22 Apr Sweet victory for Citizen Ouellette

The case for compensating residents of Sydney for injuries caused by the Sydney Steel plant and coke ovens has always been weak.

• The steel plant itself produced little in the way of harmful emissions; any harm to public health came mainly from the associated coke ovens, which produced large amounts of potentially harmful airborne emissions and runoff in the process of baking coal into coke.
• The health of coke ovens workers, who were surrounded by fumes from the coking process, certainly suffered from their exposure, but they were covered by Worker’s Compensation, the Faustian bargain by which workers surrender their right to sue for damages in return for modest but supposedly reliable compensation.
• Health effects from environmental exposure depend on the dose of that exposure, and dose received from airborne emissions declines sharply with distance from the source. So any putative damage to public health in the community surrounding the plant would be much less severe than that experienced by coke ovens workers.
• The largest chronic health risk assessment ever carried out in Canada determined that industrial residues the neighbourhood immediately downwind from the coke ovens were typical of those found in any community with a history of heavy industry—say, New Glasgow or North End Halifax—and posed little if any risk to public health.
• The public’s almost unshakable belief that the Sydney Tar Ponds, a tidal lagoon polluted with municipal sewage and coal tar, posed a public health risk is a dystopian fantasy. Once the Tar Ponds were fenced off to exclude trespassers, there was no credible pathway by which the public could be exposed to the contaminants they contained.
• Even if emissions and runoff from the coke ovens did play some small role in public health outcomes in Sydney, their impact would be impossible to prove, and impossible to sort out from confounding factors that almost certainly played a much bigger role: diet, smoking, exposure to second-hand smoke, income inequality, and cancer-causing viruses such as HPV.

Despite all this, I feel grudging admiration to Debbie Oullette, the former resident of Frederick Street, adjacent to the coke ovens site, who this week received confidential cash settlements from two companies—Domtar Inc. and Ispat Sidbec Inc.—predecessors of which held ownership stakes in the steel plant prior to the government takeover in 1967.

Ouellette was, to put it mildly, a figure familiar to anyone involved in the long, destructive debate about how to clean up the Tar Ponds. She attended every meeting, scoured every report, and could often be sighted, video camera in hand, monitoring cleanup activities from the perimeter fence.

Ouellette sued Domtar and Sidbec, along with the federal and provincial governments, on her own, without a lawyer. Unschooled in the law, she had to learn the byzantine labyrinth of technical rules, procedures, forms, and customs required to bring suit against governments and large corporations.

I have acted as a self-litigant myself, in a much simpler proceeding, and I found it an unpleasant experience. The cost of legal representation has grown so exorbitant that most people can’t afford lawyers, so our courts are overrun with self-litigants who have but a tenuous grasp on the courts’ many excessively fussy rules. The resulting delays try judicial patience, and too many judges take out their frustration on the self-represented parties.

I’m guessing the compensation Ouellette received was modest—a few thousand dollars in “please go away” money to save her corporate adversaries the much greater cost of hiring blue chip lawyers to fend off her claims. Nevertheless, my hat is off to her. Her pluck and perseverance succeeded where topnotch tort litigator Ray Wagner’s attempt at class action suit based on essentially identical facts failed spectacularly.