COURT FILE NO.: 477/02

DATE: 20040206

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, THEN AND MACKENZIE JJ.

B E T W E E N:

WILFRED ROBERT PEARSON

Eric K. Gillespie and Kirk M. Baert, for the Plaintiff/Appellant

Plaintiff

(Appellant)

• 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

Alan J. Lenczner, Q.C., Larry P. Lowenstein and Joseph A. Starkman for the Defendant/Respondent, Inco Limited

Jack Coop, for the Defendant, Her Majesty the Queen in Right of Ontario

Defendants

(Respondents)

HEARD at Toronto: June 23, 24 and 25, 2003

MACKENZIE J.:

Nature of the Proceedings

1The Appellant/Plaintiff appeals to the Divisional Court under s. 30 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (CPA):

30(1) A party may appeal to the Divisional Court from an order refusing to certify a proceeding as a class proceeding and from an order decertifying a proceeding.

Nordheimer J. made two orders. The first order (July 16, 2002; [2002] O.J. No. 3532), dismissed the Appellant’s/Plaintiff’s motion for certification of the action as a class proceeding under the Class Proceedings Act (CPA) (the Certification Motion Order). The second order (September 9, 2002: [2002] O.J. No. 3522) awarded costs against the Appellant/Plaintiff in favour of the Defendants Inco Limited (Inco) and Her Majesty The Queen in Right of Ontario (HMQ) (the Costs Order). The Appellant/Plaintiff appeals both orders.

Introduction

2The Appellant/Plaintiff seeks to set aside the dismissal of the motion for certification and, in its place, seeks an order certifying the action as a class proceeding, appointing the Appellant/Plaintiff as representative Plaintiff for the class and declaring the common issues to be certified.

3At the hearing of the appeal, the Appellant/Plaintiff refined his prayer for relief by requesting that the order dismissing the certification motion be set aside and that the action be certified as a class proceeding and remitted to Mr. Justice Winkler with liberty for him, or his designate, to make or require such amendments to the litigation plan as may be indicated in light of the Appellant’s/Plaintiff’s abandonment of some of its claims against the defendants. In this latter regard, it will be noted the most significant of the claims abandoned relate to health impairment or risk of health impairment for the members of the proposed class.

4The Appellant/Plaintiff in his appeal of the Costs Order contends that the award of costs made against him, following his unsuccessful certification motion, is not supported by the principles of law respecting costs arising from the provisions of the CPA, in particular, s. 31(1) thereof. The Appellant/Plaintiff submits that the certification motion judge erred in law: (a) in his treatment of s. 31(1) of CPA in conjunction with the more general provisions respecting costs set out in s.131 of the Courts of Justice Act and, (b) in his treatment of the case law relating to the discretion of the courts in disposing of costs. The Appellant/Plaintiff seeks an order relieving him of any responsibility for costs to the Defendants, regardless of the disposition of this appeal.

Background

5The events giving rise to the action are fully set out in the reasons for judgment of Nordheimer J., dated July 16, 2002. However, a brief overview of the salient facts is appropriate to put the appeals in context.

6The defendant Inco operated a refinery in the Town of Port Colborne, Ontario. This refinery was primarily focused on processing nickel/ore. The refinery operated from about 1919 or 1920 to approximately 1984. In the course of the nickel/ore processing operations, substances were emitted into the environment of Port Colborne and the surrounding area. It is not in issue that these emissions have contaminated part of the environment, namely, the topsoil. However, this acknowledgment cannot be construed as an admission of liability. There remain issues of causation of alleged harm as well as any negligence by Inco in its nickel/ore processing operation and negligence by HMQ in the discharge of her statutory oversight obligation.

7In the proposed class proceeding, the Appellant/Plaintiff claims compensatory and punitive damages for all members of the class. The Appellant’s/Plaintiff’s fresh amended statement of claim alleges that the emissions causing the soil contamination are toxic substances causing health impairment or risk of health impairment, economic loss arising from the loss of use and enjoyment of, and the devaluation of, the real property of class members situate within the area of contamination. As noted above, the claims against Inco are based on its role as a polluter whereas the claims against HMQ are based on her role as a statutory regulator which has negligently performed its oversight duties.

8Nordheimer J. dismissed the Appellant’s/Plaintiff’s motion for certification as a class proceeding under the CPA. He found that although a reasonable, i.e., colourable, cause of action existed against Inco and HMQ, the Appellant/Plaintiff failed to satisfy the requirements for certification under s. 5(1) of the CPA.

9Before turning to the analysis of the certification motion order and the reasons therefor, it should be noted that the case put forward on the hearing of the appeal is substantially different than the certification motion argued before Nordheimer J. As previously indicated, the Appellant/Plaintiff, on appeal, has significantly altered the claims on behalf of the proposed class by deleting all allegations respecting health hazards. Thus, the Appellant/Plaintiff now limits the claims for damages to the devaluation of real property arising from contamination of the soil as a result of Inco’s nickel/ore processing operation.

10We are faced with a situation where the Appellant/Plaintiff is not seeking, in the strict sense, to appeal the refusal of a certification motion order, because the Appellant/Plaintiff is presenting to this court a more limited case for certification than was put before Nordheimer J. The Appellant/Plaintiff, in effect, is asking this court to review the reasons of Nordheimer J., given in the context of the original claims of health impairment/hazards and economic loss occasioned to property, in the limited context of economic loss occasioned to real property.

11The Defendants object to the Appellant’s/Plaintiff’s stance on this appeal on the basis that the Appellant/Plaintiff is, in effect, recasting the theory of liability in the proposed class proceeding and that such a change in the theory of liability unfairly prejudices the Defendants. The nature of this prejudice is that Inco and the other defendants were never put on notice that the Appellant’s/Plaintiff’s new theory of nickel contamination causing real property damage was being proposed and accordingly, the Defendants had no reason to develop additional expert evidence to respond to such allegations.

12In response, the Appellant/Plaintiff submits that it is open to a certification motion judge to modify the proposed class or the common issues proposed by a plaintiff. The Appellant/Plaintiff submits that the courts have modified or deleted classes, causes of action and heads of damages as a case progressed, without impairing the status of the action as a certified class proceeding: see Lunes v. The Mutual Life Assurance Company of Canada, 2003 48334 (ON CA), [2003] O.J. No.1160 (O.C.A.) and Grumley v. B.C. (2001), 2001 SCC 69, 205 D.L.R. (4^th) 39 (S.C.C.).

13We are not persuaded that the narrowing of the Appellant’s/Plaintiff’s claims results in the unfair prejudice described by the Defendants. We shall dispose of the appeal having regard to the reasons for judgment of Nordheimer J., dated July 16, 2002, as applied to the narrowed claims for relief.

Analysis

14The criteria for certifying a class proceeding on motion are set out in s. 5(1) of the CPA, as follows:

5(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,

(a) the pleadings or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative Appellant/Plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative, Appellant/Plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

Cause of Action Requirement

15Nordheimer J. found that four (4) causes of action were disclosed in the pleadings and that most of the thirteen (13) proposed common issues were common to all members of the proposed class.

Identifiable Class Requirement

16Nordheimer J. dismissed the certification motion on the basis that the proposed class definition was at the same time overly inclusive and unduly limiting. In his words:

…the class should not be defined in a manner that includes individuals with claims while at the same time arbitrarily excluding others who have the same claims. In this case, the class is defined principally by geographic boundaries. Those geographic boundaries, on the [Appellant’s]/Plaintiff’s own evidence, include some individuals who, it would appear, have no claim and excludes other individuals who have identical claims to persons who are included (see para. [100] of reasons for decision).

17Nordheimer J. also found that the temporal component of the proposed class definition was also temporary. He notes that the definition would appear to include anyone who lived in Port Colborne at any time since March, 1995 and would exclude anyone who has not lived there in that time frame, regardless of: what harm he/she may have suffered, when they suffered it and when they became aware of having suffered it. For example, a long-time resident who lived in Port Colborne in 1995, but who moved away in 1996 and asserts injuries sustained from 1970, would apparently be included in the class, but a Port Colborne resident who left in 1994 and who asserts injuries dating from 1990 is excluded from the class. (ibid.: para. [101])

18In the result, Nordheimer J. found that the proposed class definition was arbitrary both in its terms and its effects and failed to constitute a proper identifiable class.

Common Issues Requirement

19In addressing the common issues requirement, Nordheimer J. noted that the question was whether the resolution of proposed common issues efficiently advances the overall determination of liability so as to justify the certification of the action as a class proceeding. An important consideration in this regard is whether any individual issues that will remain for determination after the common issues are resolved are limited or whether what remains to be determined is sufficiently extensive that the determination of the common issues essentially marks the commencement, as opposed to the completion, of the liability inquiry. (ibid.: para. [104])

Preferable Procedure Requirement

20Although many of the proposed common issues would be issues common to each class member’s claim and the determination of these issues in favour of the representative plaintiff would create success and benefit for each member of the class, the motions judge nonetheless found that difficulties remained with the proposed common issues under the preferable procedure requirement. In dealing with that requirement, Nordheimer J. made the following observation:

While s. 5(1)(d) of the Act [CPA] makes it clear that preferability is to be determined with respect only to the resolution of the common issues and not the claim as a whole, it is nonetheless true that the issue of preferability must be considered in the context of the case as a whole. As Chief Justice McLachlin said in Hollick v. Toronto (City), supra, at para. 28:

In my view, it would be impossible to determine whether the class action is preferable in the sense of being a ‘fair, efficient and manageable method of advancing the claim’ without looking at the common issues in their context.

(ibid.: para. [115])

21Nordheimer J. found that answers to the common issues would be of no more than theoretical interest until the particular factual circumstances of each individual claimant were examined. He noted that before liability could be imposed on Inco for any claim, a causal link between the alleged claim and Inco’s conduct would have to be established:

As the record before me demonstrates, the process of determining whether a causal link exists for any given class member with respect to any given allegation of harm is extensive and very much individualized. Given the wide variety of harm alleged and the size of the proposed class, this class proceeding will quickly become unmanageable because it will inevitably disintegrate into the need for thousands of individual trials with potentially tens, if not hundreds, of thousands of individual issues to be resolved. Consequent on that reality will be the need for examinations for discovery in each and every one of the 20,000 members of the proposed class. (ibid.: para.[119])

22In the context of this appeal, now that the claims have been reduced to real property devaluation, the members of the proposed class have been reduced from approximately 20,000 to 8,000. In our view, this reduction in members of the proposed class does not in any way detract from the thrust of the quoted observations made by Nordheimer J. In essence, the claims of individual members within the class would give rise to individualized defences, particularly in reference to the application of limitation periods. The certification motion judge noted that even though the presence of individual issues is not fatal to certification, when such individual issues overwhelm the common issues, the class action concept becomes unmanageable. As Nordheimer J. pointed out, here, the resolution of the common issues would not determine the liability issue and leave only the aggregate assessment of damages or monetary relief for the claimants. (ibid.: paras. [128] and [129])

23In dealing with judicial economy and access to justice as goals of the CPA being furthered by the proposed class proceeding, Nordheimer J. observed that s.24 of the CPA, which gives the courts authority to perform an aggregate assessment of damages, is only available where there are no questions of law or fact left to be determined, save as they relate to the relief to be granted. He then stated:

Section 24, therefore, does not provide a bridge to overcome obstacles revealed on the liability side of the question which is the principal concern on the certification motion. (ibid.: para. [129])

24In dealing with the objective of access to justice, Nordheimer J. found that the claims of some class members that were within the Small Claims Court monetary jurisdiction were being redressed by the Community Based Risk Assessment body (CBRA) operating under the overview of the Ministry of the Environment, all being subject to scrutiny by the Environmental Review Tribunal. The certification motion judge also described a group within the proposed class whose claims were significantly higher (up to $250,000.00 plus agricultural claims of up to $500,000.00) and that these persons would be in a position to pursue their own claims, either individually or on a joint basis. Nordheimer J. did recognize that the CBRA’s limitation of not currently being in a position to provide for monetary compensation did not preclude its consideration as part of the available alternate procedures in the overall consideration of whether a class proceeding is the preferable procedure:

The existence of the CBRA to address the remedial aspects of the problems (which may well redress the smaller claims), along with the ability to have joint or more substantial claims, and/or to have a test case, coupled with a certainty that individual trials will inevitably have to be conducted even if a common issues trial were held, strongly suggest that a class proceeding does not constitute the preferable procedure. (ibid..: paras. [131])

25In dealing with the objective of behaviour modification, Nordheimer J. found the CBRA process under the scrutiny of the Ministry of Environment and the Environmental Review Tribunal was in place at the commencement of the action. Accordingly, he concluded that the goal or objective of behaviour modification had been achieved.

Standard of Review

26The standard of review for appeals from a judge’s order is whether or not the decision of the judge was “clearly wrong” with respect to findings of fact. The judge must have acted on or disregarded or misinterpreted material evidence. (See: Stein v. Kathy K. (The Ship), 1975 146 (SCC), [1976] 2 S.C.R. 802). As to the law, the judge must have acted on a wrong or inappropriate principle. On law, the judge must be correct: Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31 [8] and [10].

27The standard of appellate review in certification class proceedings has been the subject of comment by the Court of Appeal for Ontario in Anderson v. Wilson, (1999), 1999 3753 (ON CA), 44 O.R. (3d) 673, 677 (leave to appeal to S.C.C. dismissed).

This was the first time this court has considered the certification of a class action and I am mindful the deference which is due to the Superior Court Judges who have developed expertise in this very sophisticated area of practice. The Act [CPA] provides for flexibility and adjustment at all stages of the proceeding and any intervention by this court at the certification level should be restricted to matters of general principle.

[OCA emphasis].

28Accordingly, the question to be addressed on this appeal is whether Nordheimer J.’s dismissal of the certification motion and his award of costs against the Appellant/Plaintiff constitute reversal error based on findings of facts that are “clearly wrong” and/or on the application of inappropriate legal principles.

Discussion

29As a preliminary matter, it must be recalled that the onus or evidentiary burden is on the Appellant/Plaintiff to demonstrate that the prerequisites to certification have been satisfied.

30The Appellant/Plaintiff submits that Nordheimer J. erred by finding there was no identifiable class. Counsel for the Appellant/Plaintiff submitted that each property owner is entitled to bring a claim requiring Inco to return the owner’s real property to its original state before the contamination and that restricting membership as of March, 1995 was under-inclusive in that it limited the claims of earlier residents in the Port Colborne area. In this latter regard, the Appellant/Plaintiff submits that March, 1995 was the date from which damages occurred. While acknowledging this definition could be expanded to include all owners with more than 43 ppm nickel on their lands (a MOE guideline), counsel for the Appellant/Plaintiff submitted that there are rational reasons for limiting the proposed class. The Appellant/Plaintiff submits that an appropriate balance was struck between inclusion and unworkability.

31This Court rejects the Appellant/Plaintiff’s argument in this regard. As was pointed out by counsel for HMQ in his Factum:

…the grounding of a class definition upon a MOE guideline number for background levels of nickel is itself irrational and arbitrary. The … 43 parts per million for nickel was never intended to trigger cleanups or be a number above which damages presumed to have occurred. It is merely the identification in the upper range of background levels of nickel across the province. …the class definition is based upon a completely false and unsubstantiated assumption, namely, that any property having even trace levels of nickel or levels just slightly above background (43-100 ppm …) have been effected in property value and/or will require some remediation. As noted above, no such evidence exists. (See para. [66] p.18.)

32In dealing with common issues, the Appellant/Plaintiff contends that the proposed common issues can be redrafted to take into account that the issue now relates to real property damage. The Appellant/Plaintiff contends that in determining these issues in favour of the class will establish both causation and liability for the entire class.

33We reject this position as did Nordheimer J. In the broader context of the motion before him respecting health issues as well as real property devaluation issues. This approach fails to take into account the apparent individuality of both the claims and defences relating to the impairment of real property value. It is no answer for the Appellant/Plaintiff to contend that quantification of damage to property or losses in property value is an issue best left for trial.

34In Chadha v. Bayer (2001), 2001 28369 (ON SCDC), 54 O.R. (3d) 520 (Div. Ct.): affirmed: (2003), 2003 35843 (ON CA), 63 O.R. (3d) 22 (O.C.A.); leave to appeal to S.C.C. dismissed: (2003), 65 O.R. (3d) xvii, this court stated that the certification motion judge must decide, based on the evidence adduced, what method of proof could be used to establish loss on a class-wide basis. Here, Appellant/Plaintiff has not put forward any methodology appropriate in the circumstances to establish loss on a class wide basis. It is not open to the Appellant/Plaintiff on a certification motion to presume findings on causation with resulting liability. As Nordheimer J. found, and we agree, courts must not “certify now and worry later”: (See para.[148-149] of reasons of Nordheimer J.)

35We must now relate the foregoing analysis of Nordheimer J.’s disposition of the certification motion before him to the narrowed claims that have been put forward on this appeal.

36We find no error arising from the findings of fact or the application of the appropriate legal principles under s. 5(1) of the CPA in the reasons for judgment of Nordheimer J., as the same apply to the narrowed relief claimed by the Appellant/Plaintiff in this appeal. Despite the able argument of counsel for Inco and HMQ that the narrowed claim for relief discloses no cause of action, we are not prepared to so hold on the record before us. However, on the criteria dealing with the class definition, regarding the common issues being overwhelmed by the individual claims and defences, and considering the preferable procedure requirement and advancing the closing objectives of the CPA, we find no reversible error in Nordheimer J.’s reasons as they apply to the narrowed claims put before this court.

37In the result, we dismiss the Appellant’s/Plaintiff’s appeal from the order refusing a certification motion order.

38We turn now to the Appellant’s/Plaintiff’s appeal as to costs.

39In his endorsement, dated September 9, 2002, Nordheimer J. made the following costs award in favour of the four defendants who appeared on the certification motion:

(1) Inco - $85,000.00

(2) HMQ - $45,000.00

(3) Regional Municipality of Niagara - $27,255.12

(4) Corporation of the City of Port Colborne - $27,077.02

Total costs awarded against the Appellant/Plaintiff were $184,332.14.

40As noted above, the Appellant/Plaintiff appeals the costs order on the grounds that Nordheimer J. erred in not giving effect to the provisions of s. 31(1) of the CPA, submitting that the approach to costs in class proceedings should be different than the principles applicable to the disposition of costs in non-class proceedings. In the submission of the Appellant/Plaintiff, the rationale for differential treatment lies in the concept of access to justice: the awarding of substantial costs orders against unsuccessful representative plaintiffs, who otherwise acted reasonably in the prosecution of their claims, has a chilling effect and is not amicable to the concept of access to justice. In his costs order, Nordheimer J. addressed these concerns in the following words:

….in the final analysis, the court should consider all relevant factors in the exercise of its discretion whether or not to award costs. In that regard, the normal rule that costs will follow the event should apply in class proceedings unless there are cogent reasons to depart from it (para. [4]).

….I accept that, in one light, this case can be seen as involving matters of interest to the public. That, however, is not the same thing as being a matter of broad public importance such as would justify a decision not to award costs. In this regard, I respectfully adopt Mr. Justice Cumming’s observation in Williams v. Mutual Life Insurance Co. of Canada, 2001 62796 (ON SC), [2001] O.J. No.445 (S.C.J.) at para. 24:

There is, of course, a public interest component in respect of any litigation. However, in my view, to be a ‘matter of public interest’, the class action must have some specific, special significance for, or interest to, the community at large beyond members of the proposed class. (ibid.: para.[9])

Nordheimer J. awarded costs against the Appellant/Plaintiff in the amounts noted in para. [39], above.

41Counsel for Inco and HMQ respond and submit that Nordheimer J. did not err in principle in his analysis of the correlation between s. 31(1) of the CPA and s.131 of the Courts of Justice Act respecting costs. In this regard, counsel submit that the provisions of s. 31(1) of the CPA indicate that in exercising its discretion with respect to costs under the Courts of Justice Act, “the courts may consider whether the class proceeding was a test case, raised a novel point of law or involved a matter of public interest”. The Defendants submit that s. 31(1) of the CPA does not alter the jurisdiction and principles under s.131 of the Courts of Justice Act but rather introduces the three factors in s. 31(1) of the CPA into the “mix” for analysis in awarding costs in class proceeding matters.

42Subsequent to the hearing of the appeals, counsel submitted Shaw v. B.C.E. Inc et al., [2003] O.J. No. 2695 (S.C.J.) per Farley J., wherein he dismissed a certification motion and disposed of costs and Joanisse v. Barker, [2003] O.J. No. 4081, where Cullity J. dismissed a certification motion and dealt with the question of costs.

43In Joanisse v. Barker, Cullity J. addressed the interrelationship of s. 31(1) of the CPA and s.131 of the Courts of Justice Act.

44In Joanisse, Cullity J. stated that s. 31(1) of the CPA does not replace the discretion conferred by s.131 (1) of the Courts of Justice Act and held that the factors that operate in the exercise of discretion under s.131 of the Courts of Justice Act are also relevant in class proceedings.

45Cullity J. refers, in part, to the costs disposition that is the subject of this appeal and comments that in Pearson none of the three factors under s. 31(1) of the CPA was found to be present.

46Cullity J. refers to other authorities, all Ontario cases either in this court or in the Court of Appeal for Ontario, wherein a successful party in a class proceeding has been denied costs only where the three factors set out in s. 31(1) of the CPA were found to be present.

47Cullity J. concludes his analysis as follows:

A proper exercise of the discretion with respect to costs must, of course, depend upon the facts of each case but I believe the weight of authority is in favour of the approach that permits significance to be attributed to the existence as well as the terms of s.31 (1). I note that, in each of Gariepy and Pearson, it was found that none of the three factors mentioned in the section was present. (See para. [11])

48In Joanisse, the representative plaintiff was unsuccessful in obtaining certification to represent a class of persons who were involuntary patients at a psychiatric facility. In that case, Cullity J. found there was a strong public interest in ensuring that the members of the proposed class had access to justice through a class proceeding. In the circumstances, he exercised his discretion, departed from the usual practice of costs following the event and made no order for costs.

49In this case, Nordheimer J. addressed the issue of public interest, being one of the three factors set out in s. 31(1) of the CPA, referred to the dictum of Cumming J. in Williams, supra, on that topic. Nordheimer J. also addressed the question of whether the matter before him was a novel point of law or a test case. He considered both those factors and the case law and concluded that this case did not engage either factor so as to deny costs, in the proper exercise of his discretion, to the successful Defendants.

50In our view, there was no reversible error in the reasoning or in the conclusions reached by Nordheimer J. in his disposition of costs. In the result, the appeal as to the costs order of September 9, 2002 is dismissed.

51If the parties are unable to agree as to costs of the appeal, counsel may file written submissions, not to exceed five pages, exclusive of supporting materials, according to the following schedule:

(1) by Inco and HMQ within 21 days of the release of these reasons,

(2) responding submissions by the Appellant/Plaintiff within 10 days of receipt of the submissions of Inco and HMQ, and

(3) reply, if any, by Inco and HMQ within 10 days of receipt of the Appellant’s/Plaintiff’s responding submissions.

MacKenzie J.

O’Driscoll J.

Then J.

Released:

COURT FILE NO.: 477/02

DATE: 20040206

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’Driscoll, Then and MacKenzie JJ.

B E T W E E N:

WILFRED ROBERT PEARSON

Appellant/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