Court file no.

: 12023 /01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: WILFRED ROBERT PEARSON Plaintiff - and INCO LIMITED, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CORPORATION OF THE CITY OF PORT COLBORNE, THE REGIONAL MUNICIPALITY OF NIAGARA THE DISTRICT SCHOOL BOARD OF NIAGARA, and THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD Defendants Proceeding under the Class Proceedings Act, 1992 FRESH AS AMENDED STATEMENT OF CLAIM TO THE DEFENDANTS A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff(s). The claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the plaintiff(s) lawyer(s) or, where the plaintiff(s) do(es) not have a lawyer, serve it on the plaintiff(s), and file it, with proof of service, in this court office, WITHIN TWENTY DAYS after this statement of claim is served on you, if you are served in Ontario. If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more

days within which to serve and file your statement of defence. IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. If you wish to defend this proceeding but are unable to pay legal fees, legal aid may be available to you by contacting a local Legal Aid office. Date: March 26, 2001 Issued by: M. Ligotti Local registrar Address of court office: TO: Inco Limited 187 Davis Street Port Colborne, Ontario L3K 5W2 Her Majesty the Queen in Right of Ontario Ministry of the Attorney General: Crown Law Office, Civil Law 720 Bay Street Toronto, Ontario M5G 2K1 Attention: Jack Coop, Q.C. The Corporation of the City of Port Colborne 66 Charlotte Street Port Colborne, Ontario L3K 3C8 The Regional Municipality of Niagara 2201 St. David's Rd., P.O. Box 1042 Thorold, Ontario L2V 4T7 The District School Board of Niagara 191 Carleton Street St. Catharines, Ontario L2R 7P4 The Niagara Catholic District School Board 427 Rice Road Welland, Ontario L3C 7C1 CLAIM 102 E. Main Street Welland, Ontario L3B 3W6

1.

THE PLAINTIFF CLAIMS, jointly and severally against all defendants; (a) (b) (c) compensatory damages in the amount of $600 million dollars; punitive and exemplary damages in the amount of $150 million dollars; prejudgment and postjudgment interest in accordance with Sections 127, 128 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43; (d) (e) the plaintiff's costs of this action on a solicitor and client basis; and such further and other relief as to this Honourable Court may seem just.

2.

THE PLAINTIFF CLAIMS, against the defendants the District School Board of Niagara and

the Niagara Catholic District School Board; (a) an interim, interlocutory and permanent injunction restraining the defendant the District School Board of Niagara from causing or allowing members of the Class to be exposed to nickel oxide and other toxic substances when they attend or use the Humberstone Public School, Port Colborne, Ontario; (b) an interim, interlocutory and permanent injunction restraining the defendant the Niagara Catholic District School Board from causing or allowing members of the Class to be exposed to nickel oxide and other toxic substances when they attend or use St. Therese Catholic School, Port Colborne, Ontario; (c) (d) the plaintiffs costs of all proceedings undertaken in order to obtain this relief; and such further and other relief as to this Honourable Court may seem just.

A. THE PARTIES

3.

The plaintiff Wilfred Robert Pearson (Pearson) resides at 97 Rodney Street, Port Colborne,

Ontario, one block away from the defendant Incos Port Colborne refinery.

4.

The defendant Inco Limited (Inco) is a corporation incorporated pursuant to the laws of

Canada, and carries on business as a producer of nickel, copper, cobalt and other precious metals from a refinery located at 187 Davis Street, Port Colborne, Ontario (the Refinery), and elsewhere throughout the world.

5.

The defendant Her Majesty the Queen in Right of Ontario (HMQ) through its various

representatives is the primary public regulator of the Refinery.

6.

The defendant the Corporation of the City of Port Colborne (the "City") is a municipal

corporation incorporated pursuant to the laws of the Province of Ontario. The Refinery is located within the boundaries and is under the jurisdiction of the City.

7.

The defendant the Regional Municipality of Niagara (the "Region") is a municipal

corporation incorporated pursuant to the laws of the Province of Ontario. The Refinery is located within the boundaries and is under the jurisdiction of the Region.

8.

The defendant the District School Board of Niagara (the DSBN) was established pursuant

to regulations made under the Ontario Education Act and related legislation, and operates public schools throughout the Niagara region including Port Colborne.

9.

The defendant the Niagara Catholic District School Board (the NCDSB) was established

pursuant to regulations made under the Ontario Education Act and related legislation, and operates separate schools throughout the Niagara region including Port Colborne.

B. DEFINITION OF THE CLASS 10. Pearson brings this action pursuant to the Class Proceedings Act, 1992 on behalf of the

following class (the "Class" or "Class Members"): A. All persons owning or occupying property since March 26, 1995 within the area of the City of Port Colborne bounded by Lake Erie to the south, Neff Road/Michael Road to the east, Third Concession to the north and Cement Road/Main Street West/Hwy 58 to the west, or where such a person is deceased, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person; B. All students attending schools operated by the District School Board of Niagara or the Niagara Catholic District School Board since March 26, 1995 within the area of the City of Port Colborne bounded by Lake Erie to the south, Neff Road/Michael Road to the east, Third Concession to the north and Cement Road/Main Street West/Hwy 58 to the west, or where such a person is deceased, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person; and C. All living parents, grandparents, children, grandchildren, siblings, and spouses
4

(within the meaning of Section 61 of the Family Law Act) of persons defined in paragraphs A and B above, or where such a family member has died thereafter, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person.

C. INCOs CONTAMINATION OF PORT COLBORNE 11. In 1918, Inco began to construct and operate the Refinery. The Refinery is situated on

approximately 500 acres of land owned by Inco and located on the shores of Lake Erie adjacent to the Welland Canal.

12.

Since then Inco has carried out continuous and extensive refining operations at the Refinery,

including the refining of nickel, copper, cobalt and other precious metals. At times the Refinery has employed up to 2,600 workers. It is estimated that the Refinery on average has produced between 47 million and 200 million pounds per year of electrolytic nickel alone.

13.

In 1984 the scale of operations at the Refinery was reduced, and the Refinery ceased to

process nickel. However, today the Refinery still continues to operate, processing cobalt and precious metals.

14.

Since it began operation, the Refinery has continuously emitted toxic, noxious, dangerous

and hazardous substances into the natural environment, including the air, water and soil of Port Colborne. These contaminants have included, but are not limited to oxidic nickel, copper, cobalt,
5

chlorine, arsenic, zinc and lead. These contaminants are toxic and/or known human carcinogens. All of these contaminants continue to be emitted from the Refinery to this day.

15.

These contaminants can now be found throughout the lands owned, occupied or used by

Class Members, in quantities far exceeding all known and accepted levels. The most common contaminant, nickel oxide, which has been spread in vast quantities over the entire area inhabited by the Class, has been specifically classified by the Government of Canada as a Group One Carcinogenic to Humans toxic substance, meaning that Health Canada has conclusively determined that there is a direct causal relationship between exposure to nickel oxide and cancer in humans, and that the risk of cancer exists at any level of exposure.

16.

Since the Refinery began to operate, the emission of these contaminants from the Refinery

has caused, and continues to cause extensive, severe and widespread damage to property, and to the value of property owned by Class Members.

17.

Since the Refinery began to operate, the emission of these contaminants has also caused, and

continues to cause extensive, severe and widespread damage to the physical and emotional health and well being of Class Members.

18.

In addition, Inco has conducted subsurface operations, including mining and/or contaminate

control operations at the Refinery, the details of which are known only to the defendants, but which have resulted in substantial subsidence in the vicinity of the Refinery. As a consequence, land,

homes and businesses owned, operated or used by Class Members have also been extensively damaged.

19.

In addition, Inco has deposited or supplied slag and other potentially hazardous materials, the

details of which are known to the defendants, used at or under properties in the vicinity of the Refinery. As a consequence, land, homes and businesses owned, operated or used by Class Members have been further and extensively damaged.

D. THE DEFENDANTS KNOWLEDGE 20. For decades, the defendant Inco has known of some, or all of the extensive and severe

damage that the ongoing release of contaminants (including the carcinogen nickel oxide), and other activities at the Refinery has caused and continues to cause to Class Members property and health. 21. However, despite this knowledge, it was not until September 20, 2000 that Class Members

were informed of any of the nature or scope of the damages caused to their property and health by Inco.

22.

As well, the defendants the City, HMQ, the Region, the DSBN and the NCDSB also all knew

or ought to have known of some, or all of the extensive and severe damage that the ongoing release of contaminants and other activities at the Refinery has caused and continues to cause Class Members. 23. However, despite this knowledge, the City, HMQ, the Region, the DSBN and the NCDSB

have all failed to take such steps or apply such laws, regulations and guidelines as their various
7

mandates require in order to prevent or attempt to prevent the extensive and severe damage to health and property that Class Members have been suffering.

E. DAMAGES TO THE CLASS 24. The ongoing discharge of contaminants (including known carcinogens) and other activities at

the Refinery, and the failure of the defendants to take proper or appropriate steps to prevent or minimize the effects of these contaminants and activities, has resulted in (but is not limited to) the following types of losses or injuries to property: (a) loss of use of and enjoyment of property owned, occupied or used by Class Members, including extensive business and personal losses; and (b) loss of value of property owned, occupied or used by Class Members, including the complete devaluation of certain properties, and loss of the ability to sell, finance or mortgage numerous properties.

25.

Furthermore, the ongoing discharge of contaminants (including known carcinogens) and

other activities at the Refinery, and the failure of the defendants to take proper or appropriate steps to prevent or minimize the effects of these contaminants and activities, has resulted in (but is not limited to), the following types of losses or injuries to the physical health and well being Class Members: (a) short term and long term exposure to substances including but not limited to the carcinogen oxidic nickel, copper, cobalt, chlorine, arsenic and lead, leading to
8

irritation and inflamation of the skin, eyes, nasal passages and lungs, coughing, choking, inability to breathe, burning sensations in the chest and abdomen, nausea, vomiting, headaches, dizziness, collapse, loss of consciousness, loss or impairment of the senses of smell and taste, loss of appetite, swelling of exposed areas, pain and suffering, loss of income, impairment of earning ability, future care costs, medical costs, loss of amenities and enjoyment of life, anxiety, nervous shock, mental distress, emotional upset, and out of pocket expenses; and (b) short term and long term exposure to, but not limited to, oxidic nickel, copper, cobalt, chlorine, arsenic, zinc and lead, which exposure has led and will continue to lead to long term health consequences, including but not limited to increased risks of cancer and lung disease. As a result of this exposure, some Class members have already, and others will continue to experience needless illness, loss of amenities and enjoyment of life, and will die premature deaths.

26.

As well, as a result of the ongoing discharge of contaminants (including known carcinogens)

and other activities at the Refinery, and the failure of the defendants to take proper or appropriate steps to prevent or minimize the effects of these contaminants and activities, Class Members who are parents, grandparents, children, grandchildren, siblings, and spouses of the Class Members have also suffered damages recognized pursuant to Section 61 of the Family Law Act. These damages include, but are not limited to: (a) pecuniary losses resulting from the injury to their relatives, expenses incurred for the benefit of such relatives, travel expenses incurred in visiting such relatives during

their treatment and recovery; (b) a reasonable allowance for loss of income and the value of nursing, housekeeping and other services rendered to such relatives; and (c) an amount to compensate for the loss of guidance, care and companionship reasonably expected to be received from such relatives if the release of contaminants and other activities at the Refinery had not occurred.

F. LIABILITY Inco 27. The ongoing release of contaminants and other activities at the Refinery has substantially and

unreasonably interfered with Class Members use and enjoyment of their lands and premises. In addition to causing extensive property damage, exposure to these contaminants has created widespread short term and long term health consequences and risks. Therefore, Inco is liable to the Class in nuisance.

28.

In addition to the common law of nuisance, the plaintiff pleads and relies on the

Environmental Bill of Rights Act, 1993, S.O. 1993, c.28, s. 103, which permits the plaintiff to assert a claim for public nuisance.

29.

In addition, Inco is liable in trespass, in that Inco has discharged and continues to discharge

contaminants onto lands owned or occupied by Class Members, thereby directly interfering with and damaging these lands.
10

30.

In addition, Inco is liable pursuant to the doctrine of strict liability in Rylands v. Fletcher, in

that the storage of arsenic, chlorine, copper, cobalt, lead, nickel (including nickel oxide) and zinc is a non-natural use of the Refinery lands, and Inco has failed to prevent the escape of these dangerous substances, thereby causing damage to Class Members.

31.

In addition, Class Members have lived, owned property and/or attended schools within close

geographic proximity of the Refinery such that Inco knew or ought to have known that a lack of sufficient care on the part of Inco would cause damage to Class Members. As a result, a duty of care was owed by Inco to the Class. The ongoing release of contaminants and other activities at the Refinery that have caused damage to the Class has occurred as a direct result of the negligence of Inco or of Incos employees or agents for whom it is legally responsible.

32.

Inco or its employees or agents have negligently: (a) failed to provide adequate equipment or procedures for the construction and continued operation of the Refinery; (b) failed to provide adequate safety equipment or procedures to prevent the release of contaminants from the Refinery; (c) failed to provide adequate equipment or procedures to detect the release of contaminants from the Refinery; (d) failed to provide adequate equipment or procedures to determine the composition and concentration of contaminants released from the Refinery;
11

(e)

failed to carry out operations at the Refinery so as not to disturb lands or cause subsidence in the vicinity of the Refinery;

(f)

failed to ensure that an adequate number of employees operated the Refinery, and failed to ensure that those employees who did operate the Refinery were properly qualified, properly trained and properly supervised;

(g) (h) (i)

failed to operate or maintain the Refinery in a reasonable or prudent manner; failed to monitor or inspect the Refinery in a reasonable or prudent manner; failed to warn Class Members of known hazardous emissions, defects and other failures at the Refinery;

(j)

specifically failed to warn Class Members that they were, and still are being exposed to the known carcinogen nickel oxide;

(k)

failed to obtain, in a timely fashion or at all, adequate information or advice in order to rectify known defects and failures at the Refinery;

(l)

failed to respond in a reasonable or prudent manner to complaints made by Class Members about the Refinery, its emission of contaminants and other activities;

(m)

failed to conduct or to cause to be conducted, accurate and complete studies of the impacts of the Refinery, in a timely fashion or at all;

(n)

failed to comply with specific statutory obligations under Section 14 of the Environmental Protection Act, R.S.O. 1990, c. E.19, by causing or permitting contaminants to be discharged into the natural environment which have resulted in adverse effects.

12

HMQ 33. Since at least 1959, HMQ has been involved in matters concerning contamination caused by

the Refinery in Port Colborne, initially through the Ontario Department of Mines, the Ontario Department of Agriculture, the Ontario Department of Health, and since 1971 through the Ontario Ministry of the Environment.

34.

In 1959 and 1960, representatives from the Department of Mines, the Department of

Agriculture and the Department of Health took detailed measurements of heavy metal concentrations (Nickel, Copper, Iron) in the dustfall, suspended particulate matter, soil and vegetation in the area North East of the Refinery, and conducted further experiments.

35.

Starting in or about 1970, HMQ initiated a policy of inspections of the Refinery. It became

HMQs operational practice to attempt to inspect the refinery on a regular basis, with these inspections occurring at times once per week, or even more frequently when detailed investigations were taking place. As a result, since 1970, hundreds of inspections of the Refinery have been performed by HMQ.

36.

One of the purposes of these inspections was to detect defects or deficiencies at the Refinery

in order to protect the property and health of Class Members. Results of these inspections were also made available to Class Members. 37. Starting in 1971, HMQ initiated a policy of issuing Certificates of Approval related to the

Refinery. Since 1971, more than 70 Certificates of Approval have been issued by HMQ in relation

13

to operational activities at the Refinery.

38.

One of the purposes of issuing Certificates of Approval was to protect the property and

health of Class Members.

39.

HMQ also knew or ought to have known that a lack of sufficient care on the part of HMQ in

inspecting, or in issuing approvals in relation to the Refinery would cause damage to Class Members.

40.

In addition, starting in the 1970's HMQ initiated a policy of studying the contamination on

lands owned or occupied by Class Members, and investigating complaints about the Refinery from Class Members.

41.

In 1972, it became HMQs operational practice to conduct an annual, detailed survey of

contamination on lands owned or occupied by residents of Port Colborne, and to investigate complaints about the Refinery made by residents of Port Colborne. In 1973, it became HMQs operational practice to conduct a regular ambient air sampling program for suspended particulate contamination on residents of Port Colbornes lands. As a result of these programs, surveys and investigations, since 1972 thousands of air, soil and water samples have been taken from Class Members lands, and hundreds of pages of studies and reports have been generated by HMQ. 42. One of the purposes of these programs, surveys and investigations was to protect the property

and health of Class Members. Results of these programs, surveys and investigations were also made

14

available or reported to Class Members.

43.

HMQ also knew or ought to have known that a lack of sufficient care on the part of HMQ in

carrying out these programs, surveys and investigations would cause damage to Class Members.

44.

As a result of HMQs numerous operational activities related to the Refinery including;

conducting regular inspections for more than 30 years; issuing dozens of Certificates of Approval; conducting regular sampling programs and surveys and making results available to Class Members, and since 1972 formally investigating complaints made by Class Members and reporting the results of these investigations to them, a duty of care was owed by HMQ to Class Members.

45.

Since beginning its operational activities at the Refinery, HMQ has: (a) (b) failed to properly inspect, monitor and investigate the Refinery; failed to properly issue or insure compliance with Certificates of Approval issued in relation to the Refinery; (c) failed to warn Class Members of known hazardous emissions, defects and other failures at the Refinery; (d) specifically failed to warn Class Members that they were, and still are being exposed to high doses of the known carcinogen nickel oxide; (e) failed to obtain, in a timely fashion or at all, adequate information or advice in order to rectify known defects and failures at the Refinery; (f) failed to respond to complaints made by Class Members about the Refinery, its

15

emission of contaminants and other activities; (g) failed to conduct or to cause to be conducted, accurate and complete studies of the impacts of the Refinery, in a timely fashion or at all; and (h) failed to apply or enforce the Environmental Protection Act, R.S.O. 1990, c. E.19.

46.

In addition, HMQ has repeatedly advised members of the Class that emissions from the

Refinery have never posed any risk to human health. HMQ ought to have known that these statements were, in fact, incorrect or inaccurate. Consequently, HMQ is also liable to the Class for losses and damages incurred as a result of innocent and/or negligent misrepresentations.

47.

These misrepresentations include, but are not limited to misrepresentations made in and

through numerous scientific reports prepared by, in conjunction with or for HMQ, that were inadequately or improperly conducted, and that are seriously flawed and misleading as a result.

48.

These misrepresentations also include, but are not limited to misrepresentations intended to

cause Class members to believe that they were being exposed to nickel or other non-carcinogenic substances, and not the carcinogen nickel oxide.

The Regional Municipality of Niagara 49. The Medical Officer of Health for Niagara (the MOH) is an employee of the Region. As a

result, the Region is liable for the acts of the MOH.

16

50.

The MOH has numerous statutory responsibilities to Class Members pursuant to the Health

Protection and Promotion Act and related statutes and regulations. The MOH knew or ought to have known that a lack of sufficient care on the part of the MOH would cause damage to Class Members. As a result, a duty of care was owed by the MOH to the Class.

51.

For many years, the MOH knew or ought to have known of the release of contaminants and

other activities at the Refinery causing widespread damage to Class Members property and health.

52.

However, despite this knowledge, the MOH has failed to take such steps or apply such laws,

regulations and guidelines as its mandate from time to time has required in order to prevent or attempt to prevent the extensive and severe damage caused to Class Members.

53.

The MOH is specifically liable to the Class in negligence in that the MOH has: (a) (b) failed to monitor or investigate the Refinery in a reasonable or prudent manner; failed to warn members of the Class of known hazardous emissions, defects and other failures at the Refinery; (c) specifically failed to warn members of the Class that they were, and still are being exposed to high doses of the known carcinogen nickel oxide; (d) failed to obtain, in a timely fashion or at all, adequate information or advice in order to rectify known defects and failures at the Refinery; (e) failed to respond in a reasonable or prudent manner to complaints made by members of the public about the Refinery, its emission of contaminants and other activities;

17

(f)

failed to conduct or to cause to be conducted, accurate and complete studies of the impacts of the Refinery, in a timely fashion or at all; and

(g)

failed to apply or enforce the Health Protection and Promotion Act, R.S.O. 1990, c. H.7.

54.

In addition, the MOH has repeatedly advised members of the Class that emissions from the

Refinery have never posed any risk to human health. The MOH ought to have known that these statements were, in fact incorrect or inaccurate. Consequently, the MOH is also liable to the Class for losses and damages incurred as a result of innocent and/or negligent misrepresentations.

55.

These misrepresentations include, but are not limited to misrepresentations made in and

through numerous scientific reports prepared by, in conjunction with or for the MOH, that were inadequately or improperly conducted, and that are seriously flawed and misleading as a result.

56.

These misrepresentations also include, but are not limited to misrepresentations intended to

cause Class members to believe that they were being exposed to nickel or other non-carcinogenic substances, and not the carcinogen nickel oxide.

The School Boards 57. The DSBN and the NCDSB both operate schools attended by Class Members. The DSBN

and the NCDSB knew or ought to have known that a lack of sufficient care on the part of the DSBN and NCDSB would cause damage to Class Members. As a result, a duty of care was owed by the

18

DSBN and NCDSB to the Class.

58.

For many years, both the DSBN and the NCDSB knew or ought to have known of the release

of contaminants and other activities at the Refinery which resulted in contamination of the lands on which schools attended by Class Members have been, and still are being operated. As a result of this contamination, Class Members have suffered losses and damages.

59.

Furthermore, both the DSBN and the NCDSB have been specifically aware of test results

relating to these schools, including St. Therese Catholic School and Humberstone Public School, showing highly elevated levels of the carcinogen nickel oxide and other compounds in the soils at, and surrounding these schools.

60.

However, despite this knowledge, the DSBN and the NCDSB have failed to take such steps

or apply such laws, regulations and guidelines as their mandates from time to time have required in order to prevent or attempt to prevent damage to Class Members.

61.

Consequently, the DSBN and the NCDSB are liable to the Class in negligence, in that the

they have: (a) failed to monitor or investigate the effects of the Refinery in a reasonable or prudent manner; (b) failed to warn Class Members of known hazardous emissions, defects and other failures at the Refinery or on school board properties;

19

(c)

failed to obtain, in a timely fashion or at all, adequate information or advice in order to rectify known defects and failures resulting from operations at the Refinery;

(d)

failed to respond in a reasonable or prudent manner to complaints made by Class Members about the Refinery, its emission of contaminants and other activities, and the effects of the Refinery on school properties;

(e)

failed to conduct or to cause to be conducted, accurate and complete studies of the impacts of the Refinery, in a timely fashion or at all; and

(f)

continued to operate certain schools knowing that Class Members were and still are being directly exposed to carcinogenic and toxic hazards and risks.

62.

In addition, the DSBN and the NCDSB have repeatedly advised members of the Class that

emissions from the Refinery have never posed any risk to human health. The DSBN and the NCDSB ought to have known that these statements were in fact incorrect or inaccurate. Consequently, the DSBN and the NCDSB are also liable to the Class for losses and damages incurred as a result of innocent and/or negligent misrepresentations.

63.

In addition, given that there is now conclusive evidence that the Humberstone Public School

and St. Therese Catholic School properties contain extremely elevated levels of the carcinogen nickel oxide and other hazardous compounds, the plaintiff is entitled to an interim, interlocutory and permanent injunction restraining the DSBN and the NCDSB from causing or allowing members of the Class to be exposed to nickel oxide and other toxic substances when they attend or use these two schools.

20

F. PUNITIVE AND EXEMPLARY DAMAGES 64. Inco operated the Refinery for decades with full knowledge of the fact that it was emitting

contaminants, and in particular the carcinogen nickel oxide, and carrying on other activities that would and did cause extensive and severe damage to the property and health of Class Members.

65.

These activities were carried out with reckless, callous and wanton disregard for the health,

safety and pecuniary interests of Class Members. These activities knowingly compromised the health and well being of the Class, solely for commercial reasons of monetary gain.

66.

Furthermore, once it knew, Inco failed to advise the members of the Class of these facts, and

misled the public into believing that the only substance contaminating Port Colborne was nickel or other non-carcinogenic substances, and not the carcinogen nickel oxide.

67.

Consequently, the Class Members are entitled to an award of punitive and exemplary

damages commensurate with the defendant Incos behaviour.

68.

Since at least 1994, HMQ has also had full knowledge of the fact that Inco had emitted

contaminants, and in particular the carcinogen nickel oxide, and had carried on other activities that would and did cause extensive and severe damage to the property and health of Class Members. 69. Once it knew, HMQ also failed to advise the members of the Class of these facts.

21

70.

Since at least 1998, the Region, the City, the NDSB and the NCDSB have also had full

knowledge of the fact that Inco had emitted contaminants, and in particular the carcinogen nickel oxide, and had carried on other activities that would and did cause extensive and severe damage to the property and health of Class Members.

71.

Once they knew, the Region, the City, the NDSB and the NCDSB also failed to advise the

members of the Class of these facts.

72.

Consequently, the Class Members are also entitled to an award of punitive and exemplary

damages against these defendants.

73.

The plaintiff requests that the trial of this matter be held in Welland, Ontario.

DATED:

January 17, 2002 DAOUST VUKOVICH BAKERSIGAL BANKA Barristers & Solicitors 6th Floor 20 Queen Street West Toronto, Ontario M5H 3R3 Eric K. Gillespie LSUC# 37815P Tel #: (416) 597-8578 Fax #: (416) 597-8897 Solicitors for the Plaintiff

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Court File No. 12023/01 WILFRED ROBERT PEARSON - and Plaintiff Proceeding under the Class Proceedings Act, 1992 INCO LIMITED, et al Defendants

ONTARIO SUPERIOR COURT OF JUSTICE Proceeding Commenced at WELLAND

FRESH AS AMENDED STATEMENT OF CLAIM DAOUST, VUKOVICH, SIGAL BANKA Barristers & Solicitors 20 Queen Street West Suite 600 Toronto, Ontario M5H 3R3 ERIC K. GILLESPIE, LSUC No. 37815P Telephone: (416) 597-3578 Facsimile: (416) 597-8897 Solicitors for the Plaintiff BAKER-