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REAL ESTATE Clearing the air Dismissal of O class action will likely head to the Supreme Court and provide more clarity on strict liability in environmental damage cases. BY KEVIN MARRON wners of properties contaminated by neigh- bouring industry may find it more difficult to press their claims in court in light of an Ontario Court of Appeal ruling overturning a $36-million award to residents of Port Colborne, Ont., for property devaluation attrib- uted to nickel oxide emissions from an Inco refinery. "If you're a polluter, your likelihood of not having to address a civil claim just went up," says Marc McAree, a partner with Willms & Shier Environmental Lawyers LLP in Toronto. McAree says he is hoping the Supreme Court of Canada will con- sider the appeal court's decision in the class action Smith v. Inco, which will, he says, "have huge and far-reaching implications for many other cases." The plaintiffs filed their leave to appeal to the SCC in early December. It's a complicated case that has had a tortuous roller coaster ride through the courts ending with the appeal court's ruling that the class action, brought on behalf of almost every homeowner in Port Colborne, had failed to establish Inco's liability under private nuisance or the rule of strict liability as formulated in the 140-year-old British case Rylands 20 JAN UARY 2012 www. CANADIAN Lawyermag.com v. Fletcher. While many lawyers agree that the appeal court provided cogent reasons for overturning the $36-million award, McAree says his prime concern is that there should be a review of the court's rulings on the law of strict liability, which he says "will be used by long-time highly profitable industrial polluters to try to obfuscate liability." "We need the Supreme Court of Canada to take a good hard look at what this really means from a public policy perspective," McAree says. In the plaintiff 's leave to appeal to the Supreme Court, counsel argue: "This court's clarification of whether I nc o pierre–paul pariseau