BIANCA BELL
<Contributor>
Osgoode Hall was well represented at this year’s Willms and Shier Environmental Law Moot held at the Ontario Court of Appeal on March 9th. The Willms and Shier Moot is Canada’s first nationwide moot court competition devoted to environmental law. The two Osgoode teams were comprised of Luke Johnston & Jesse-Ross Cohen, and Preston MacNeil & Matt Giovinazzo, with Areta Lloyd providing expert and invaluable research to both. In typical Osgoode style, success was had: the teams came in 2nd and 4th place respectively, and took 3 of the 4 distinguished oralist awards handed out during the evening’s banquet ceremony (Preston, Luke, and Jesse). Luke also won the award for top speaker in the final round.
Judges throughout the day included former counsel for Inco, environmental lawyers, and government officials. The highlight, however, was the final panel, which included the Honourable Justices Marshall Rothstein of the Supreme Court of Canada, David W. Stratas of the Federal Court of Appeal, Kathryn N. Feldman of the Ontario Court of Appeal, and Katherine M. van Rensberg of the Ontario Superior Court of Justice.
Participants mooted an appeal of the Ontario Court of Appeal’s decision on Smith v. Inco Ltd. at the fictitious Supreme Environmental Moot Court of Canada. The Court granted leave to appeal on the following questions:
1. Did the Court of Appeal err in holding that the Appellants did not make out a claim under the existing causes of action pleaded?
2. Should the Supreme Environmental Moot Court of Canada recognize a new cause of action for environmental claims or are existing causes of action adequate?
The first ground of appeal raised questions specific to this class action, as well as broader issues applicable to contaminated land disputes across Canada. The case law on these broader issues is unsettled and, in certain respects, contradictory. The crux of the case rested on whether the nickel oxide particles left by Inco on the claimants’ land, which were not injurious to human health, could truly be said to be “damage” – as required by the physical damage branch of the tort of private nuisance and the doctrine of Rylands v Fletcher. The second ground of appeal asked the contestants to stretch their imaginations, leading to some very thoughtful and innovative submissions.
After watching so many of their Osgoode mooting compatriots enjoy significant success in the preceding weeks, the environmental moot team was anxious to succeed. They are glad to have done their school proud.