KVP Trial History

The following is a series of three articles which were recently published in the Mid-North Monitor newspaper, written by Peter Best of Espanola, Ontario.  

Article 1   

Presently, fishing and swimming can now be enjoyed in the Spanish River.    Of course it wasn't always so. When I grew up in Espanola in the 50's and 60's it was taken for granted that the river was polluted, devoid of fish and unfit for swimming. That was considered to be the normal, expected price to pay for the Community's "bread and butter", i.e. the mill and all the jobs and prosperity it brought.     We were wholly unaware that not too many years before the river had been clean and full of enough fish to justify commercial fishing and tourist fishing camps.    We were also unaware that several brave Massey Davids had taken on the KVP Goliath in Court for polluting the river and had been spectacularly successful, only to have their potentially devastating Court victory taken away from them by forces and powers beyond their control.    In the late 30's and during World War Two the river abounded with muskey, pickerel, bass and pike. The fishing, and the fishing business, was good.    The mill had not been operating since the beginning of the depression. During part of World War Two it had been used as a prisoner of war camp.    In 1943 it was purchased by the KVP Company which set in motion plans to reopen it.    The KVP's first local manager was Norval Hunter. Before the plant started to operate one of the Massey Davids, Dr. Downe, an ex-dentist from Sudbury, interviewed him and expressed his concern about the effluent that would be discharged into the river. He suggested to Mr. Hunter that the effluent be disposed of by being piped to a sand flats nearby. Mr. Hunter replied that this was not possible, that "it is a matter of economics". This comment would come back to haunt KVP.    When the mill reopened in the Summer of 1946, large quantities of chemically impregnated, digested wood fibre began to be discharged into the river, up to five tons of it a day. The wood fibres, varying in length up to one inch, were carried down the river in suspension. They lodged in the riverbed and accumulated there in large spongy, fibrous masses. They formed gases which caused them to rise to the top and float downstream. Some of the fibrous masses were as large as eight or ten feet across. When they broke up they gave off a foul odour.    Soon the river began to smell like rotten cabbage right down to and into Georgian Bay. If one cut a hole in the ice near the mouth of the river in the Winter of 1947 the smell, according to a witness who later testified in Court, was such as would "nearly knock you down". The ice itself, used in those times for refrigeration, became filled with black foreign matter.    The water became unfit for drinking, cooking or washing and when it was heated the vapours given off were so offensive that "you could not stay in the house".    The wild rice growing at the River's mouth was destroyed eliminating a feeding ground for ducks.    The river water could no longer be used to water farm animals or for any other domestic or agricultural purpose.    The fish were killed or driven away.     Most people accepted the death of the river as the price to be paid for the hundreds of jobs created by the mill reopening. After all, there had been little work available in Espanola since the beginning of the depression.    But Ted McKie, Earl McKie, Jack Gifford, Russell Vance and Dr. Downe, all of Massey, did not accept it.    They were "riparian owners", owners of property along the riverbank. They operated tourist camp businesses. James Vance had a commercial fishing license to fish the River. Dr. Downe was a man of sufficient private wealth to retain and pay high-priced Toronto lawyers to act for all of them.    Their businesses were ruined. Their personal and domestic use and enjoyment of the river was ruined. They were mad.     In May of 1947 they sued the KVP Company alleging that KVP had interfered with their ancient common law right as riparian owners to have the water flowing past their lands remain in its pure and natural state.     They asked for an injunction ordering KVP to immediately stop polluting the river. They asked for damages. The result of the injunction, if issued, would be that the mill would have had to shut down, throwing everybody out of work and jeopardizing the area's new found economic hope. KVP defended the lawsuit vigorously. The trial of the action took place in Sudbury and Toronto in December 1947 and January 1948, before Mr. Justice McRuer, one of Ontario's most esteemed and distinguished Judges.     KVP argued that the pollution was caused by the Abitibi Company, which had operated the mill from 1905 to 1930.    But the Court found that, even though Abitibi too had polluted the river, the effects of that pollution had been eradicated both by time and by a flood in 1934 which had washed out the bed of the river, permitting the fish to return and flourish.    KVP denied that their effluent was harmful to fish. But the evidence and image of dead fish floating downstream was too hard to overcome.    KVP argued that even if they were polluting the river, it was economically necessary for the Company to function. Further, they argued that their importance to the economy of the community was such that they should be allowed to continue polluting.     No, said the Court, this would give KVP "a veritable power of expropriation of the common law rights of riparian owners, without compensation".    The Judge negatively referred to Mr. Hunter's dismissal of Dr. Downe's sand flats suggestion, implying that now the Company was going to pay for such "indifference to the rights of others".     And pay it apparently would.    On April 15th, 1948, the Judge declared that the plaintiffs were entitled to an injunction and damages. He ordered as follows:    "An injunction will go restraining the defendant from depositing foreign substances or matter in the Spanish River which alter the character or quality of the water flowing over the lands of the plaintiff James B. Vance and washing the lands owned or occupied by the other plaintiffs. ... The operation of the injunction will be suspended for six months in order to give the defendant an opportunity to provide other means of disposal of its noxious effluent...".    There was no way that KVP could provide "other means of disposal" for its effluents in six months or in any other time period. The technology didn't exist. There wasn't the money.      The mill would have to shut down.    The Davids had seemingly mortally wounded Goliath.    But it was not to be over, or that easy.    KVP appealed to the Court of Appeal.    On November 22nd, 1948, their Appeal was dismissed with costs by a three Judge panel.     It would still not be over or that easy. The stakes were too high, for KVP, for the community of Espanola and for industry in general.    Old English common law principles, developed mainly in agrarian times, were being applied full force, regardless of the economic consequences, in the emerging, expansive, industrial, middle-class mass economy of post World War Two Canada.    The precedent, if allowed to stand, could be used to shut down industries and halt "progress" everywhere.    KVP had to fight on further and in different ways. The Court was proving itself here no friend of "big business". KVP would have to go the political route as well.    

Article 2   The Appeals and the KVP Act.

On November 22nd, 1948, the highest Court in Ontario ordered KVP, within six months at the latest, to stop polluting the Spanish River, or be in contempt of Court. This would mean fines and possible jail for KVP executives like Norval Hunter and Ben Avery, the two top KVP executives in Espanola. It would also mean that the mill would have to close.    The Company appealed further, this time to the Supreme Court of Canada.    But they weren't having much luck with the Courts, so they began to lobby the Government for help as well. Their efforts in that direction would be much more successful.    The McKies and Vances and the other plaintiffs had very little public support on their side. They were in the unfortunate, poignant position of being legally in the right but being dammed for it. Prophets without honour.    The leading politicians, Mr. Farquhar, the Liberal Federal member, and Mr. Fullerton, from Thessalon, the sitting Tory Provincial member for the area, who was part of Premier Leslie Frost's Tory government, exerted all the political power they had in Toronto on KVP's behalf.    One of KVP's directors was Beverly Mathews, of Toronto, a top Tory fund-raiser, influential in Ottawa and at Queen's Park. He had Premier Frost's ear.     The local Indian bands, many of whose members had got work in the bush camps, lent their support to KVP.     Inco and Falconbridge in Sudbury, who had been watching the case closely with both interest and apprehension, lent what support they could to advancing KVP's interests with the Government.    The result of all of this support for KVP in the corridors of power was the passage of some extraordinary legislation designed solely to get KVP out of the legal jam it was in.    On April 8th, 1949, while the Court case was making its way to the Supreme Court of Canada, the Tory Government at Queen's Park amended The Lakes and Rivers Improvement Act to give any Court power, where an injunction for river pollution was sought against a paper mill, to refuse the injunction if it was proved that the paper mill was so important to the area economy that the benefits of keeping the mill open outweighed the damages suffered by the person suing.    This was exactly what KVP had unsuccessfully tried to get from Justice McRuer.    It was obvious from the wording of the amendment that it was directed right at the KVP situation and nothing else. It reads as if it was dictated by KVP's lawyers.    So, when McKie et. al. v. KVP was argued before the Supreme Court of Canada, in the early Fall of 1949, KVP's lawyers pointed to this fresh amendment to Ontario law and said "Dissolve the injunction. Ontario law now gives you power to do it"!    "No", said the Supreme Court on October 4th, 1949, "we won't. That amendment didn't exist when the trial happened, or when the Court of Appeal decision happened. Therefore we can't and won't consider it". (Or words to that effect).    Further, the Court said, echoing Justice McRuer's thinking, they were determined "to prevent (abusive behaviour) by legalizing the commission of torts by any defendant who was able and willing to pay damages".     KVP's appeal was again dismissed with costs and the operation of the injunction was again suspended for six months, making May 4th, 1950 the date when the mill would have to close or KVP would be in contempt of Court.    KVP's lobbying efforts were resumed and intensified.    In 1950 the highest Court in Canada was not in Canada. It was the Privy Council in England, a hangover from the British Empire period. KVP appealed there, knowing it was a long shot. It was. On January 12th, 1950, the Privy Council in London dismissed KVP's petition for leave to appeal.     KVP had come to the end of the Court road, a loser at every step along the way.    The plaintiffs must now have felt victory so close in their grasp! And so much money spent and stress and flak taken!    But they were not to have (perhaps were never to have) victory, only disillusionment and legal bills.     With the clock ticking towards the May 4th deadline KVP's supporters swung into high gear at Queen's Park, this time with punishing results.     An extraordinary piece of legislation, The KVP Company Limited Act was rushed through the Legislature and passed, in an extraordinary Saturday session, on April 30th, 1950, just five days before the deadline expired. (The haste with which this Act was passed is seemingly evidenced by the fact that the passage date is erroneously stated as "April 31st").    Section I of the Act said:     "Every injunction heretofore granted against the KVP      Company Limited ... restraining the Company from      polluting the waters of the Spanish River, is      dissolved".    The right of the plaintiffs to claim financial damages caused by the pollution was expressly preserved, but this was small potatoes and small consolation to them. The case, to the plaintiffs, was never really about money. It was motivated by their enjoyment of and respect for the river and their desire to preserve it.

   
Article 3  The aftermath.

   The effect of the KVP Act of 1950 was in effect to give KVP a limited license to pollute the Spanish River. It legalized the private, common law wrong being committed by KVP against the riparian owners downstream of it, like the McKies and the Vances, so long as KVP was willing to pay financial damages suffered by them, which of course it was, those damages being a trifling price to pay for the right to operate as they had in the past.    For the McKies, the Vances and the other plaintiffs, the case was effectively over. They would collect the small damage awards the Courts had given them and dutifully apply them to pay part of their legal bills. They must surely have been bitter and have felt that the whole, arduous process had been a total waste of time, effort and money, a net loss experience. Dr. Downe died shortly after. Ted McKie later told his children that he could never get hired on at KVP because he had sued them.    But while they surely didn't feel it at the time, their sacrifices and brave efforts had not been in vain, and over time, events would show that they had set in motion a chain of events that would ultimately achieve the ends they had sought in their lawsuit, the preservation of the river, to the benefit of their descendants, KVP and its successors, and society in general.    For, contained in the KVP Act, was quite a unique provision, Section 4, which stated as follows:     "(1)    The Research Council of Ontario shall endeavour to    develop methods that, if applied by the Company, would     abate or lessen the pollution of the waters of the     Spanish River by the Company.The cost of carrying out its duties undersubsection 1 shall be deemed to be a debt due by theCompany to the Research Council of Ontario".    This provision must have been inserted to give some legitimacy, dignity and semblance of a higher purpose to what was otherwise a blatant, statutory expropriation without compensation of a private Court victory.     Nonetheless, implicit in Section 4 are the following presumptions:that industrial pollution is bad;that Government and private industry should develop policies and programs to reduce it; andthat, ultimately, private industry should bear the costs.We take those presumptions for granted now but for that era they were ground-breaking concepts.    My father, Don Best, joined KVP in 1950, after the Court case was over.     He believes now that the lawsuit against KVP was a good thing, for KVP, for the Province, and for industry. At the time, he said, in the stressful days just before the passage of the KVP Act, KVP executives were genuinely fearful of having to go to jail for contempt of Court. This made a lasting impression on them, for they were all thoroughly decent men, and it permanently raised their consciousness about pollution. The lawsuit "made KVP and other companies start to take pollution seriously. ... It was a wake-up call for the industry". He also said that it was one of the events that eventually led to the creation of the Ontario Water Resources Commission. Awareness of pollution and efforts to control or lessen it "started in Ontario" he said, and McKie v. KVP, was instrumental in that happening.      At Espanola itself the Company quickly began to take remedial measures. KVP built retaining basins to catch and retain wood fibre that would have otherwise gone into the river. They tightened up the mill sewers. They had people from the Company Lab patrol the river, taking samples to test the fibre and chemical content in the water. They even formed a fish tasting group to determine whether or not their efforts were having any effect. They started burning a lot more bark, rather than disposing of it and they increased the capacity of the recovery systems, to reduce both water and air pollution. McKie v. KVP was one of the main causes of all this happening.     We now live in a political and social environment in which the blatant, clubby influence-wielding and the hurried passage of something like the KVP Act, while it can and does still happen, is now much more subtle and unusual. McKie v. KVP was instrumental in jogging our collective consciousness to this slightly higher plane.     So we should be grateful to the plaintiffs in McKie v. KVP and recognize them for the courageous pioneers of environmentalism they were. They were 20 years ahead of their time, that's all. They have all passed away now. It's unfortunate that they were not recognized for what they did during their lifetimes. They deserved to be positively recognized then and they deserve it now.