Environmental Class Actions and Claims for Health-related Injuries: Causation and its Pitfalls
On June 21, 2012, the Honourable Justice Bernard Godbout rendered a significant decision in the area of Environmental Class Actions, in the Spieser v. Canada (A.G.) case1. This decision is important because the Superior Court was called upon to examine a claim for health-related injuries. This decision illustrates the very complex nature of a claim of this type and the challenges which the parties face in the context of such litigation, in particular in demonstrating the link between cause and effect between pollutants and health-related injuries. This litigation unfolded over 115 days of trial, during which 74 witnesses (of which 23 experts) were heard on complex and diverse questions in the fields of hydrogeology, vapor intrusion, toxicology, epidemiology and oncology.
Summary of the facts
The Plaintiff, Marie-Paule Spieser (Ms. Spieser), sued the Government of Canada, a research center and a munitions manufacturer on the grounds that they had allegedly spilled trichloroethylene (TCE) on the ground, leading to a contamination of the water table and drinking water wells of the residents of the Municipality of Shannon. Ms. Spieser alleged that this TCE contamination was the cause of an abnormally high number of instances of cancer, illnesses and other ill effects among former and current residents of Shannon. Ms. Spieser sought compensation and damages and also injunctive relief requiring the Defendants to take measures to decontaminate the water table. She also claimed punitive damages related to injuries to the physical integrity of class members and to the enjoyment of their property.
In order to understand the nature of Ms. Spieser’s claims properly, some historical background is necessary. The Government of Canada and a private company successively operated a research center and a munitions factory on the Valcartier military base located within the territory of the Municipality of Shannon, between 1938 and 1991. In the context of the activities of the military base, of the research center and the munitions factory, a certain product, TCE, was used as a solvent, notably in order to extract fats and other fatty materials from metal parts, in particular in the context of different steps in the munitions manufacturing process. This product was then disposed of in the local environment at different sites on the military base until the early 1980s, prior to the adoption of the Hazardous Waste Regulation in 1985.
For the purposes of the case, most of the facts giving rise to the litigation were not contested, notably those dealing with the use and disposal, over the years, of TCE. Rather, the debate centered on the existence or non-existence of consequences resulting from the use of TCE.
After having laid out the factual and scientific evidences in detail, Justice Godbout began his analysis by identifying, eloquently, the main question in dispute, i.e. whether the evidence adduced by both sides led to the probable conclusion that there was indeed an abnormally high number of cases of cancer, illnesses and other ill effects among the residents of Shannon and, if so, whether TCE was the cause. Justice Godbout recalled the fundamental principle of extra-contractual liability (torts) that the Plaintiff had to prove on a balance of probabilities that it was likely, not just possible, that the Defendants had contaminated the water table by strewing TCE on the ground and that there was a causal link between the fault and the damages she alleged.
Having thus described the framework of his analysis, Justice Godbout concluded that the Plaintiff had not met her burden of proof with respect to causation.
Justice Godbout emphasised the uncertainty of the underlying data used by the experts. In particular, he underlined that the hydrogeological evidence, as well as the digital models used to determine the situation over the years, based solely on current data, were not conclusive, to the extent that each expert arrived at different and contradictory conclusions. Based on the evidence adduced in the area of hydrogeology, Justice Godbout found that it is not known at what point the TCE reached the different water supply sources, just as we do not know what the concentration level of TCE was in the water in the past. This uncertainty is very important to the outcome of the case.
Justice Godbout then examined the evidence adduced in the area of molecular toxicology. He emphasized at the outset that there was a significant weakness in the evidence led by the Plaintiff, recalling that, even if we are able to demonstrate the existence of cancerous cells among the samples studied, the evidence did not demonstrate that it was specifically the TCE that caused the cancerous process observed among the cells that were analyzed.
Justice Godbout also remarked on incongruities in the interpretation of results concerning the alleged increase in the number of cancer cases. The Plaintiff claimed that TCE was directly responsible for the increase in the number of certain types of cancer in the population. However, some types of cancer are not recognized by toxicologists as being associated with exposure to TCE. The same number of cancer cases was found among persons living in residences whose water contained increased concentrations of TCE as among those living in residences whose water contained minimal or even non-existent concentrations of TCE.
Furthermore, basing himself on explanations provided by the experts, Justice Godbout explained that the analyses conducted remained no more than calculation exercises, the results of which are always affected by weaknesses or biases in the underlying data. Reports portrayed as epidemiological studies were not such and, consequently, the abnormal nature of the situation in Shannon had not been proven.
On the basis of the foregoing, after having analyzed the totality of the evidence, Justice Godbout concluded that Ms. Spieser had not demonstrated, on a balance of probabilities, whether by direct evidence or by presumptions, that TCE, having contaminated the water table, was the cause of an abnormally high number of instances of cancer, disease and other ailments among the residents of Shannon.
With respect to damages, Justice Godbout did not order the Defendants to pay punitive damages, because even though he arrived at the conclusion that the behaviour of the Defendants could be qualified as showing lack of concern, the evidence did not demonstrate that the Defendants and their agents acted in a manner showing a desire or will to cause the consequences of their wrongful actions.
However, Justice Godbout did award compensatory damages, on the grounds that the Defendants were subject to the strict liability regime in matters of neighborhood annoyances and that the contamination of the water table and water wells amounted to an abnormal nuisance exceeding tolerance limits. Justice Godbout also mentions that water is a precious, essential and indispensable commodity. When the problem of well contamination became known, certain residents were deprived of drinking water for a period of one year, essentially in 2001 (specifically between December 21, 2000 and December 31, 2001), the time that it took for their residences to be hooked up to Shannon’s municipal water supply. The Court granted an award of $1,000 per month to the relevant residents aged 18 and older, which represents an amount of up to $12,000 per person, for the fears, worries, troubles and nuisances associated with the fact of having lost a source of drinking water in such circumstances. Persons who had custody of or were responsible for one or more children under the age of 18 living with them in an affected residence were awarded an increase of $3,000 to their total indemnity, for a total of up to $15,000. It should be noted, however, that only a fairly limited number of class members are entitled to this indemnity – specifically, those who lived during the relevant period in a zone described as "the red triangle" in the judgment.
As the evidence did not allow the Court to establish an apportionment of liability among the Defendants, since it was impossible to determine which spills actually caused the problems, the Defendants were condemned solidarily (i.e. on a joint and several basis).
With respect to the injunction sought, Justice Godbout refused this, underlining that the Defendants are presently carrying out the necessary decontamination measures for the water table and the wells.
Even though the bulk of the expert evidence presented by the Plaintiff was not retained by the Court, the Defendants were nevertheless ordered to pay all of the Plaintiff’s expert fees, in excess of $1.6 Million, as well as the other Court costs.
This type of claim remains very rare in Canada. Justice Godbout’s decision constitutes the first judgment on the merits rendered in Canada in a big case brought by way of class action dealing with a claim of health-related injuries alleged to be attributed to environmental contamination. This type of claim is much more frequent in the United States, which has a significant history of industrial activities having contaminated the environment, as well as a judicial system more conducive to this type of lawsuit by reason of civil jury trials that can lead to significant punitive damage awards.
Nevertheless, this case is a precedent in many regards. It shows that, despite the intuitive connections we may draw between environmental problems and health, it remains very difficult to prove these following the rules of extra-contractual responsibility (tort law). Obviously, we know that industrial, agricultural, domestic and other activities produce pollutants, but the consequences that these pollutants may have on humans are not always clearly known. Nor is it easy to establish the duration or scope of exposure to the pollutants in question. We should also note that health is impacted by the combined effect of multiple factors. The effect of the environment on human health itself has different dimensions and illnesses can be caused or favoured by multiple factors other than exposure to chemical substances present in the environment: hereditary causes, lifestyle, smoking, obesity, diet, bacteria, exposure to other substances in other locations, etc… The interaction between the environment and health therefore remains nebulous to some extent.
Justice Godbout's comments confirm that this scientific uncertainty makes it difficult for a Plaintiff to meet his or her burden of proof. Allegations of injury to health or of health risks turn into complex claims, requiring considerable evidence, often technical but also highly speculative.
Obviously, these difficulties may be reduced over time, as scientific knowledge in the fields of toxicology, epidemiology and medicine is constantly evolving. Nevertheless, we must recall that, even where there is scientific consensus, the outcome of such complex litigation remains hard to predict. One thing is certain: for the moment, it is unlikely that the Plaintiff's failure in this case will result in a decrease in claims of this type. Such claims can bestow on Plaintiffs increased negotiation leverage in the context of a class action. Fortunately, this case also shows that the courts are not inclined to accept claims of this type without seeing whether they stand up to a rigorous analysis of the evidence. It is clear from Justice Godbout's decision that he took care not to accept the Plaintiff's sometimes seductive equations blindly but, rather, chose to rely on the contents of the evidence, which always provides the best answers in these emotional cases.
We note, however, that Justice Godbout was sensitive to the difficult situation that the affected residents lived through. Indeed, it is the first time that the contamination of subterranean water, affecting drinking water wells, was sanctioned by the notion of neighbourhood annoyances provided for in article 976 of the Civil Code of Québec (CCQ), which allows for liability of the Defendant even if where he/she has not committed any fault (tort), as was recognized by the Supreme Court of Canada in the Ciment du Bas-Saint-Laurent inc. v. Barrette2 case. In this regard, the judge's analysis is very laconic. The Court does not discuss at all the passage of time between the original spills in 1938 and the early 1980s and the nuisance suffered in 2001, in the context of the application of the article 976 CCQ and the notion of "neighbours". Nor does the Court discuss the fact that, most of the period during which the spills occurred, i.e. until the Environment Quality Act came into effect in 1972, this practice was completely legal and in conformity with then-current practices. The judge's sensitivity to the residents' plight is also reflected in the amount of damages awarded (up to $15,000 for residents with children, for nuisances endured during a period of one year), which seems rather generous, considering the nuisances in question. In fact, one could argue that the only nuisance suffered consisted in having had to procure bottled water for one year for consumption purposes. Finally, the judge's sensitivity toward the residents is also reflected in his decision on costs, where he ordered the Defendants to pay all of the experts' fees, despite having sided with the Defendants on most of the questions in dispute. Some might see in this a concern not to discourage the filing of similar actions in future.
In conclusion we should also emphasize that this class action is the perfect example of the increasing complexity of litigation, notably in environmental matters. This kind of case creates significant challenges for the judicial system. It will be interesting to see whether this decision is appealed and what fate awaits it at higher court levels.
1 2012 QCCS 2801
2  3 S.C.R. 392