appeal to the Supreme Court of Canada was filed with Canada’s top Court. In addition, on the following day, motion materials were sent to the Chief Justice of the NS Court of Appeal seeking directions concerning a reconsideration of the Appeal Court’s findings of December 4th.
The reconsideration initiative is a result of recent decisions released by the land’s highest Court which were handed down after the NSCA made its decision in the Tar Ponds matter. One recent case, AIC Limited, concerns preferred procedure. The other case, Vivendi, deals with the commonality requirement.
In AIC Limited, the Supreme Court of Canada opined that an inflexible approach was not appropriate as it did not allow for access to justice, judicial economy and behaviour modification which are the three central themes of class proceedings. Most importantly, if access to justice is not obtainable through the class action scheme, then the only other alternative would be for the residents of Sydney who have been affected by the contamination to bring individual actions. This would be too expensive and NO access to justice would thus be available.
In Vivendi, that decision focused on common issues, one of the concerns raised by the NS Court of Appeal in the Tar Ponds decision. The Supreme Court of Canada’s decision inVivendi stated that access to justice must be made available and claims must be allowed to proceed so that a common issue may be answered in the context of a class proceeding. Even if issues may be different, the SCC said the action should still be able to proceed as long as the issues were not in conflict.
With respect to the motion for an extension of time, the Governments of Canada and Nova Scotia did not oppose the request. On February 17, 2014, the Supreme Court of Canada approved Mr. Wagner’s motion and an Order was signed by the Honourable Justice Cromwell granting the extension. Wagners will have 10 days after any decision from the NS Court of Appeal on the reconsideration motion is released to file their leave to appeal to the Supreme Court of Canada.
Wagners feels that this case is of great national importance. It is significant for people across Canada to be able to have access to justice when they or their communities are impacted by environmental concerns. Wagners has been involved in the litigation for 10 years on behalf of the residents and community of Sydney, Nova Scotia.
Much has transpired over the last decade during Wagners quarrel with the Governments concerning the harm that has been caused by decades of pollution. While much time has passed since the lawsuit was filed in 2004 and some victories, and some defeats, have resulted during the litigation, Wagners will not waver in their efforts to obtain justice for those wronged by the actions of environmental polluters.