Toronto pols personally liable for trash troubles, lawyer says

Northern Ontario litigator tells Toronto councillors they'll be personally responsible for any problems if controversial dump goes ahead

By: Charlie Angus

  June 6/00 - In what could be the first case of its kind, a northern Ontario lawyer has put the 57 members of Toronto City Council on notice for personal liability for any problems which may arise from the proposed Adams Mine dump. Owen Smith, a New Liskeard lawyer specializing in civil litigation, has formally written to each member of Toronto Council and delivered what he describes as a "wake-up call" over the issue of personal liability.
  "This letter is crucial," explains Smith, "because it is a warning from a potentially aggrieved party that if something goes wrong, you can't claim you didn't know." The five-page letter outlines potential oversights and shortcomings of the controversial project, and sets out the legal precedent for holding councillors responsible for any site.
  Smith is basing his claim on a ruling made last April by the Supreme Court of Canada (ADGA vs. Valcom) which holds corporation directors and principals personally liable for damages if it can be proved that proper "due diligence" was not carried out by those parties.
  "The decision says that you simply can't rubber stamp what your corporation is doing," Smith argues. "You have to take steps to show that you at least made an effort to know those decisions were right."
  The Adams Mine has been at the centre of conflict since 1989, when it was first proposed as a dump site by a consortium led by North Bay promoter Gordon McGuinty. McGuinty's company, Notre Development, has faced major opposition from locals but has found some powerful backers in the Ontario Northland Railway and other corporate sponsors.

1,000 Years of Liability

  Much of the controversy over the Adams Mine rests on the suitability of the site, since most landfills are sited in clay soil and are built with plastic liners to prevent contact with the water table. The Adams Mine, however, is made up of three massive pits sunk into highly fractured rock. The pits break through the water table at numerous levels.
  As well, the site is located on the height of land overlooking the rich Temiskaming farm belt. Much of the organized opposition to the dump comes from the farmers downstream, who fear that possible leachate contamination from the numerous fractures and fault lines could damage their underground wells.
 

"For this pit to work, they will have to maintain the pumps for 100 years after the site has been shut down. And then, they'll have to monitor and flush the site for another 1,000 years." - Joe Muething, longtime dump opponent

  McGuinty, however, has been using these apparent disadvantages as a selling point for the site by maintaining that an experimental design concept will ensure that the water flowing into the pits will not flow back out into the surrounding environment.
  The principle is known as hydraulic containment: as long as water is pouring into the pits from the various fractures, leachate will be unable to escape. The plan is dependent, however, on a number of premises - the main one being that water pressure flowing into the pit will be greater than the pressure of 20 million tonnes of garbage pressing out. To maintain this inward pressure, the dump must rely on a pumping system. If the pumps should fail or clog up, the dump - and those living downstream from it - will be in trouble.
  Joe Muething, a local resident and longtime dump opponent, says the idea is nuts: "For this pit to work, they will have to maintain the pumps for 100 years after the site has been shut down. And then, they'll have to monitor and flush the site for another 1,000 years."
  Notre's closure plans include this contingency, albeit in a scaled-down fashion. The plan sets aside $1.30 a tonne for 15 years to cover these costs. (The consortium has projected the price of labour 600 years into the future at $25 an hour.)

Bore Holes

  In 1998, McGuinty brought his case before the Environmental Assessment Board. The proposal was the first test of the newly rewritten EA laws, under which the Province is able to scope and limit the questions asked about the proposal. Discussion of the Adams Mine proposal was limited to whether hydraulic containment would work.
 

If the water pressure was great in one fracture, but low in another, the leachate might simply follow the path of least resistance and make a beeline out into the environment. If leachate did get into a fracture, it would be virtually impossible to track.

  The main stumbling block for McGuinty was in proving that the water levels coming into the pit would be consistent. If the water pressure was great in one fracture, but low in another, the leachate might simply follow the path of least resistance and make a beeline out into the environment. If leachate did get into a fracture, it would be virtually impossible to track.
  Notre's theory is based on computer modelling, with a number of test holes to check water pressure at various levels. The only bore hole drilled under the pit, however, seemed to suggest that the levels were too erratic to be trusted.
  Muething explains: "That one drill hole raised the alarm bells, because it showed that according to the way Notre was going to build the dump, the pit would leak."
  According to Muething, the EA should have thrown the proposal out, as McGuinty hadn't proven his case. Instead, two of the three judges agreed to let the plan go forward, provided McGuinty carry out two more bore holes in the questionable region below the pit. Muething says that both of these new holes confirmed the fact that the water levels were problematic, even though neither of them was close to the previously identified problem area.
 

Highway sign, Highway 11, north of Englehart, Ontario

  He believes the issue should have gone back to the EA panel to be debated. Instead, Notre supplied information to the Ministry of Environment and a decision to give the go-ahead was given at an essentially closed-door meeting. Says Muething, "From the beginning the Ministry was accepting the information supplied by Notre. In the end, the final decision was left in the hands of a bureaucrat based entirely on information supplied by Notre and the Ministry."
  So what does an inconclusive EA have to do with the liability of Toronto City councillors? Everything says Owen Smith.
  According to Smith, the size of the project and the risk involved requires "aggressive risk management" to mitigate against any future claims. This means that Toronto Council needs to conduct independent studies to verify the claims of the promoter.
  "If Toronto wants to rely on experts hired by the proponents, they do so at their own peril. The one thing I've found from doing civil litigation is that experts are notoriously inclined to go in favour of the people who hire them. Toronto should make sure that it hires its own experts to go over this thing before they chose to vote on it."
  He says that if the project does go ahead he will be paying very close attention to any faults the site may reveal. "Having brought to their attention the potential problems of this project, Toronto councillors can no longer plead dumb. They have been warned and that warning should make them exercise due diligence."
  Toronto Council is expected to make its final decision on where to send its garbage early in July.

Charlie Angus is the editor of HighGrader Magazine in Cobalt, Ontario. His latest book is the photo-collaboration: Industrial Cathedrals of the North. He is the lead singer with the Canadian folk band Grievous Angels.

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Read Charlie Angus' article Toronto pols go airborne to dodge northern garbage dump protest.

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