In 2000, Ellen Smith became alarmed upon learning of high levels of nickel contamination in the soil on her property in Port Colborne, Ontario. The nickel particles had come from Inco Ltd.'s nickel refinery, which had operated in the area starting in 1918 and ending in 1984. She was not alone; residents were concerned about possible health risks and decreased property values accompanying such contamination. In response, a class action representing approximately 7000 residential property owners was brought against Inco.

At trial, the judge ruled that the nickel particles constituted physical damage to the properties in question. He also ruled that potential public health concerns surrounding such deposits meant that the properties in question failed to appreciate in value as much as they otherwise would have. On this basis, the trial judge awarded the plaintiffs $36 million in damages.

In 2011 the Court of Appeal overturned this award. The court concluded that the nickel deposits did not cause physical harm to the properties in question, but merely changed the chemical composition of the soillike fertilizer would, for example. To win their case, the plaintiffs must show some detrimental effect either on the land itself or on its use by the owners. The fact that nickel particles in the land raised concerns about potential health risk was not enough. The Court also stated that the plaintiffs had failed to show that there was insufficient appreciation in the value of their properties. The action was dismissed and Inco was awarded costs of $100,000.The Supreme Court of Canada refused to hear an appeal.

What are the risks that litigants take in commencing an action of this kind?

Are these risks outweighed by the possible benefits?

How does the risk of litigation make industry more accountable for the pollution it may cause?