The nuclear liability case is over

Norman Rubin
Energy Probe
December 31, 1989

After 10 years and many millions of dollars, our case to strike down the Nuclear Liability Act is over. Our decision to call a halt to the proceedings in this long, long saga, which had at least another two years to run and possibly ten, was not easy — we have a strong case and a history of winning in the higher courts. But it was inescapable. Along with our co-plaintiffs, the City of Toronto and Dr. Rosalie Bertell, we have called it quits.

In the end, we were outmaneuvered. The lawyers for our opponents — the federal government, Ontario Hydro and New Brunswick Power — were able to transform our request for a simple and inexpensive clarification of the law into one of the largest and most expensive civil trials in Canadian history. Because of brilliant legal techniques that forced us to legally prove the most obvious of facts — even facts conceded in their own evidence specifically prepared for the trial — the last round alone required months of discoveries followed by more months in court, generating over 2,000 pages of transcripts and over 1,000 supporting exhibits.

To our surprise, and with the generous help of our legal team, which waived most of their usual fees, we were able to fund the research necessary to parry their legal arguments, and to win our share of the victories. But their breathtaking spending on $400 an hour lawyers and consultants racked up millions in fees that — under the trial judge’s ruling — become the responsibility of the losing side. The court case turned into a poker match in which the big spending federal government, and especially Ontario Hydro, were able to up the ante to stratospheric levels.

And that’s what did the case in. Under the original agreement between Energy Probe and the City of Toronto regarding the sharing of court costs, Energy Probe would provide the research and arrange for the lion’s share of the legal fees, and, if we ultimately lost and were unable to pay the other side’s court costs, the City would advance the monies, and we would then pay the City back. This arrangement worked fine until it became clear that the federal government and Ontario Hydro had spent millions — and planned to spend millions more. That spending meant that we could not, if we lost, ever reimburse the City, as we were committed to, no matter how long the terms might be. We advised the City that we would not be able to honour our commitment in the event of an ultimate loss, leading to a joint decision to end the case. The defendants in the case readily agreed to settle. The financial upshot of all this, after 10 years in the courts? The City of Toronto will have spent $350,000, Energy Probe about $1,000,000, and the taxpayers and ratepayers of the federal government, Ontario Hydro and NB Power many

times that amount. Ironically, Energy Probe has been paying its legal expenses as it went along, and avoided any debts by setting aside money. The federal government, Ontario Hydro, and NB Power, in contrast, all went deeper into debt while spending millions on this case, forcing tax payers and rate payers to pay for the trial for years to come.

I personally regret not being able to carry the case through to completion. Having lived and breathed this case for a decade, I would like nothing more than to strike down this awful law, which protects the likes of Ontario Hydro, GE and Westinghouse in the event of a catastrophic accident, even one they cause, at the expense of those who would lose their homes and livelihood without any entitlement to fair compensation.

But I also recognize that the case has largely served its purpose, and in more ways that one. Impartial Canadians apprised of the facts no longer defend the nuclear industry. When we first launched our case in 1986, the nuclear industry was expanding with no end in sight. Today, in part because our activities helped inform the general public and shake some sense into government leaders, it is being phased out. Even the judge at the last trial, though he preferred the government’s arguments to ours, was very clear on two points: the possibility of a catastrophic nuclear accident in Canada exists, and the continued operation of Canada’s nuclear reactors “would be in jeopardy” without the special protection of the Nuclear Liability Act. We were beaten in the court system, but it’s the nuclear industry that is bowed.

I offer my sincere gratitude to the many thousands of Canadian citizens, and the foundations and agencies, whose contributions have so generously supported this trial. I hope you all agree with the decision we took, and that you are proud of the trial’s accomplishments. We had no other reasonable option. And now let me tell you about one of the biggest dividends to come from the trial — the reams of secret nuclear safety documents that, thanks to the court system, the federal government and Ontario Hydro were forced to release. These official documents, made exhibits at trial, show that nuclear reactors are more dangerous, and that government regulators are more lax, than even we at Energy Probe had recognized. With them now public, we have our most potent weapons yet to force improvements, and to show that an orderly and prompt phaseout of existing nuclear power plants is the only logical course for Canadian society. We have already begun turning our attention to this urgent goal.


Norman Rubin
Director, Nuclear Research


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