TOLL ON A TOWN
The trial went on to extend over 115 days in 2011, with the court hearing a total of 74 witnesses. In what became a battle of expert witnesses, the judge heard complex and often contradictory testimony on topics like epidemiology, oncology, hydrogeology and toxicology.
He also heard testimony from 17 people who either had cancer themselves or who spoke on behalf of a family member who had fallen ill. Bernier, Spieser and Juneau attended as often as they could — as did others from the community who had lost loved ones.
Sitting around Juneau’s kitchen table on a recent weekend, the trio struggled to explain the emotions they experienced while waiting for the judge’s decision.
Before the trial ever began, Bernier says, a lawyer they consulted asked them what they were hoping for. Spieser told him they were focused on three things: for the defendants to recognize their guilt, for an apology and for compensation.
Bernier recalled the lawyer leaning back and smiling widely. “Well,” he told them, “you can forget about the first two.”
Superior Court Justice Bernard Godbout rendered his 140-page decision on June 21, 2012.
In what was taken as a bitter disappointment, Godbout ruled the group had not proven the TCE was to blame for an abnormally high number of illnesses in Shannon, rejecting the causal link between the contamination and the diseases.
Godbout underlined that he heard contradicting evidence on how and when the TCE seeped into the groundwater and reached water supplies. Without tests being done at the time, it was impossible to know the TCE levels in residents’ wells throughout the years.
The suit initially sought compensation for anyone living in Shannon since 1953 and members of the Canadian Forces living on the base within the town’s boundaries during the same period.
But the judge only awarded compensatory damages to what the group would later describe as a “laughably small” proportion of the population.
The court granted those who lived in the “red triangle” $1,000 for every month they lived there between December 2000 and December 2001. The dates represent the time at which residents first learned of the contamination to when houses were connected to the municipal aqueduct system. People with children during that period were eligible for an additional $3,000 lump sum, bringing the total possible compensation to $15,000.
The ruling in effect reduced the matter to a “neighbourhood disturbance” under Quebec’s civil code. The compensation was for having been deprived of drinking water due to the contamination.
The disappointment in Shannon was immediate. Many became disengaged with the case.
“We had good, qualified witnesses who were recognized as experts by the court that believed in the link and put their name behind it,” Bernier says.
“But every time they testified, the other side had two experts saying the opposite,” he adds. “It was a 180-degree difference. The judge was repeatedly faced with two experts saying completely different things. How was he supposed to decide?”
Spieser admitted to a feeling of defeat. She had put so many residents’ stories on her shoulders and felt she let them down.
But the group remained determined. They consulted with their lawyers and filed an appeal the next month, arguing the trial judge erred in law.
It would take nearly another eight years for the three judges of the Quebec Court Appeal to rule on the case — and when they did last month, again the ruling did not recognize the link between the TCE and specific health problems.
There were small victories, however.
The judges ruled residents had suffered more than a nuisance by being deprived of safe drinking water — they had also suffered fears of being exposed to TCE. The court tied those fears to the fault committed by the defendants by unsafely disposing of contaminants for so many years despite red flags about the practice.
Documents filed in the proceedings suggested the military base was aware its water supply had been contaminated as early as the mid-1980s. The munitions factory had expressed similar concerns in the early 1990s. But Shannon was never warned.
In the end, more residents were made eligible for compensation and for a longer time — five years instead of one — increasing the maximum amount some residents could receive from $15,000 to $63,000 in total.
As television reports started spreading news of the judgment, Bernier’s phone and email flooded with people calling to know what it meant. Had they won? Had they lost? Was it some sort of half-victory?
The group is still wrestling with how to interpret the judgment. There were important gains, yes, and it is a big step forward compared to 2012’s ruling. But it’s still so far off what they were initially seeking.
“The crux of the matter remains the link between TCE and the illnesses,” Spieser says. “To not have convinced the judges about it … is difficult.”
For Chantal Mallette, who lived on both the army base and near the most contaminated area in Shannon, it remains a bitter denial of justice.
When her son Alexandre fell ill, she wasn’t aware of the contamination in Shannon. After learning about it, she remembers talking to a neighbour outside.
The first thing he did was start pointing to houses in the area where people had cancer. Mallette felt numb as the magnitude of the situation sunk in.
Less than two years later, in 2009, Alexandre died of brain cancer. He was 18 years old.
Mallette has been an outspoken critic of what happened in Shannon ever since. She attended the trial as much as possible and followed the case closely when she couldn’t.
She had promised Alexandre she would, she says.
“Morally, there’s been no justice,” she says. “Money won’t bring the dead back. It won’t change anything. But as long as there’s the smallest opening, the smallest chance to appeal this, I think we need to keep fighting.”
The group has until March 17 to decide whether it wants to seek leave to appeal the ruling with the Supreme Court of Canada.
They’ve been meeting with their lawyers since last month, drafting lists of questions they have about the most recent judgment.
Bernier says the people he hears from who are part of the class action are split 50-50: some want to continue the fight, others wonder if they’ve taken it as far as they can.
Regardless of the outcome, there may be no decision or level of compensation that will alleviate the concerns people in Shannon continue to live with.
The contaminated plume that migrated beneath the town remains there today. Though residents are no longer drinking Tce-laced water due to the new aqueduct system, they worry that fumes continue to creep into their homes, a phenomenon called vapour intrusion.
And with research showing Tcelinked symptoms can take years to appear, they fear for their children. If, say, someone lived in Shannon but worked outside of town, they only ingested contaminated water at home. But children in town were in it all day long: at home, at school, during sporting events.
“You do everything you can to raise your kids and make sure they’re healthy, then something beyond your control happens and no one wants to take the blame for it,” says Kerry Ann King, who raised her three children in Shannon.
King’s mother, 68, died of brain cancer in 1998. Her father, 69, suffered through colon issues before dying in 1996. Whenever her children fall sick today, she can’t help but think of the worst.
“I think, in the end, justice needs to be served,” she adds. “This is a really worthy cause because what happened just isn’t right. And it needs to be shown that it’s not right so it doesn’t happen again.”
With the years removed from the initial ruling in Superior Court, Spieser wonders whether the case was always destined to be decided in higher courts. She now sees that decision as having set the table for future action — a trampoline that could be used to the next step.
“For as long as we’ll be able to fight for certain points we think are just and fair, then we will do it,” she says. “If one day we run out of runway, then we’ll stop.”
As she says this, Juneau and Bernier speak up to repeat what they’ve said all along: They’re not doing this for themselves but for all the people who weren’t able to defend themselves.
The mood in the room becomes heavier.
Together, the three of them start listing the names of residents who have died.
As the court proceedings dragged on, the stories of those who became sick faded to the background. Names became numbers. People’s struggles with cancer were debated like statistics.
But to the group, they were always people they knew. Families they promised to fight for.
“You know, these judgments don’t make us lose our convictions,” Spieser says. “Maybe, because of the limits of the law, we’ll never have a decision that is just. But it will never change what we believe in.
“That’s why we’ve fought all these years.”
The crux of the matter remains the link between TCE and the illnesses. To not have convinced the judges about it … is difficult.