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Osgoode Hall Law Journal

Document Type

Article

Abstract

In 1982-83 a small group of Cape Breton landowners and two Indian chiefs, with wide-spread public support took the multi-national forest industry to court in Nova Scotia; and lost Their objective was to obtain an injunction to prevent the spraying of a dioxin-contaminated herbicide on forest plantations near their homes and properties and those of their neighbours The case raised important environmental law issues including the use of class actions, reliance upon common law causes of action, and the availability of injunctive remedies Most significantly, the case brought to the fore the question of how the judicial system should handle the deliberate release of toxic chemicals into the environment when uncertainty existed concerning the impact this activity would have. In this article the author provides background to the case and analyzes the Nova Scotia Supreme Court decision. He concludes that future plaintiffs in a similar position should win on existing legal theory. Finally, Professor Wildsmith suggests an alternative approach that judges could and should within an evolving common law system, take to adjust the burden of proof in cases concerning the use of toxic chemicals.

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