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McKerrow residents launch multi-million dollar law suit against Shell and other parties

28 Plaintiffs seek $4 million in damages

Posted By Rosalind Raby, Midnorth Monitor

A number of McKerrow residents have launched a multi-million dollar lawsuit against several parties in what they cite as a loss of property values due to water contamination.

Twenty-eight plaintiffs have hired Eric Gillespie of the Toronto law firm Cunningham & Gillespie LLP in Toronto to bring their case before the courts.

The class action suit names Shell Canada Products, David Campbell, Lauri and Shirley Myllynen and the estate of Leon Miron as the defendents in the case.

The 28 had met with Gillespie earlier this year and proceeded with the lawsuit on July 17, 2008. However, none of the defendents were served until Monday, November 24.

The plaintiffs are asking for at least $4 million; compensatory damages of $3 million, punitive and exemplary damages of $1 million, around $150,000 each.

Additionally, they are suing for the interest and taxes on the amount and any ‘further relief’ the court might deem appropriate, if they win the case. That could mean more money if the court rules in their favour.

The basis of the lawsuit is that the defendents are; “liable in negiligence, nuisance, trespass and pursuant to the doctrine of strict liability cited in Rylands versus Fletcher, a court case where a landowner was found liable for damages to another.”

Rylands v. Fletcher (1868)[1] LR 3 HL 330 is a landmark English legal case in which the Court of the Exchequer Chamber first applied the doctrine of strict liability for inherently dangerous activities (on appeal by Rylands, the House of Lords confirmed the previous judgment, but restricted the rule to a non-natural use of the land).

It established a rule related to, though arguably distinct from, the tort of nuisance, the tort of cattle trespass, and the tort of escape of a domesticated animal, which was known in science circles to have an inclination to harm.

The so-called Rylands rule has, in Australia, become absorbed into the ordinary law of negligence with all the requirements of duty of care, tests of reasonableness of care, foreseeability, proximity, and considerations of contributory negligence.

The dispute in Rylands concerned escape of water onto neighbouring land. Later cases in which the Rylands test was applied involved the escape of all manner of wastes and materials, extending outwards to a broad range of inherently dangerous activities considered essential to modern life.

The application and interpretation of the Rylands rule has been an important step in the development of legal policy relating to modern industry, risk allocation, liability and negligence, and is recognized in most countries where the British legal system is used as the basis of law.

Other basis of law cited in the law suit include the provisions of the Negligence Act, R.S.O. 1990, Planning Act, R.S.O. and Courts of Justice Act, R.S.O.

The plaintiffs further claim that as a result of historic activities associated with the former retail fuel outlet, located on Highway 17, their soil and groundwater have been contaminated with benzene and other toxins. The plaintiffs further claim that their homes are now uninhabitable and/or un-saleable.

The plaintiffs are all owner and/or residents of homes in McKerrow, Baldwin Township.

They include Omer Gagne, Maria Bouwmeester, Jennifer Gagne, Paul Ainslie, Lisa Gagne, Paul Bousquet, Jocelyne Bousquet, Roger Bouillion, Anita Bouillion, Delphis Daoust, Helen Vilmor, Dwayne Batusic, Cindy Batusic, Denis Squibb, Nora Gillespie, John Gagne, Lizette Gagne, David Fairburn, Jill Fairburn, Gail Daoust, Sandy Wright, Rose Wright, Nanette Boucher, Gerry Boucher, Gina Shelswell and Lloyd Shelswell.

Gillespie informed the Mid-North Monitor that he could not make a statement to media until he discussed it with the plaintiffs, but as of press-time, there had been no further communication from him.

The Myllynens are the present owners of the site, although they no longer operate their business from that location. They left last month when the Ministry of Environment (MoE) moved in to clean up the site, of which the bill is to be sent to the couple once completed.

Lauri provided the copy of the lawsuit to the Mid-North Monitor.

“I don’t understand my neighbours,” he said. ‘I’m in the same boat they are. I couldn’t drink the water and it destroyed by bait business.”

The old analogy, you can’t get blood from a stone, is an apt one, he believes.

“I can’t do anything about it. I have sought legal advice and we will do what our legal counsel thinks best, but there isn’t really anything that can be done at this point. I’m living in a trailer and have had to relocate my business. I lost several months of business because of all this. It’s very upsetting for me and my wife.”

David Campbell is the former owner of the site. He has a private mortgage with the Myllynens, but Lauri said he and his wife have not made any mortgage payments to Campbell in nearly a year (when the Monitor broke the story about the contamination of the soil and the MoE’s findings).

Campbell said he had no comment to make about the lawsuit or the lack of mortgage payments, except to say that he has also hired legal counsel and will deal with the case through his lawyer.

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