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REAL ESTATE was the Ministry of Health guidelines, according to which the nickel deposits did not pose a health risk. The plaintiffs argued Inco had caused harm because health concerns about the emissions had affected property values, a claim the court rejected, noting Inco was not to blame for public concerns that surfaced years after the plant was closed. Michael Brown, a partner with Norton Rose OR LLP in Toronto, says a key les- son to be drawn from this ruling is that plaintiffs who narrow their claims to make them more amenable for class action certi- fication "have to be careful that they don't narrow them so far they end up with a claim that isn't really provable. If you're claiming that the loss of property value is based on an environmental contaminate which you say is a risk to human health, you've got to prove the risk." Furthermore, Brown observes, the claim that property values slumped because of the community's belief there was a health hazard could turn out to be a self-fulfilling prophecy, particularly when — as the appeal court observed — many of the claims in the press about serious health risks were attributed to the plain- tiffs' lawyers. Co-counsel for the plaintiffs Eric TitlePlus_CL_Mar_10 2/11/10 12:54 PM Page 1 Gillespie, principal of Eric K. Gillespie Professional Corp. in Toronto, says it's hard for any plaintiff to prove harm to human health arising from environmen- tal contamination and, if this proof is required, claims will likely be decided on the basis of whatever standard has been set by a regulatory body such as the Ontario Ministry of the Environment. But he argues this could leave property owners without recourse in the face of intrusive actions by industry. "If one con- siders that historically a person's home was their castle, now industry appears to be able to deposit their waste products on private land without the consent of the owner. The owner, then, in order to have it removed or be compensated has the onus of showing actual harm. That is, in many people's view, a very onerous Everything you need Together we have all the tools The TitlePLUS® protect your clients from title risks.1 Program works with you to help With the right tools we assist you, through our legal serv- ices coverage2 , by reducing the inconven- ience of dealing with a loss as the result of an error or omission in your real estate transac- tions. To ensure your clients get the most compre- hensive coverage in one policy, take a look at the TitlePLUS Program, your Bar-related® estate partner! real PROTECTION AS GOOD AS IT GETS 1-800-410-1013 1 titleplus.ca Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®)/ Assurance LAWPRO®. Assurance LAWPRO is a registered name used in Québec by Lawyers' Professional Indemnity Company. Contact LAWPRO for brokers in Manitoba, Alberta and Québec. 2 Excluding OwnerEXPRESS® policies and Québec policies. ® TitlePLUS, the TitlePLUS logo, OwnerEXPRESS, LAWPRO and Assurance LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ® BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. 22 JAN UARY 2012 www. CANADIAN Lawyermag.com