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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.
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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