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Bulletin

$12,000 for Neighbourhood Annoyances in the Class Action for Contamination of Drinking Water in Shannon

Fasken
Reading Time 3 minute read
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Environmental Bulletin

The class members residing in the sector of Shannon called the "red triangle" will be entitled to a maximum amount of $12,000 to compensate them for abnormal neighbourhood annoyances resulting from the loss of their private wells between December 2000 and December 2001. Pregnant women and people with children will be entitled to an additional $3,000.

This is what Justice Bernard Godbout ruled in the decision handed down on June 21, 2012, allowing in part the class action instigated by representative Marie-Paule Spieser against the Attorney General of Canada, General Dynamics Ordinance and Tactical Systems Canada Inc. (GD-OTS Canada Inc.), and Valcartier Real Estate Corporation Inc.

Spieser v. Canada (Attorney General) (PDF available in French only)

However, the Superior Court dismissed the greater part of the representative's claims, setting aside her claim for compensatory damages, as well as that for punitive or exemplary damages. The more significant claim was the one concerning compensatory damages. The plaintiff had pled that a number of the class members were affected by cancers that had been caused by trichloroethylene (TCE). The presence of TCE in the water table and in the class members' artesian wells was due to a practice that consisted of disposing of waste containing TCE simply by releasing it into the soil.

This practice apparently began in 1938, with the opening of Dominion Arsenals Ltd., a crown corporation, and ended when Quebec's hazardous waste disposal regulations were promulgated in 1985.

The court pointed out that it is incumbent upon the plaintiff in an extra-contractual liability action to prove fault by the defendants, harm, and a cause-and-effect relationship between the fault and the harm.

The court did not specifically rule on whether the release of TCE constituted a fault. It was not necessary to examine this issue given the ruling on the other aspects of liability.

The court ruled that the harm and the causal relationship between the "fault" and the harm was not proven. The plaintiff failed to prove that there were more cases of cancer in Shannon than among the general Quebec population or that there was a cause-and-effect relationship between the presence of TCE in the drinking water and the cancer cases identified in Shannon.

The ruling contains a long discussion of the evidence concerning hydrogeology, toxicology and epidemiology.

The court therefore dismissed the claim for compensatory damages, which was the representative's primary claim. It also dismissed the claim for punitive or exemplary damages, given that nothing indicated that the defendants deliberately tried to cause harm to the class members. Similarly, the court dismissed the claim brought by the defendant companies to have the claim for exemplary damages declared abusive.

That said, the doctrine of neighbourhood disturbances helped the plaintiff and the court ruled that being deprived of its wells for a one-year period constituted an abnormal neighbourhood annoyance.

The court therefore awarded a maximum amount of $12,000 to the class members to compensate them for this annoyance, awarding an additional $3,000 to pregnant women and people with children.

While this may be a modest victory, it is a victory nonetheless, with the court ordering the defendants to reimburse the representative for her expert fees and costs of $1,612,362.11, plus reimbursement for copies of medical files ($36,748.61) and newspaper notices ($26,830.85).

The plaintiff has not yet stated whether she will appeal the decision. She has one month to make her decision.

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