by Colin Perkel
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Jamie Smith knew whom he could trust. Despite all the touchy-feely stuff coming from Flaherty’s office about doing the right thing, it was open war. For more than eight gruelling hours in Toronto in early January, the government’s lawyers dredged through every nuance and word of his affidavit, trying to discredit him in any way possible. They got nowhere. Finally, as required under Ontario law, a hearing to certify the class-action suit was scheduled before Superior Court Justice Warren Winkler. As it had done for months, the government argued its compensation plan was the preferred way to proceed. But it also had a curious backup argument: if the court were to decide the government had played a role in the deaths and illness in Walkerton, its lawyers argued that it was the result of a policy decision that made it immune to a lawsuit under well-established legal principles.
Justice Winkler listened quietly to the arguments, but on the second day, he became more interventionist, more challenging, more skeptical. He had heard enough. He called the bevy of lawyers together and floated the idea of mediating a settlement. What followed were days of intense and difficult negotiations. Winkler put on a virtuoso performance in the search for compromise.
Strosberg held out three conditions for a settlement. Court supervision was key. But he also realized there had to be something that gave people an immediate return: a minimum payment. He was also of the view that the government had run up the legal bill by its intransigence. So a third condition was complete payment of the legal fees but not, as is usual, from the final compensation award. At last it appeared a deal was in hand and the representative plaintiffs were told to assemble in Toronto. The courts would supervise the settlement. Every man, woman, and child in Walkerton would get at least $2,000 tax-free, more if their circumstances warranted. There would be no limit. The various insurance companies would kick in $17 million to cover the compensation and another $5 million for legal fees to end the action against their clients, among them Stan Koebel and the Biesenthals. In return for not having the action certified against it, the government agreed to foot the bill for any higher costs.
Companies facing litigation make a simple decision: What makes the most business sense? But government, with its massive resources, bases its decisions on a far fuzzier rationale: What makes good political sense? And what made good political sense to the Tory government was that its own Walkerton compensation plan had to be seen as the centrepiece of any class-action settlement. Strosberg was more than happy to give the government its due. And then a bombshell hit. A Canadian Press reporter uncovered details of the deal and the story hit the front pages. The article quoted a source who suggested the tentative deal showed just how poor Flaherty’s “original” plan had been. The government threw a fit. There was no way it was going to guarantee an open-ended financial package if it couldn’t take the political credit.
“We can’t trust you guys,” government lawyer Paul Morrison told Strosberg. “The leak had to come from your side.”
“It didn’t,” said a stunned Strosberg. “I swear to you it wasn’t me.”
For the next two days, both sides haggled mistrustfully over every word of the press release that would announce the settlement, and every word of the public statement Strosberg would make after the announcement. The government was sure Strosberg would embarrass it in public. Strosberg was sure the government would try to say the settlement was just a warmed-over version of Flaherty’s own plan, that he and his legal colleagues had fought it in court simply to run up their own meters. To ensure that didn’t happen, Strosberg demanded Flaherty take the stage with him at a news conference planned for after the presentation of the proposed settlement to Judge Winkler.
“Bring Flaherty, I want Flaherty,” he told Morrison.
“Flaherty’s never going to come,” Morrison told him. “You’re a lawyer so why shouldn’t there be another lawyer?”
“I’m not going to stand there with a lawyer. I represent a class and I want somebody who represents the government,” Strosberg insisted.
And so they haggled, even as the judge and assembled media were kept waiting. At the ensuing nationally televised news conference, Jamie Smith choked back tears as he praised the agreement wholeheartedly and urged everyone in Walkerton to accept it. Sitting to his left at the table next to each other were Strosberg and the government’s lawyer, Paul Morrison. You’d have thought they were best buddies. Flaherty, of course, was a no-show. The following night, hundreds of people jammed the community hall in Walkerton to hear Strosberg and his fellow lawyers extol the settlement. It was the largest turnout for any meeting related to the calamity. No one in Walkerton questioned the wisdom of the class action. Terry Halpin felt thoroughly vindicated. Three weeks later, Jim Flaherty was named deputy premier and given the coveted finance portfolio.
Trial by Public Inquiry
IN CRITICIZING public inquiries as a cumbersome, ineffective, and seemingly never-ending process, Premier Mike Harris might have misjudged one key factor: the man chosen to lead it, Dennis O’Connor. Although possessed of a powerful legal mind and a capacity for hard work, it would be his gentle sense of humour and unfailing courtesy that would endear him to the people of Walkerton and to those who appeared before him. His unstinting determination and fairness would quickly put the lie to New Democrat Leader Howard Hampton’s ugly aspersion that the judge could not be trusted to probe a labour-unfriendly Conservative government because he had once represented a client in a case that attacked a fundamental tenet of Canadian unionism.
The Ontario Appeal Court justice set to work immediately after being named to lead the probe by assembling a formidable array of talent: Paul Cavalluzzo, a labour lawyer with expertise in public, constitutional, and administrative law; Brian Gover, a criminal lawyer and former Crown prosecutor; and Freya Kristjanson, a lawyer with already extensive experience in inquiries who drove to the first meeting with O’Connor with a broken hand.
It was a rainy Sunday in Toronto, June 2000, when they got together for the first time to tackle the mammoth task. There was so much to decide, from mundane questions such as what to call the probe (The Walkerton Inquiry) to more difficult issues of how to go about getting the information they needed and how to proceed. It was clear they needed seasoned help for their fact-finding. They determined that only investigators from the federal Royal Canadian Mounted Police would be seen as independent and above reproach. The initial request for documents went out in late June, barely six weeks after the first funerals. More than two dozen search warrants were drawn up and executed. Ultimately, as many as one million government documents would be turned over from eight ministries, along with a handful from the cabinet and premier’s offices. Never before would a government’s inner workings be subject to such intense public scrutiny.
Among the inquiry’s first orders of business was to find out whether the town would be amenable to a visit by O’Connor, who wanted a first-hand look at the crisis. Cavalluzzo and Kristjanson drove up in early July. With them was irrepressible media guru Peter Rehak, a former long-time executive producer with CTV’s national current affairs program W5, who firmly believed there’s no point throwing a party if no one shows. There they found a citizenry imbued with a deep distrust of government officials and a cynicism about the media, which had rushed in at the height of the tragedy and rushed out as soon the story began to age. Yet people were open to an O’Connor visit and informal hearings were scheduled so as not to conflict with the bingo evenings at the Knights of Columbus hall just south of town.
On July 25, more than two months after she first fell ill with diarrhea and tested positive for campylobacter infection, Evelyn Hussey became the seventh death of the outbreak. Although she’d had heart trouble and had been terribly ill, she appeared to be recovering, had even walked around a little. Then her kidneys failed. She died just shy of her eighty-fifth birthday in Walkerton hospital, a day before O’Connor arrived in town.
For several days, residents poured out the
ir grief, their anger, their questions. They came as well to private meetings, to share with the judge their stories of illness and death. O’Connor listened attentively to each and every one, occasionally asking a question or interjecting a word of encouragement, occasionally wiping a tear from his own cheek. It seemed as if the giant beating heart of the town had broken under the crushing weight of its grief. It was, as Pastor Beth said, as if the town somehow trusted O’Connor to put it back together again.
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Provincial police, too, had thrown themselves into a criminal investigation and complained regularly the public inquiry was getting in their way by seizing documents and talking to witnesses. RCMP Insp. Craig Hannaford, the lead investigator for the inquiry, did his best to smooth provincial police feathers.
“We certainly won’t be interfering with your investigation,” Hannaford said over lunch one day to Insp. Paul Chayter, the provincial officer in charge of the criminal investigation.
“You being here interferes with my investigation,” Chayter shot back.
Nevertheless, armed with a mandate from the highest level of government, the inquiry lawyers pressed on. Gradually, painstakingly, they began piecing together the bits of a giant jigsaw puzzle, and in late August, one of the centrepieces fell into place.
Lawyers defending the utilities commission against the class-action suit had begun to suspect all was not as it seemed as they struggled to unravel the tangled history of the water utility. At last it became clear to them that Stan and Frank had been falsifying the records. They passed that information to Bill Trudell and Ken Prehogan, who was acting for the PUC at the inquiry.
“I need to come in and see you,” Trudell told Paul Cavalluzzo.
He took with him Prehogan, who, like Trudell, had been stunned by the revelations. Never had he come across a fraud case that didn’t have a financial motive, pure and simple greed as its underpinning. Together, they met Cavalluzzo and Brian Gover in the third week of August and handed over a letter Prehogan had written indicating that the well records maintained by the Koebel brothers were unreliable. So were the sampling submission sheets. Therefore the test results themselves were not reliable, at least not in terms of where the samples were taken. The door was barely shut when Cavalluzzo and Gover looked at one another.
“Holy shit!” Cavalluzzo said. “Holy shit.”
Until that meeting, the inquiry lawyers had assumed that what had happened was likely the result of inadvertence or incompetence at the local level. But the revelations of falsification had taken the probe into a whole new realm. It was obvious that if criminal charges were going to be laid, Stan and Frank were targets. Still, their stories were crucial. But getting the truth from Stan was proving difficult. These were events he dearly wished had never happened, events he wanted to forget. Deeply depressed, he was often confused and had trouble explaining himself. Gently but persistently, the inquiry lawyers worked to gain his and Trudell’s confidence, so that ultimately, the people of Walkerton would hear from the man they had trusted for so long to look after their drinking water. He owed it to them.
Frank, too, had become increasingly agitated. The various lawyers were pressing back into the past, into the Ian McLeod era, and he was greatly troubled. On two occasions, Frank showed up unexpectedly at Ruth McLeod’s home, once with his wife.
“If Ian was still there, this would never have happened,” he told McLeod’s widow. “Now we’ve got this three-ring circus in Walkerton.”
It seemed as if he were trying to warn her, as if he wanted her to be prepared. The lawyers were advising him to say there were “irregularities” in how her husband had run the PUC, that he hadn’t trained them properly to do the job. Ruth was struck by his use of the word “irregularities.” That didn’t sound much like Frank talk. As she watched him pace nervously, she tried to figure out why he’d come to visit. Then it hit her. They were going to try to shift the blame onto her husband, who had died in 1993 of a brain aneurysm and couldn’t defend himself.
“That’s not right,” Ruth said.
“I know that,” Frank said.
“You should do what’s right,” she said. “Tell the truth.”
“I feel really bad,” said Frank, his distress evident. “I had so much respect for Ian. I miss him.”
Don Herman, the retired PUC backhoe operator, was also surprised when Frank showed up at the door of his trailer-home just west of Hanover. Hermy thought his visitor looked like hell as he paced the kitchen floor. Frank looked like a kid who has done something wrong and is scared his dad will find out and lay on a beating when he gets home from work.
“Al Buckle is shooting his mouth off all over town,” Frank said.
Hermy had no idea what Frank was talking about.
“If people come in here asking you questions about what was going on down at the PUC shop, don’t you tell them nothing,” Frank suddenly said.
“There’s been nobody in yet,” Herman replied, still puzzled.
Frank continued mumbling to himself as he walked around in tight circles. He said something about Stan being in trouble of some kind, that they wouldn’t even let the two of them talk to each other. And then, as unexpectedly as he’d arrived, he left again. Herman felt vaguely threatened. What exactly had Frank been trying to tell him? He’s running scared, he decided.
“What did Frank want?” Herman’s wife asked.
“He just wanted to tell me to keep my mouth shut.”
—
On October 16, 2000, the TV satellite trucks and other media vehicles rolled into town once again. Reporters patrolled outside the post office, or trolled Main Street looking for someone, anyone, to interview. It was time for the inquiry’s public hearings to begin. At last, the real answers would come. The hearings opened with technical experts who talked in great detail about the weird and wonderful world of hydrogeology, about scrubbing pipes, about chlorine residuals, about surface water and groundwater. This wasn’t news. This was education. For the media, who had played such a pivotal role in alerting the world to the disaster and had posed so many questions about political accountability, it was as exciting as watching paint dry and most left. But stitch by stitch, as transcripts and exhibits piled up, the inquiry lawyers began creating an intricate tapestry of the Walkerton disaster. After the experts, a parade of Environment Ministry officials from Owen Sound testified. With the exception of Michelle Zillinger, they all sounded much the same, as if they were part of some alien system populated by paper-pushers where decisive action and strong opinions were neither wanted nor needed. Whatever had been going on at the PUC, the ministry had let it go on. In town, people who had always believed that Stan Koebel wasn’t solely to blame felt vindicated. But it was Mayor Dave Thomson’s turn on the stand that provided the first moments of drama. Asked how he felt when he finally accepted the truth of Dr. McQuigge’s allegations about Stan Koebel, Thomson gasped audibly and began sobbing into his hands. Watching the proceedings on TV, Frank Koebel suddenly felt stabbing pains in his chest. He thought he was having another heart attack.
It was the first time since the hearings had begun six weeks earlier that the raw emotions stirred by the tragedy had bubbled so clearly to the surface. The elderly man who ruled council with a thinly gloved iron fist cut a sorry figure as he tried to explain himself. Why, for example, hadn’t he declared a state of emergency? It was a question many townspeople wanted answered.
“We felt that we had it under control and we wished to make sure that the water got looked after right, and had the experts there to do it,” he said.
But he could provide no answers for his own apparent indifference to the unfolding crisis. He had simply done his best to handle a situation in which he’d been as blindsided as anyone. He was unable to recall specific details about many events and, in his evident nervousness, fractured the English language:
“I knew what E. coli was as far as hamburger, those sorts of eating, with meats. But I wasn’t aware of E. col
i in water, no. Not that it was detrimental in water.”
During a recess, Thomson stood outside in the chilly November sunshine, his face flushed, shaking like a leaf as he tried to light a cigarette. There wasn’t a trace of a smile or even comprehension when a reporter told him what had befallen his big-city counterpart: Toronto’s colourful Mayor Mel Lastman had just set the provincial capital a-titter with his announcement he was being sued by his long-time former lover and the two children he fathered by her for $6 million. Thomson’s day of testimony had been relegated to secondary news. And then it was time for the lowest man on the totem pole to testify.
Poor Al Buckle: hired to cut the grass, not corners; bubble-checker without peer; first-rate ditchdigger, even in his good clothes; Frank Koebel’s helper as of March 2, 1992.
“Now, as you know, that bubble was not meant to be used to determine the chlorine residual,” Cavalluzzo noted at the inquiry in early December.
“I always believed that was the way they done it. That’s my believing: that’s the way it was done,” Buckle responded.
“Right. Did you ever question Frank as to why he didn’t use the tool kit that had the purpose of determining the chlorine residual?”
“No, I never did.”
“Did you ever use the tool kit itself?”
“Occasionally. But, my judgment on the colours would never match to Frank’s colours.”
Around the inquiry room, lawyers in expensive suits stifled grins.
“And I wasn’t that familiar with it. It just didn’t work right for me. So I’d watch when he set the bubble and whatever the bubble was, that’s what I would go by.”
Like his mentor, Buckle didn’t much care for chlorinated water. And like so many others, he was spectacularly, blissfully unaware of its importance.
“I thought the water was good because every different occasion we were at the pumphouse, we’d drink the water out of the raw side,” he told Cavalluzzo.