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human health is the new actionable threshold for contamination and final resolution as to the correct meaning of 'non-natural' use is required to provide landowners, regulators, and industrial actors across Canada with certainty around their obligations and liabilities. What is the appropriate threshold for actionable nuisance or strict liability in the context of contaminated lands? What should become of the entrenched triangulation of environmental no-fault liability, the inviolability of personal property, and the polluter pays prin- ciple." Inco's base metal refinery was Port Colborne's major employer during its 66 years of operation from 1918 until its closure in 1984. As the appeal court judges observed, it should not have come as a surprise to local residents that nickel was a component of the emissions that they could see stream- ing every day from its 500-foot stack. But homeowners did not begin voicing serious concerns about the impact on their properties until the late 1990s and early 2000s, when Ontario Ministry of Environment tests revealed that the soil on many properties contained concen- trations of nickel oxide deposits that were high enough to cause a risk to plant life, though not to human health. The ministry ordered Inco to take reme- dial action by removing the soil from 25 properties and the company complied with this order, except for the fact that one homeowner, Ellen Smith — who would later become the representative plaintiff in the class action suit — did not allow them to clean up her property. Even though ministry reports did not indicate there was a health hazard, reports about possible health risks cir- culated widely in the community and in local media. One consequence of this was that homeowners maintained that they were trapped in their contaminat- ed homes because their property values had declined and no one wanted to buy their properties anyway. The class action initially claimed that the emissions caused personal inju- ry and adverse health effects, but the health claims — notoriously difficult to advance in a class action because each person's health issues are different — were dropped and the suit focused instead on the claim that homeowners' properties had become devalued as a result of the public concern about the contaminated soil. In 2005, the Ontario Court of Appeal overturned a lower court order and approved certification of the class action, noting that a key fac- tor in its decision was that the plaintiffs had narrowed the scope of the case by leaving out the health and injury claims that would be hard to consider as com- mon issues. In 2010, Ontario's Superior Court of Justice found in favour of the plaintiffs, a decision overturned by the appeal court last October. Ironically, given the fact that the class action had been certified only after the health claims were abandoned, the appeal ruling was based partly on the fact that the plaintiffs had failed to provide any evidence of actual injury or harm to health, so that the only evidence before the court in this regard SPECIALIZATION IN BUSINESS LAW Classes Starting in September 2012 Part-time, Executive LLM program for corporate counsel and practising lawyers Information Sessions Monday, January 16, 2012, 5:30 - 7:00 pm Friday, January 20, 2012, 8:00 - 9:30 am U of T Faculty of Law, Faculty Lounge 78 Queen's Park, Toronto No registration required. Please feel free to drop in anytime during these hours. Taught by U of T Faculty of Law professors, together with top international faculty from INSEAD Business School, NYU School of Law, and Rotman School of Management. For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html TIME: EVENT: Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. GLLM_CL_Jan_12.indd 1 www.CANADIAN Lawyermag.com JAN UARY 2012 2111-12-07 9:13 AM