Marie-Paule Spieser to appeal from Justice Godbout's decision

On July 20, 2012, class representative Marie-Paule Spieser decided to appeal Justice Godbout's decision[1] before the Québec Court of Appeal. That decision, dated June 21, 2012, dismissed in large part the claim concerning the liability of the Attorney General of Canada, General Dynamics Ordinance and Tactical Systems-Canada Inc. (GD-OTS Canada Inc.) and Valcartier Real Estate Corporation Inc., for having contaminated, or for having known of the contamination of, Shannon's groundwater table with trichloroethylene ("TCE").

Justice Godbout dismissed most of Ms. Spieser's claims, including her claims for compensatory damages and for punitive or exemplary damages. Describing the fault committed by the defendants as [translation:] "mild neighbourhood annoyances", Justice Godbout granted $12,000 for contamination of Shannon's water to class members living in the "red triangle" area, an area smaller than the total area alleged by the class representative. The amount was awarded as compensation for the loss of use their private wells for the period of December 2000 to December 2001[2].

Ten grounds of appeal invoked to justify overturning the Superior Court judgement

The inscription in appeal sets forth ten grounds of appeal to justify overturning the judgment of first instance.

Strict liability acknowledged but not applied

According to the class representative, Justice Godbout erred in law by failing to analyze and rule on the constituent elements of fault pursuant to the regimes for extracontractual liability of articles 1457, 1465 and 1467 of the Québec Civil Code. Her allegation is that despite the judge's analysis of the theory of strict liability, he failed to rule on the alleged faults of the respondents. According to the representative's legal analysis, the acknowledged fault should have resulted in compensation for the direct and immediate harm caused by such fault, not only for "excessive and abnormal" harm. In her view, the evidence is unequivocal to the effect that the defendants committed a fault by using and disposing of the contaminant and by failing to warn the municipality and its residents that the groundwater table was contaminated. According to the representative, the judge's error in law was compounded by his failure to consider and take a position as to the applicability of the regimes of liability for damage caused by things in one's care. The judge should have held that all class members are entitled to compensation for all the direct and immediate harm they sustained.

No punitive damages for TCE examination

The defendants are charged with 'a desire or intent to cause the consequences of his or her wrongful conduct'[3], and for which the representative asked Justice Godbout to award punitive damages. This is what the representative cites as her second grounds for appeal. She claims that the judge erred in law by failing to analyze and rule on all the evidence submitted to prove that the infringement of the members' rights justified punitive damages being awarded. Ms. Speiser maintains that the judge erred by failing to apply the appropriate test of the St-Ferdinand[4] decision to the facts of this case, namely that punitive damages must be awarded when the wrongdoer acted "with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause"[5]. The representative further asserts that the judge did not make a direct ruling on the expert evidence in that respect, limiting himself solely to giving a brief summary of that evidence. It is also alleged that the judge misinterpreted the expert evidence supporting the thesis that the defendants had full knowledge of the consequences of their actions and omissions. The representative considers such a misinterpretation in law to be fatal because had correctly interpreted it, he would have found that the fundamental rights of the members had been unlawfully and deliberately violated.

Failure to consider the violation of the physical and psychological well-being and personal inviolability of the Shannon residents

According to the representative, the judge erred in law by failing to consider and rule on the damages sustained by members of group pursuant to the general regime of extracontractual liability. The representative maintains that, based on the evidence submitted, the judge should have held that the alleged faults caused the considerable physical, psychological, material or pecuniary damage sustained by the members. The class representative raises the judge's failure to comment on, and his complete omission to issue a ruling on, the violation of the members' rights to physical and psychological well-being and personal inviolability as provided for in the Québec Charter of human rights and freedoms[6] and the Canadian Charter of Rights and Freedoms[7]. This error in law is demonstrated specifically by Justice Godbout's finding that TCE is toxic and dangerous[8]. The representative further maintains that in interpreting the system of strict liability, the judge should have dealt separately with all the damages sustained by the members of the group rather than making an indiscriminate compensation award.

Incorrect determination of the group of persons who may be entitled to indemnification

As the fourth grounds of appeal, the representative argues that the judge patently erred in fact an in law in his determination of the group of members who may be entitled to compensation for trouble and inconvenience. According to the representative, consideration of the evidence that was submitted and analysis of the proposed juridical requirements could not reasonably result in the description of the group ultimately decided on by the judge of first instance. At that stage, the judge not only misinterpreted specific facts, but also misinterpreted the facts that, according to the representative, warrant a redefinition of the indemnifiable groups. The representative also argues that judge erred in law by incorrectly determining the indemnifiable period.

Rejection of the findings of the report on abnormally high cancer rates in Shannon

The representative maintains that the judge committed a fifth error in rejecting the findings of the expert report on the abnormally high number of cancer cases due to TCE exposure. The judge's ruling was based on presumptions that are irrelevant and unsupported by the evidence. According to the representative, such an error in law is fatal in this case because the report is critical to proving a causal link to various diseases and cancers.

Confusion between scientific and legal notion of causality

The sixth error ascribed to the judge of first instance is that he erred in law regarding the representative's burden of proof with respect to causation. According to the representative, the judge clearly confused the scientific and legal notions of causality. The representative maintains that the judge ignored the principles established by the Supreme Court of Canada in Laferrière v. Lawson[9] to the effect that all the evidence must be considered in order to establish a causal link on the balance of probabilities. According to the representative, the problem lies in the judge's interpretation of causality. She argues that he should have framed the issue by asking whether it was more likely than not that the alleged fault caused the harm sustained by a member. She further asserts that the judge's error was compounded by his failure to analyze and apply the presumptions of fact submitted to him in evidence. In short, she considers it patently unreasonable to apply a different and greater burden of proof than that which would normally apply in a civil liability context.

Exclusion of the sole evidence proving abnormally high TCE-related cancer rates in the Shannon region

The representative submits that Justice Godbout erred in law and in fact in his appreciation of the evidence submitted by epidemiological experts. The representative alleges that the judge of first instance held that an epidemiological study or analysis could not, by itself, establish a causal link. She asserts that in this respect, the judge committed several errors in law in his consideration of that evidence, specifically as regards the methodology used to interpret scientific data and draw conclusions therefrom. According to the representative, Justice Godbout's rejection of that evidence is a fatal error because it was the only evidence to the effect that there are abnormally high cancer rates in the area.

The setting aside of the rules governing injunctions

The eighth error in law committed by the judge of first instance, according to the representative, is that he failed to apply the rules of law governing injunctions. The representative argues that the judge should have ruled on the criteria for issuing such an order.

Errors in determining the indemnifiable period and various computation and clerical errors made by the judge

The representative's ninth ground of appeal is that without valid reason, the judge reduced the period respecting which interest and indemnities were granted. The representative maintains that the judge disregarded the conclusions in her proceedings, specifically that the court grant legal interest and the additional indemnity from the date of the motion instituting proceedings rather than from the date of service.

As her last grounds of appeal, the representative maintains that the judge committed a clerical error and an error in calculation, respecting which she requests correction.

Appeal highly anticipated by Québec's class action attorneys

This attempt to have the judgment of first instance overturned, specifically regarding the liability of the defendants for the various cancers and diseases afflicting the area's residents, may prove to be a major precedent - not only for environmental class actions, but for class actions generally. The analysis of causality by the judge of first instance may well be reviewed Will it be upheld or reversed? Stay tuned. This will be a much-awaited decision.