Edited by
Luke Dineley 
On March 19, 2012, the Superior Court of Quebec granted to Mr. François Deraspe ("Deraspe") an authorization to institute a potentially huge class action against Canadian Zinc Electrolytic Ltd. ("Zinc"), a zinc refinery located in Salaberry-de-Valleyfield, Quebec. It was Deraspe' second try – his first motion had been denied in 2009 by the Court of Appeal.
The motion was introduced following events that took place on the evening of August 9, 2004. It is alleged that a mechanical failure at Zinc caused the release of 5 tons of sulphur trioxide which, in the air, formed a plume that travelled eastwards, through neighbouring cities, up to the western portion of the island of Montreal, causing, in those exposed along the way, eye and throat irritation, respiratory difficulties, headaches, asthma and other health problems, of a temporary nature.
Deraspe's first motion to institute a class action had been denied based, in part, upon the finding, at the Superior Court level, that the damages suffered by each individual would vary and that the composition of the plume likely varied along its trajectory and that, for these two reasons, the group, as proposed, lacked in commonality. The Court of Appeal confirmed the Superior Court's judge decision on the ground that the description of the proposed group was too vague in that it lacked geographical and temporal references. The Court further found that that the Superior Court judge's conclusion regarding the fact that individual issues would predominate over common issues was not affected by an overriding error.
In its second try, successful so far, Deraspe introduced both geographical and temporal limitations in the group's description, naming the various municipalities and streets allegedly affected and giving, for each such geographical area, the time at which the plume allegedly reached the affected area. This was based on a report prepared by Environment Canada following the events and released after the Court of Appeal hearing on the first motion. Deraspe also limited the group to persons having experienced physical ailments simultaneously with their exposure to the plume.
Based on the new group description, the Superior Court found that there were questions that would benefit from a common determination, such as whether Zinc has been negligent, the trajectory of the plume, the evolution of its composition, the general nature of ailments that may be related to an exposure to the plume and, finally, whether exemplary and punitive damages should be granted. The fact that causation may have to be determined, at least in part, on an individual basis was not sufficient to deny the motion.
While environmental class actions in Quebec are often based on neighbourhood disturbances (a no-fault regime, as decided by the Supreme Court of Canada in St. Lawrence Cement Inc. v. Barrette), Deraspe chose to base this claim on general civil liability principles – fault will have to be proven. One of the obstacles that Deraspe may have to overcome will be the very conclusions of Environment Canada with regard to the alleged events (Environment Canada did not impose fines or lay charges against Zinc for the alleged events): portions of the Environment Canada model, quoted in the Superior Court judgement, appear to conclude that physical ailments that may have been suffered by individuals would have been minor and temporary in nature.
Deraspe also claims punitive damages against Zinc, alleging that by failing to advise the authorities and by deliberately releasing false information concerning the nature of the plume, Zinc prevented people from taking simple measures to protect their health against the potential effects of the discharge.
Should the judgement not be appealed, the class action would be allowed to proceed. However, this judgement should not be interpreted as any indication as to the potential success or failure of the case. It would be expected that Zinc will appeal the judgement, given the potential monetary impact of the class action, estimated, by certain observers, as up to $900 million.
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