Reasons for Endorsement

Court and Counsel

Court File No.: CV-21-666020 & CV-21-664805
Released: 2025-07-20
Superior Court of Justice – Ontario
Associate Justice McGraw

Actions:
Vale Canada Limited v. Royal & Sun Alliance Insurance Co. of Canada
Vale Canada Limited v. Travelers Casualty & Surety Company

Court File Numbers: CV-21-666020; CV-21-664805
Motion Heard: June 12 and 18, 2025
Written Submissions Filed: June 26, 2025
Reasons Released: July 20, 2025

Counsel:
A. Winton, H. Afarian, D. Ong, D. Endemann, N. Olesen and G. Chan for Vale Canada Limited and the other Vale Plaintiffs ("Vale")
R. Mclauchlan, B. Stork, S. Frankland and G. Karayannides for U.S. Fire Insurance Company and The North River Insurance Company ("USF")
D. Stewart, S. Stewart, A.J. Freedman, D. Dutt, N. Rabinovitch and H. Wang for Travelers Casualty & Surety Company ("Travelers")

I. Background

[1] This is the continuation of the refusals motions brought by the Defendants USF and Travelers (the "Insurers") which initially proceeded before me on December 18, 2024 (Reasons For Endorsement dated January 9, 2025 (Vale Canada Limited v. Royal & Sun Alliance Insurance Co. of Canada, 2025 ONSC 129) (the "Reasons")).

[2] This is significant insurance litigation in which Vale seeks declarations of coverage and damages under policies purchased between 1958 and 1985 for environmental claims dating back over 40 years related to operations at 26 mining sites in Ontario, Manitoba, Wales, Japan, Indonesia and the United Kingdom (the "Sites"). Specifically, Vale seeks coverage for any liabilities arising from damage to third party (primarily Crown) property caused by actual or alleged groundwater and surface water contamination due to acid rock drainage and metal leeching. Vale is the successor in interest to Inco Ltd. ("Inco") which operated the Sites during the years at issue.

[3] Based on information disclosed in parallel U.S. proceedings in New York, it has been estimated that, subject to quantification including adjustments for settlements and confirmation in expert reports, Vale’s claims in these proceedings may approach or exceed $2 billion. By Endorsement dated June 10, 2024, Myers J., who is case managing these proceedings, ordered that all examinations, re-examinations and refusals be completed by January 31, 2025 and scheduled a 10-week trial starting November 13, 2025.Mediation has since been scheduled for September 15-16 and the pre-trial for October 6.

[4] Due to the age, amount, size and complexity of Vale’s claims, documentary discovery and examinations for discovery have resulted in the production of a voluminous amount of documents and information necessitating significant efforts by the parties and their counsel. Vale has produced approximately 300,000 documents (over 3 million pages). Using a hybrid approach, the Insurers asked approximately 15,000 questions in writing and 3,000 during the examination of Vale’s representative Lisa Lanteigne. This resulted in approximately 10,000 refusals. Dealing with this volume has required ongoing exchanges of charts, answers, positions and productions and significant case management. Since September 1, 2022 there have been 19 case conferences before me to speak to productions, site visits, examinations for discovery, and undertakings and refusals. The number of defendants has been significantly reduced as Vale has settled with all defendant insurers except the Insurers. As a result of the ongoing efforts of counsel and case management, a significant number of refusals have been resolved, withdrawn and/or narrowed.

[5] Vale’s refusals motion proceeded before me on November 1, 2024. The Insurers’ motions originally proceeded before me on December 18, 2024. I released an Interim Endorsement dated December 20, 2024 (the "Interim Endorsement") and the Reasons on January 9, 2025. Counsel made submissions with respect to the refusals in the chart which the parties and the court had been reviewing and discussing on an ongoing basis. This chart was referred to by the Insurers as an "Exemplar Chart" as substantially all of the questions/refusals were representative of questions which applied all Sites (the "Exemplar Chart"). There were initially approximately 2,000 refusals in the Exemplar Chart, however, with ongoing resolutions about 1,000 remained by the time of the December 18 attendance. A summary of the status, agreements and where necessary, my directions and orders, is set out in the Reasons.

[6] However, there is a much larger group of refusals/questions on the Insurers’ motions which were not set out in the Exemplar Chart as they only applied to one Site or applied to some but not all Sites. On December 10, 2024, the Insurers delivered what they called a "bridge chart" to Vale that identified which questions/refusals applied to which specific Sites or, as termed by the Insurers, which "flow through" to which Sites (the "Bridge Chart"). Vale claimed that the Bridge Chart would add approximately 8,000 questions to the Insurers’ motions. The Insurers did not agree with this estimate given overlapping questions.

[7] As set out in the Interim Endorsement and the Reasons, Vale submitted that it should not have to answer or address the additional 8,000 questions identified in the Bridge Chart, that the "flow through" questions were disproportionate requiring significant time and expense and were delivered too late, would disrupt the timetable and threaten the trial date. Vale submitted that it should only have to address questions that apply to all Sites in the Exemplar Chart except to the extent that it had already agreed to answer Site specific questions. The Insurers argued that the questions in the Bridge Chart had always been part of their motions, were necessary for proper discovery, and that I had the jurisdiction to order Vale to answer them and to order that Vale's answers to Exemplar Chart questions bound them to Bridge Chart questions. Vale took the position that any disputes regarding the Bridge Chart must be spoken to before Myers J.

[8] Given the potential material impact on the timetable ordered by Myers J., particularly the fixed 10-week trial, I concluded that I did not have jurisdiction to order that my directions and the parties’ agreements with respect to in the Exemplar Chart would also bind Vale on "flow through" refusals in the Bridge Chart. I also held that it would not be appropriate to make any orders or directions as the Bridge Chart was delivered only 8 days before the December 18 attendance, therefore, Vale and the court did not have an opportunity to review it properly and the additional questions had not been subject to case management and the parties’ ongoing exchanges of answers and positions like those in the Exemplar Chart and on Vale’s motion.

[9] Counsel attended before Myers J. to speak to the 8,000 refusals and the timetable. By Endorsement dated December 25, 2024, Myers J. declined to make any orders or directions with respect to the Bridge Chart but expanded this Court’s jurisdiction to amend the timetable except the fixed trial date. I convened case conferences on January 20, May 1 and May 28 while counsel continued their efforts to exchange answers and positions and resolve as many refusals as possible.

II. The Law and the Remaining Refusals

[10] Rule 31.06 provides that a person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action. Rule 1.04(1) further provides that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Rule 1.04(1.1) requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved in the proceeding and Rule 29.2.03 sets out the proportionality factors which apply to both oral and documentary discovery.

[11] The purpose of examinations for discovery is to: define the disputed and undisputed issues; know the case the parties must meet; obtain admissions; eliminate or narrow issues; and avoid surprise at trial (Green v. Canadian Imperial Bank of Commerce, 2020 ONSC 5342, para 8). Relevance, the scope of discovery and proportionality were summarized by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917. Discovery questions must be relevant to the issues as defined by the pleadings such that they must have probative value and adequately contribute to the determination of the truth or falsity of a material fact. Overbroad and speculative discovery and "fishing expeditions" are not permitted (Rothmans at paras. 129 and 154-157).

[12] Counsel’s discussions and exchanges after the January 20 case conference were focused on addressing the 8,000 refusals. As part of these efforts, the Insurers prepared two new charts setting out the remaining refusals: one with questions/refusals related to specific sites and from Ms. Lanteigne’s examination (the "Site Specific Chart") and one with general questions/refusals applicable to all Sites (the "General Chart", together, the "Charts"). Counsel continued to exchange answers and positions leading up to June 12 which, as before, resulted in a significant reduction of the refusals at issue. The process was assisted by Vale’s delivery of its expert reports on February 28 and March 7.

[13] At the June 12 attendance, the Insurers raised preliminary issues regarding the sufficiency of Vale’s searches and inquiries. As a follow-up to my directions in the Reasons, in particular the need for Vale to provide explanations if they could not search or locate certain documents, Vale filed affidavit evidence from Tracy Kit, Senior Records Analyst with Vale’s Records and Information Management Department ("RIM"). Among other things, Ms. Kit stated that most of Vale’s pre-1997 records are only available in hard copy stored in boxes at multiple off-site locations requiring significant efforts including staff reviewing a voluminous number of documents one by one. Vale argued that it would be unduly onerous and disproportionate to search for these documents especially since it had previously searched "hundreds of boxes" and that some of the Insurers’ requests would require Vale to re-do these searches. The Insurers cross-examined Ms. Kit and argued that her evidence demonstrated that Vale’s search efforts were insufficient and fell below the standard of "best efforts" (Gheslaghi v. Kassis, para 7). Based on Ms. Kit’s answers on cross-examination, the Insurers argued that Vale had not provided Ms. Kit and RIM with sufficient information to conduct proper searches, had not allocated sufficient staff and resources to RIM, had only recently conducted some searches, only undertaken test searches and had not made any inquiries of other Plaintiffs and custodians. Vale clarified that Ms. Kit was not involved in all searches, that her evidence was filed to address specific issues regarding proportionality raised in the Reasons and that in-house counsel and others in addition to RIM staff had participated in Vale’s searches.

[14] Proportionality necessarily continues to be a prominent theme of the refusals motions in these proceedings. As I have stated throughout, dealing with productions and refusals in any litigation is not about unhelpful "all or nothing" positions characterized by requests for everything and refusals to produce anything. This is particularly the case in large, complex actions such as these. Rather, discovery is about a series of balances. The Insurers’ right to discover the case against them, obtain admissions and avoid surprises at or close to trial must be balanced against Vale’s right not to be subject to disproportionate, onerous, repetitive and/or fruitless requests. Proportionality is not a blanket concept which applies in the same way to all questions and requests. Generally, proportionality is less of a factor where, as here, significant damages are claimed. However, consistent with Myers J’s December 25 Endorsement, proportionality is applied less stringently where the information and evidence sought is more material to the claims, and more stringently where it is not.

[15] It is undisputed that Vale has produced a significant number of documents, records and information including after the January case conference. However, this alone does not mean that Vale’s efforts are complete. Just because significant efforts have been made with respect to certain questions it does not automatically follow that further efforts are not required for other questions, particularly where the questions deal with material evidence and issues that have not been sufficiently canvassed. At the same time, as Myers J. stated in Green and his December 25 Endorsement, discovery is never perfect. This is more pronounced here given the volume of productions and information and the exacting timetable the parties are facing.

[16] In my view, it is not necessary to provide overall directions with respect to Vale’s search and inquiry efforts. It would serve no useful purpose and run contrary to the effective process employed by the parties and the court to date. With many questions, once clarifications and confirmations have been provided, only targeted efforts are required. Therefore, the most appropriate, efficient and proportionate approach is to address Vale’s efforts on a question by question and group by group basis. I am satisfied that, with the court’s assistance and counsel’s ongoing diligent efforts and cooperation, the goals of discovery can continue to be met and the Insurers’ concerns regarding sufficiently discovering the case to be met and avoiding surprises at trial can be properly addressed. The resolutions and directions below reflect this.

[17] Similar to previous attendances, the parties’ ongoing discussions and exchanges of documents, positions and information continued right up to the commencement of the June 12 attendance. As before, the attendance largely involved reviewing the remaining refusals in both Charts with counsel who provided clarifications and updates. In some cases, the parties made more substantive submissions or agreed to certain productions, inquiries or other steps.

[18] As the June 18 attendance commenced, the parties were again still exchanging answers and positions. Counsel advised that the parties had largely agreed on terms to resolve a large number of the remaining refusals. Counsel eventually met out of court during the hearing which resulted in the resolution of all remaining refusals. On June 26, 2025, counsel sent correspondence to the court which attached an agreement on all remaining refusals, including resolutions, interim resolutions and those which require the court’s rulings and directions (the "Agreement") which is attached at Schedule "A" to these Reasons. The remaining refusals are organized into four (4) categories:

i.) Category 1 – Questions which Vale submits are addressed in its expert reports. The Insurers maintain that the expert reports do not adequately respond to many of these questions. Vale acknowledges that, at this time, it is not aware of any other evidence beyond that provided in its current answers that would be responsive to the questions asked with the parties reserving their rights regarding any re-examinations of Vale’s corporate representatives;

ii.) Category 2 – Questions which Vale will make reasonable efforts to answer. Where Vale has indicated that responsive documents have been produced, Vale agrees to make reasonable efforts to identify documents in the productions that are responsive to the question or to update its answer to confirm that it has been unable to locate responsive documents within the production set. Vale will confirm whether it has already conducted reasonable searches of historical documents potentially responsive to the question. If such searches have not been performed, Vale will make reasonable efforts to search for documents, including historic pre-1997 documents, responsive to the question. Such searches would include reasonable inquiries or requests of third parties who may have responsive documents. The Insurers reserve their rights to request details of the searches conducted though Vale does not acknowledge that the Insurers’ reservation of rights requesting details of the searches conducted is appropriate and reserves its right to refuse any such questions. To the extent to which a question includes or only asks a specific question, Vale has also undertaken to answer the question. If Vale is unable to answer the question, Vale will advise that this is the case and explain why it is unable to do so;

iii.) Category 3 – Questions which the Insurers have agreed not to move on without conceding that they are not relevant;

iv.) Category 4 – All questions from the Site Specific Chart and the General Chart from the June 12 attendance which are under reserve to be ruled upon by the court.

[19] The questions/refusals in Categories 1, 2 and 3 do not require rulings or directions of the court. Therefore, they are only addressed in Schedule "A". These Reasons are a summary of my directions, rulings and orders and where applicable, the parties’ agreements, clarifications and resolutions with respect to the refusals in Category 4. As set out below, there are numerous questions in Category 4 from June 12 which the parties resolved or which the Insurers advised they were not pursuing.

[20] In order to help ensure that material documents and information are available for mediation and the actions remain on course for trial, I have ordered that documents, information or steps be provided or taken within 30, 45 or 55 days. It remains necessary for the parties to continue to be flexible and reasonable, providing documents and information sooner if possible and allowing more time where necessary. The parties shall also continue to cooperate with respect to the necessity to ask and answer reasonable follow-up questions and provide clarifications.

III. Site Specific Chart

[21] Approximately 450 refusals remain at issue in the 123-page Site Specific Chart. It is likely that there are more questions at issue given the multiple questions within the questions. The refusals and questions in Category 4 in the Site Specific Chart are all from Ms. Lanteigne’s examination for discovery.

[22] Legal Actions and Written Demands (Question #29) – The Insurers accept that this question has been answered.

[23] Organizational Charts (Question #31) – Vale has agreed under Rule 34.12 to request copies of any organizational charts showing reporting lines for the environmental and health and safety departments of Inco dating back to 1967. Vale shall do so and advise within 45 days.

[24] Director of Risk Management and Insurance (Question #39) – The Insurers seek confirmation that Inco Europe reported to Mr. Finnerty for insurance matters during the relevant period. Vale submits that this question was answered with others in correspondence to Insurer’s counsel dated April 3, 2025. To the extent to which this question has not been answered, Vale shall advise or confirm within 30 days.

[25] Quarterly/Annual Risk Management Reports (Question #42) – The Insurers request the production of any quarterly or annual reports which were prepared by the risk management and insurance department for the board or senior officers for the period 1967-1985. Vale has agreed to search for the period that Mr. Finnerty headed up the department, which I understand was 1978-1981. While this is a reasonable start, similar to other reports discussed below, more efforts may be required. I am satisfied that it is reasonable for Vale to conduct this initial search and advise regarding the results within 45 days. However, if nothing is located, as with its agreement regarding similar reports in Question 44 below, Vale shall search a wider time period.

[26] Foreign Sites Reporting Lines and Reports (Questions #43, 44, 45 and 47) – Vale has advised that it has made inquiries and been unable to locate any information or confirm that Inco Europe, Inco Japan or Inco Indonesia reported to Mr. Finnerty (Questions 43, 45 and 47). I accept that this is a satisfactory response given counsel’s further confirmation that the searches and inquiries were not limited in scope as those conducted by Ms. Kit. With respect to Question 44, Vale has agreed, subject to Rule 34.12, to make reasonable searches and inquiries with respect to any quarterly or annual reports provided to Mr. Finnerty or his department by the Inco Europe entity during the relevant period. Vale shall do so and advise within 45 days.

[27] Files of Complaints and Claims (Questions #79-80) – The Insurers have confirmed that they are not moving on these questions.

[28] Evidence Re: Insurance Decisions (Question #91) – Vale has confirmed that it has made searches and inquiries and been unable to find any evidence to contradict that insurance decisions were made by Mr. Finnerty from 1966-1985. Vale will produce any evidence it may locate. This is a sufficient response.

[29] Risk and Insurance Managers (Question #92) – Subject to Rule 34.12, Vale has agreed to make reasonable searches and inquiries to determine if each Inco entity (Inco Ltd., Inco Japan, Inco Indonesia and Inco Europe) had its own risk and insurance manager and if so, if these persons reported to Mr. Finnerty in New York. Vale shall advise within 45 days.

[30] Asset Retirement Obligation Costs (Question #117) – The Insurers seek all information about the asset retirement obligation costs for all Sites that were provided to Vale’s finance department for preparation of the asset retirement costs figure in the U.S. securities filing dated December 31, 2007. Vale submits that, as set out in its Statement of Claim, it is seeking a declaration that the policies provide coverage for existing and future environmental expenditures to investigate and/or remediate third party property damage at each Site on an all sums basis and indemnification on an all sums basis and that the expenditures are set out throughout the expert report of Larry Andrade dated March 7, 2025 (the "Andrade Report"). Vale further submits that at this time it is only seeking the declaration and not actual damage amounts. The Insurers submit that the filing includes costs which are not limited to those claimed in this litigation. In my view, a reasonable and appropriate start is for Vale to identify where this information is available in the Andrade Report and advise within 45 days. If there are additional costs from the securities filing which Vale is claiming in this litigation then Vale shall also identify these amounts if possible.

[31] Sudbury Summary/Interview Notes (Questions #124 and 134) – The Insurers advise that they are not moving on these questions.

[32] Position Re: Damages (Question #140) – The Insurers request Vale’s position with respect to whether there was actual third party damage in comparison to the damage claimed at paragraph 27 of its Statement of Claim. The Insurers submit that this is relevant to, among things, when Vale had notice of its claims. As is usually the case where damage claims are supported by expert reports, the issue in seeking a party’s position on damages is timing. This often involves the delivery of information, documents and positions on an ongoing basis with the issues more fully addressed at the pre-trial. It would be helpful to have as much of this information prior to mediation. Vale has advised that certain issues, including impacts to groundwater and surface water are set out in the expert report of Andrew Bittner dated February 28, 2025 (the "Bittner Report"). What is reasonable and proportionate is for Vale, to the extent to which it has not already done so, to identify the relevant information in the Bittner Report and, if applicable, other reports which have or will be delivered, and productions, within 45 days.

[33] Acid Rock Drainage (Questions #170-171) – Vale has advised the Insurers that it has been unable to make contact with the author of a report which references when the Ministry of Environment first raised "long standing concerns" regarding acid rock drainage. The author is retired. Vale has provided her last known contact information and has agreed to make additional inquiries with respect to contacting her including obtaining any alternate contact information. Vale shall advise within 45 days. The Insurers are not moving on Question 171 with respect to searching for records related to the long-standing concerns.

[34] Pollution and Environmental Board Reports (Questions #294, 295 and 296) – The Insurers request the production of any reports and memos to Inco’s Board of Directors from 1967-1985 in relation to pollution control and pollution events up to 2005 (Question 294); whether Inco had any subcommittees to deal with pollution or environmental matters between 1966 and 2005 and to produce all records regarding contaminants which may be at issue in these proceedings, and if Vale had any subcommittees or records from 2006 to the present (Questions 295-296). Vale submits that it is disproportionate and too burdensome to search for these records, even for those since 2006. These requests were first addressed on December 18. At paragraph 27 of the Reasons I held that the board’s knowledge of pollution and contamination is relevant particularly in light of the notice issues in these proceedings. I concluded that a reasonable, practical and proportionate first step was for Vale to make inquiries and advise what information and/or documents exist and/or are available which are responsive to these questions, and if Vale continued to take the position that production would be disproportionate given that the documents are only in hard copy, in many boxes in multiple locations, to set out the efforts required to produce them so that counsel could have further discussions about a potential reasonable and proportionate production. Ms. Kit’s affidavit evidence discussed above is largely in response to this direction. Vale submits that Ms. Kit, assisted by in-house counsel, conducted many of these searches. On her cross-examination, Ms. Kit was asked if she searched for "board packages". Understandably, she advised that she did not know what this term meant. More helpfully, she was also asked if she made any inquiries of in-house counsel or the other Plaintiffs as to whether they knew the location of board resolutions or minute books. She responded that she had not. Given my previous directions and based on the parties’ submissions and discussions, I am satisfied that it is necessary and reasonable for Vale to make further efforts, searches and inquiries to determine if the minute books and any sub-committee reports can be located, including by asking corporate secretaries, custodians and/or the other Plaintiffs. Vale shall do so and advise within 55 days. If anything is located, counsel shall discuss terms for its production.

[35] Water and Airborne Heavy Metal Damage (Question #302) – The Insurers request that Vale provide its knowledge on how to distinguish between damage caused by groundwater and surface water heavy metal particulates as opposed to airborne heavy metal particulates. Vale advises that its positions on these issues are set out in its expert reports and its letter dated April 8, 2025, entitled the "Path To Coverage" letter (the "PTC Letter") which explains the basis for Vale’s claims and theory of its case with citations to expert reports, including the Bittner Report, and affidavits. To the extent to which it has not already done so, Vale shall identify where these positions are set out in the PTC Letter, expert reports or other documents within 45 days.

[36] Regulators’ Concerns (Question #334) – The Insurers have advised that they are not moving on this question.

[37] Projects re: Acid Rock Drainage (Question #355) – The Insurers request that Vale list all projects it has been involved with the research of acid rock drainage as it applies to mining, smelting or refining operations including dealing with impoundments and waste. Based on the submissions and discussions, I am satisfied that it is reasonable for Vale to confirm if any such projects are set out in its expert reports and to identify where within 45 days.

[38] 1972 Document (Question #384) – The Insurers have advised that they are not moving on this question.

[39] Contaminants In 1972 (Question #386) – Vale has identified where in the Bittner Report it discusses the migration of contaminants from groundwater to surface water. The Insurers have reserved their right to ask further questions on re-examination, and Vale reserves its right to dispute re-examinations.

[40] Insurance Department (Questions #457, 459, 461 and 468) – The Insurers have advised that they are not moving on these questions.

[41] St. Paul Mercury Policy (Questions #472-473) – The Defendant St. Paul Mercury Insurance Company was the primary insurer for Inco Indonesia, however, neither Vale nor the Insurers have been able to locate a copy of the policy. After discussions with counsel, I am satisfied that it is reasonable and proportionate for Vale to make reasonable searches and inquiries regarding who at Inco dealt with this policy and to provide any information or evidence regarding the existence of the policy within 55 days.

[42] Broker Files (Question #476) – The Insurers request the entirety of the insurance broker’s file for 1966-1985. Vale has agreed to make reasonable inquiries of the insurance broker to determine what files may be available for production and shall advise within 45 days. A Rule 30.10 motion for non-party productions may be brought before me if necessary.

[43] Incident Procedure Policy (Question #515) – The Insurers have advised that they are not moving on this question.

[44] Losses and Reserves (Question #515) – The Insurers ask whether any losses have been designated for the claims at issue and if any reserves have been established for those losses. Again, Vale submits that it is only seeking declarations while the Insurers argue that this is relevant to timing and notice of when Vale became aware of its claims. I accept that the information sought is relevant. Vale has advised that these issues are or will be the subject of an expert report to be delivered before trial. To the extent to which Vale has not already done so, it shall advise if the information is included in an expert report that has already been delivered, and if so, where. If not, Vale shall advise if they know what expert report the information will be delivered in. This shall be answered within 30 days.

[45] Inco Environmental and Coverage Disclosure (Questions #531 and 534) – The Insurers request that Vale produce all reports and documents which Inco provided to Vale as part of its environmental disclosure regarding the Sites when Vale purchased Inco in 2006 (Question 531). The Insurers also request a summary of insurance coverage which Inco provided to Vale as part of Vale’s due diligence related to the sale. Vale advises that it has produced all reports and documents provided by Inco which it has been able to locate and its searches and inquiries are ongoing. Vale shall continue its inquiries and searches to determine if additional documents can be located. To the extent to which relevant documents have already been produced and can be identified as having been provided by Inco, Vale shall identify where in the productions the documents are located. The summary of insurance coverage shall also be produced if it is located. These steps shall be completed within 55 days.

[46] Claims Reporting Responsibility (Question #555) – Vale submits that the Insurers’ request for the identity of the individual at Inco who was responsible for reporting potential environmental liability claims from 1996-2005 has been addressed and subsumed within the 157 Requests To Admit which have been delivered by the Insurers with respect to Inco and Vale personnel. To the extent to which this question has not been answered within this process, Vale has agreed to do so, and shall provide an answer within 45 days.

[47] Insurance Department re: Acid Rock Drainage (Question #557) – The Insurers request whether Vale’s insurance department was advised generally about acid rock drainage as a potential source of environmental liabilities and if so when, and related documentation, Vale has advised that this is intertwined with issues that will be answered in an expert report to be delivered prior to trial. Vale has agreed to identify the expert report where it has, or will be, answered. This is a sufficient response.

[48] Personnel With Knowledge of Waste Management Processes, Contamination, Shebandowan Landfill (Questions #563, 574, 577 and 579) – The Insurers advise that they are not moving on these questions.

[49] West End Landfill/Oil Spillage (Questions #578 and 587) – The Insurers have advised that they have reserved their rights on re-examination with respect to these questions.

IV. General Chart

[50] The General Chart is 101 pages. Since substantially all of the questions in the General Chart apply to all 26 Sites, it is difficult to estimate the total number of remaining questions/refusals. There are approximately 120 questions/refusals under 28 groups. Over 26 Sites this would be a total of approximately 3,100 questions though in many cases, one answer applies to numerous Sites.

[51] Sudden and Accidental Events/Environmental Contamination (Groups A and BB) – The Insurers request whether the property damage at all Sites which was caused by one or more "sudden and accidental events" including when and where it occurred, when Vale became aware of it and reported it, what made it sudden and accidental and the particulars and supporting evidence (Group A). The Insurers also request all details regarding any spills and/or releases of contaminants from Vale’s operations that have caused environmental contamination at the Sites (Group BB). These requests involve a large amount of material information and evidence related to all Sites constituting a central part of Vale’s claims. In a letter from Vale’s counsel dated February 4, 2024, Vale provided the Insurers with its position regarding surface water contamination. As set out above, Vale has also set out the basis for its claims and theory of its case in the PTC Letter. Vale submits that these letters, which include citations to other documents, are responsive to these Groups. The Insurers claim that the letters do not provide sufficient particulars and evidence regarding Vale’s claims because they address some but not all Sites. Vale submits that it has provided all of the information, documents and evidence which it has to date with respect to both the Group A and Group BB questions. There is a necessary distinction between Vale’s positions and the evidence/particulars in support of its positions. I am satisfied that Vale has provided a sufficient response regarding its positions as it applies to both Groups A and BB. I am also satisfied that Vale has provided sufficient particulars and evidence with respect to the questions in Group BB. Vale’s answers to the Group BB questions are organized by Site and consume over 50 pages of the General Chart. I am less clear with respect to the sufficiency of Vale’s answers to the Group A questions as they relate to evidence and particulars. The Insurers assert that they do not have sufficient evidence regarding all Sites, claiming that the letters, the Bittner Report and other documents cited are limited. To the extent to which Vale has not confirmed that the information and evidence with respect to Group A applies to all Sites, then Vale shall do so, or provide an alternate or additional explanation or a breakdown by individual Sites as it has done for Group BB within 45 days. It is important for all efforts to be made to provide the additional information or clarifications prior to mediation.

[52] Costs Claimed re: Remediation of Contamination (Group B) – The Insurers have advised that they are not moving on these questions.

[53] Costs Claimed re: Mitigation of Future Contamination (Group C) – Vale has confirmed that it is relying on the Andrade Report with respect to its claims for costs related to the mitigation of future contamination at the Sites. This is a sufficient response.

[54] List of Statutes (Group D, Question (a)) – The Insurers request that Vale advise regarding the nature of Vale’s liability which gave rise to the costs it is claiming which it became obligated to pay by reason of liability imposed by law including the type, manner and date of the liability. In answering this question, Vale has provided lists of provincial, federal and foreign statutes under which it claims it incurred liability. It is reasonable and appropriate for Vale to identify the provisions of the statutes they are relying on within 45 days.

[55] Defence and Investigation Costs (Groups E and F) – The Insurers request the particulars of all defence and investigation costs which Vale is claiming including dates, breakdowns, underlying environmental claims and supporting evidence. Vale has advised that any defence and investigation costs which it is claiming are set out in the Andrade Report. Vale has further confirmed that if particular costs are not included in the Andrade Report then they are not claiming them. This is a sufficient response.

[56] Protocols and Procedures re: Environmental (Groups G and H) – The Insurers request, to the extent not addressed in the earlier examination on general reporting, a description and details of Vale’s protocols and/or procedures applicable at the Sites related to the internal and external reporting of environmental contamination identified, suspected or discovered at the Sites, including by identifying any productions which are relevant to this request (Group G). The Insurers also request a description and details of Vale’s processes for deciding on actions to be taken in response to such environmental contamination including copies of any reports or other documents (Group H). There was significant discussion regarding what steps Vale has taken with respect to these requests and additional steps it agrees to take. Vale has agreed to re-word its answers, which are different for some Sites, and to review its productions and identify any documents which are responsive to these requests. Vale has also agreed to make inquiries of Ms. Kit and other personnel regarding what searches have been or may be conducted, including what searches were done when a significant number of boxes (estimated in the hundreds) were reviewed. I am satisfied that this is reasonable and proportionate and Vale shall advise regarding the results of these efforts within 55 days.

[57] Permits, Licenses and Notices (Group I) – The Insurers request copies of any permits, licenses and/or other legal and/or regulatory requirements, notices of non-compliance and charges that Vale was required to obtain or comply with which are relevant to the claims at issue. Vale has advised that it has produced all such documents it has located which are identified in the General Chart by Site. I am satisfied that Vale has provided a sufficient response.

[58] Audits, Assessments and Investigations (Group J) – The Insurers request copies and descriptions of any audits, assessments, investigations, research, studies or tests related to the environmental contamination at issue and related information including when they were conducted, by who, Vale’s involvement, and the involvement of any government authorities or third parties. Vale has advised that it has produced all documentation and information it has been able to locate which is responsive to this request, that it will answer the refused part of the request related to the Gertrude Mine and identify all documents in the productions which relate to this request. Vale shall complete these steps within 45 days. I am satisfied that this is sufficient.

[59] Groundwater Monitoring/Sampling/Testing (Group K) – The Insurers request the particulars of groundwater monitoring/sampling/testing programs undertaken by Vale and/or government entities including the reasons, results and related information. Vale has advised that it has produced all documents they have been able to locate and related information, as set out in the General Chart, however, it will re-word its answers for clarity and identify all responsive documents in the productions. Vale shall complete these steps within 45 days.

[60] Water Treatment (Group L) – The Insurers request details regarding the nature, timing and reasons for any changes to the processes for treating water generated or emanating from the Sites (including mine water, run-off, or seepage from waste rock piles, tailings or other waste). Vale has provided answers in the General Chart and advises that it has produced all documents it has been able to locate. Vale has agreed to provide references to the Site Closure Plans where the information is located and will expand on the information provided for the Blezard Mine and the Birchtree Mine to the extent there is responsive information for the relevant period. Vale shall complete these steps within 45 days.

[61] Waste Storage/Disposal (Group M) – The Insurers request the locations and timeframes with respect to Vale’s storage and/or disposal of waste including waste rock piles, slag heaps, tailings, road and railroad beds, and fill of low-lying areas and the particulars of any risks of environmental impacts which were identified and if any infrastructure or other steps were taken to prevent, manage or mitigate any risks. Vale has provided answers and information in the General Chart, largely advising that the information is set out in the Site Closure Plans. Vale has agreed to provide more information and identify where the information is located in the Site Closure Plans. Vale shall advise within 45 days.

[62] Notice of Claims (Group N) – The Insurers ask why Vale did not provide notice to the Insurers of its claims when Vale became aware of them (Question N(f)). Vale refused this question but advised that its position is that it met its obligations under the applicable laws (set out in its list of statutes) to provide proper notice of circumstances that may trigger coverage under the policies and/or occurrences that trigger coverage when it appeared likely that coverage would be implicated by its environmental liabilities. In my view, this question has been answered subject to further clarification. This question presumes that Vale did not provide timely notice or delayed in notifying the Insurers. Vale has addressed this presumption by providing its position that there was no late notice or delay. I am satisfied that in order to complete its response, it is reasonable and necessary for Vale, to the extent to which it has not already done so, to provide the specific basis for its position, by reference to specific statutes or otherwise, and particulars for this position within 45 days.

V. Costs and Next Steps

[63] Counsel advised that the parties have agreed that the costs of the refusals motions and case conferences before me shall be in the cause. Counsel may schedule another case conference with me to speak to any issues or seek further directions.

Associate Justice McGraw
Date: July 20, 2025

Schedule "A"

The Parties’ Agreement to the Remaining Questions Subject to the Insurers’ Continued Refusals Motion Proceeding on June 18, 2025

Category #1

These questions are those that Vale contends are addressed in its expert reports. The Insurers maintain that the expert reports do not adequately respond to many of these questions. Vale acknowledges that, at this time, it is not aware of any other evidence beyond that provided in its current answers that would be responsive to the questions asked. All parties reserve their rights regarding any re-examination for discovery of Vale’s corporate representatives.

Site Specific Chart Questions [1]
General/All Sites Chart Questions [2]

Birchtree 30.a.-b.; Central Tailings 77c.A.-B.; Central Tailings 146.c.; Chicago 44.e.i-ii.; Coniston 25.b.ii.C.; Coniston 29a.i., a.v.; Copper Cliff Nickel Refinery 32b., b.ii.; Copper Cliff Nickel Refinery 41.a.; Copper Cliff Nickel Refinery 69.a.; Copper Cliff Nickel Refinery 99; Copper Cliff Smelter 43.a.iii, e.iv, g.vii.A.III; Copper Cliff Smelter 66.a.ii, d.v.; Crean Hill 28.f.i, g.iv.; Crean Hill 39; Creighton 57.a.i, b.i-v., c.i, e.i-ii., f.i-v.; Levack 113.a.-c.; Levack 122.a-e.; Matsusaka 30.g.; Matsusaka 39.a.v.; Matsusaka 85.a-c., d.i.A.B.C.; North 55.f.i.-ii.; Port Colborne Refinery 28.d.; Port Colborne Refinery 29.b.iii., d.vi.; Port Colborne Refinery 30.c.ii.A.B.; Port Colborne Refinery 35.c.ii., i.v, v.i, d.i.; Port Colborne Refinery 37.c.iii.; Port Colborne Refinery 78.a.i.-i.v.; Port Colborne Refinery 107.d.i.-i.i.; Shebandowan 38.k.i.A.B.C.; Victoria 3.c.; Victoria 69

General O; General P; General R; General T. (a-c); and General U. (a-b).

Category #2

These are questions Vale will make reasonable efforts to answer. Where Vale has indicated that responsive documents have been produced, Vale agrees to make reasonable efforts to identify documents in the productions that are responsive to the question or to update its answer to confirm that it has been unable to locate responsive documents within the production set. Vale will confirm whether it has already conducted reasonable searches of historical documents potentially responsive to the question. If such searches have not been performed, Vale will make reasonable efforts to search for documents, including historic pre-1997 documents, responsive to the question. Such searches would include reasonable inquiries or requests of third parties who may have responsive documents (for example, other Vale entities such as Vale's parent, Vale S.A., which may be in possession of due diligence documents from Vale's acquisition of Inco in or around 2006). The Insurers reserve their rights to request details of the searches conducted. Vale does not acknowledge that the Insurers’ reservation of rights of requesting details of the searches conducted is appropriate and reserves its right to refuse any such questions.

To the extent a question includes or only asks a specific question, Vale has also undertaken to answer the question. If Vale is unable to answer the question, Vale will advise that this is the case and explain why it is unable to do so.

Site Specific Chart Questions
General/All Chart Sites Questions

Birchtree 68.c.; Blezard 9.j.ii.; Blezard 62; Central Tailings 77.d.; Central Tailings 91.d.iv.A; Central Tailings 92(e); Central Tailings 100(i); Central Tailings 106j.A.i.; Central Tailings 107.i.ii; Central Tailings 108.a.-b.; Central Tailings 128.a.i.; Clydach 10; Coniston 22; Coniston 23.a.; Coniston 25.c.i.A-B; Constable Hook 50; Copper Cliff Nickel Refinery 41.d-e.; Copper Cliff Nickel Refinery 48.b.; Copper Cliff Copper Refinery 86.e.; Copper Cliff Nickel Refinery 95.a; Copper Cliff Nickel Refinery 98; Copper Cliff Copper Refinery 124; Copper Cliff Copper Refinery 125; Copper Cliff Nickel Refinery 132; Copper Cliff Nickel Refinery 134; Copper Cliff Smelter 73; Copper Cliff Smelter 75(a); Copper Cliff Smelter 78.c.; Crean Hill 21.a.; Crean Hill 28.f.ii., g.iii.; Crean Hill 30.a.-c.; Creighton 22.a.-c.; Creighton 37.a.ii., a.iv., b.ii.-b.iii.; Frood and Stobie 33.a.-c.; Frood and Stobie 53.b.; Frood and Stobie 62; Frood and Stobie 129; Levack 33.b.,e.; Levack 34.b.; Levack 43.a.-d.; Levack 51.a.; Levack 52.b.-c.; Levack 53.a.; Levack 53.c.; Levack 55; Levack 57a.,c.,d.,e.,g.,h.,i., j.i.-iii.; Levack 61.c.; Levack 63.e.,h.; Matsusaka 29.c.,e.; Matsusaka 30.e.i.; Matsusaka 35.a.i, b.i.; Pipe 19.h.ii.; Pipe 37.s.; Pipe 41.k.; Port Colborne Refinery 86.d.ii., d.iii.; Port Colborne Refinery 104.f.ii.; Port Colborne Refinery 109.a., e., g.; Port Colborne Refinery 125.e., g.; Port Colborne Refinery 127.e.; Port Colborne Refinery 128.a.; Port Colborne Refinery 132.d.,ii., iii., v., viii., ix.; Port Colborne Refinery 180.a., b.; Sorowako 30.a., b., m.; Sorowako 79; South 22.a.-c.; South 33.b.; South 37.b.ii, b.v.; South 82; Totten 48.b; Totten 53.b., d., e., f.i., g.; Totten 54.a.iv.; Victoria 4; Victoria 25.d.,f.; Victoria 65; Victoria 73; Victoria 3.a.; and Victoria 94.

General N. (a-e); General Q; General S; General T. (d); General U. (c); General W; General X; General Y; and General Z;

Category #3

The Insurers agreed to not move on these questions, without conceding they are not relevant.

Site Specific Chart Questions
General/All Chart Sites Questions

Birchtree 16; Birchtree 19; Birchtree 64; Central Tailings 19; Central Tailings 106 j.A; Central Tailings 107.h; Central Tailings 110; Central Tailings 113; Central Tailings 114; Central Tailings 129; Central Tailings 137; Chicago 32; Chicago 83; Clarabelle 24; Clydach 45; Coniston 24; Coniston 33; Coniston 55; Copper Cliff Nickel Refinery 62; Copper Cliff Nickel Refinery 64; Copper Cliff Nickel Refinery 71; Copper Cliff Smelter 75(c); Copper Cliff Nickel Refinery 95.b.; Copper Cliff Nickel Refinery 97; Copper Cliff Nickel Refinery 137; Crean Hill 28.c.iv., c.v.A.; Creighton 20; Frood and Stobie 53c.; Frood and Stobie 25; Frood and Stobie 28; Frood and Stobie 33.d.-g.; Levack 32; Levack 66; Levack 86; Levack 126; Port Colborne Refinery 83; Port Colborne Refinery 96; Port Colborne Refinery 145; Port Colborne Refinery 155; Port Colborne Refinery 156; Port Colborne Refinery 159; Port Colborne Refinery 163; Port Colborne Refinery 176; Port Colborne Refinery 182; Sorowako 4; Sorowako 35; South 35; South 85; Totten 28; Victoria 43; Victoria 48;

General V; and General AA.

Category #4

Questions under reserve to be ruled upon by Associate Justice McGraw.

Site Specific Chart Questions
General/All Chart Sites Questions

All site-specific questions under reserve addressed at the hearing on June 12, 2025.

General N. (f); and all general questions under reserve addressed at the hearing on June 12, 2025.

[1] See CaseCentre reference under proceeding CV-21-00666020-0000 in the June 12, 2025 bundle at Master B-1-2110.
[2] See CaseCentre reference under proceeding CV-21-00666020-0000 in the June 12, 2025 bundle at Master B-1-2441.