IT’S NOT EVERY DAY a taxi shows up at Stonegate. It was around noon when a young woman in jeans, a reporter from the Globe and Mail, got out. Susan Bourette wanted to ask a few questions about the source of the E. coli now known to have come from Well 5, which lay behind a bit of scrub just east of the Biesenthal property. The tall vet seemed reserved but friendly enough. Beyond having heard that E. coli found in his cattle were a near match to those found in the poisonous water, no one had told Dave Biesenthal anything.
“How would you feel if this farm was the origin of the contamination?” Bourette asked.
Biesenthal could feel his blood starting a slow boil. Her tape recorder suddenly felt like a weapon.
“I know this could potentially be the origin of the problem,” he said. “But what can I do about it? Go out and shoot my cows? It’s easy to say this is the origin, but how did it get from here to the well? I didn’t take a bucket of manure and throw it down the well.”
In London early the next morning, Laryssa was preparing for the Olympic team rowing trials when she heard her farm home had become national news. She raced for the phone and called her unsuspecting parents. It was 7 A.M.
“Why is our name all over the radio?” she asked a startled Carolyn. “Are you okay?”
It was as if a hand grenade had been tossed into the quiet farmhouse, heralding a hostile invasion of reporters, photographers, and TV cameramen. Biesenthal parked a front-end loader across the bottom of the long drive to dam the stream of intruders. He retreated to the far end of his farm to bale straw to get away from it all. His farm, his refuge, his home, soon began to feel like a cage surrounded by predators. Carolyn was constantly close to tears, no longer even wanting to go to church in town. Dave didn’t feel much better. The market for his animals sagged.
“Those goddamn Toronto media are ruining this town,” someone at the Becker’s said to him.
The woman behind the counter gave him a rose. “For your wife,” she said.
Some time after, a client from out of town was at the clinic.
“I’m surprised they didn’t lynch you,” he said.
No. But it felt that way, a feeling reinforced with each visit from yet another of the dozens of investigators who arrived to prod him with questions about his manure, sample his cattle, or poke holes in his fields.
The car nosed through the opening between two small stone walls, a ceramic plaque with a B on the left, another with a black horse on the right. It edged up the well-tended gravel drive that runs from the highway between rows of small spruce and locus trees that form the edging of two fields of corn and beans. When he reached the top of the drive, a barn and small pasture to the right, the yellow-brick farmhouse to the left, the driver stopped. Biesenthal, who was standing in front of the stable, didn’t recognize the car or driver, a shortish man neatly dressed in shirt and slacks in his mid-thirties. The stranger seemed thoroughly ill at ease. Biesenthal stalked over, his fists clenched.
“Who the hell are you? What the hell do you want?” he roared.
“I’m Peter Raymond,” the man stammered, his eyes misting over. “My daughter passed away from E. coli. We just wanted to tell you we don’t hold you responsible for her death.”
When Carolyn pulled up a little while later, the visitor had just left.
“What’s the matter now?” she asked her husband.
“Guess who was here,” he said softly, tears streaming down his face.
Not long after the Biesenthals returned from a welcome break in Sydney where Laryssa had again made them proud with another Olympic bronze medal, Dr. Murray McQuigge presented his final report on the outbreak. In all, an estimated 2,300 people fell ill from the bad water in Walkerton. At least half, 1,286 people, lived in the town itself, 26 per cent of its entire population. The others worked or went to school in town, or, like little Mary Rose Raymond, had been among a stream of visitors on or around the Mother’s Day weekend. About 725 people had passed through the Walkerton emergency room in the last two weeks of May, more than double the average number of ER visits. The worst day had been May 24, when 113 people had filed through. In all, the outbreak killed seven people: four died from E. coli O157 poisoning, three from the combined effects of E. coli and campylobacter bacteria. Had a calamity of this relative magnitude hit a city such as New York or Paris, 4 million people would have fallen ill in the space of two weeks and 14,000 would have died. Unimaginable, nuclear-bomb-scale catastrophe. McQuigge also reported that genetic mapping had determined the E. coli O157:H7 found in the town’s tap water had come from a farm next to Well 5, known from Day 1 to be vulnerable to contamination. The bacteria had apparently found their way from the fields into the underground aquifer that fed the well. A day after McQuigge’s report, a man in a suit arrived at Stonegate and handed the Biesenthals a brown envelope. Stan Koebel and the Walkerton Public Utilities Commission had named the couple as third-party defendants in a $350-million class-action lawsuit.
The class-action lawsuit, launched at the height of the disaster, was destined from the start to become much more than a legal battle. Almost immediately, the already severely stressed town split into factions over the wisdom of what amounted to suing themselves. Nice people don’t go around suing each other, some said. It will bankrupt the municipality, others insisted. Retired lawyer Terry Halpin, who for a few days had thought he was dying from a mysterious illness, had launched the initial proceedings. Halpin was primarily angry at the seemingly hit-and-miss approach taken to informing the public about the boil-water advisory. When one of the town’s minor-league sports teams won a championship, the occasion was celebrated by an impromptu parade of fire trucks driving through town honking their horns and sounding their sirens. Halpin believed that every available police car, ambulance, and fire truck should have been out with sirens blaring, warning the people. Given the size of the town, they could have covered every corner in ten minutes flat. Instead, word of the boil-water advisory had been left to percolate through the town and beyond, leaving many to continue drinking the potentially lethal bacteria cocktail. Halpin also believed that because it was a Walkerton problem, any lawsuit should be homegrown. It was a fond hope. Soon, the town would find itself stretched in a high-stakes legal tug-of-war between big-city lawyers and the provincial government.
One of those city lawyers was Harvey Strosberg, a large man with vast experience in class-action suits and dealing with government. Ultimately, Strosberg would spearhead a suit that came to involve six law firms and dozens of lawyers, who together demanded general and punitive damages of $350 million from the municipality, the Walkerton Public Utilities Commission, Stan Koebel himself, the health unit, and the Ontario government. The lead plaintiff was Jamie Smith, a history teacher at Sacred Heart, whose son’s bout with E. coli poisoning in May 2000 was a terrifying reprise of a 1998 episode in which the child contracted the illness during an unexplained outbreak at a Walkerton day care. Provincial police Const. Jamie McDonald was a strong backup plaintiff.
From the outset, Strosberg realized that politics would determine how the class-action lawsuit would play out. What he didn’t realize, perhaps somewhat naively, is just how intransigent the province would be. The tainted-water tragedy had quickly overtaken the political agenda, throwing the entire government and its ideology on the defensive. The Tories were in critical need of some brownie points on Walkerton. Their answer was the “compassion initiative,” as they dubbed it, its purpose two-fold: to score those points and to cut the fledgling class action off at the knees. To Attorney General Jim Flaherty, it made perfect political sense. The government would do something voluntarily for Walkerton without any admission of fault. Its response would be driven by compassion rather than by legal or financial considerations. Under the no-fault plan Flaherty hatched, people in Walkerton could claim financial compensation for illness or the death of a loved one without having to go the tortuous court route.
“This isn’t about legal liability, it’s the right thing to do,” Premier Mike Harris said. “The people of Walkerton should not have to go to court to get the help they need.”
Outside town hall in early summer, a small group of Concerned Walkerton Citizens, among them Jamie Smith’s wife, Stephanie, waited on the sidewalk for a meeting to end so they could ask Flaherty some questions. But when he emerged and the residents approached him, Bill Murdoch tried to steer him away. Although his Bruce-Grey-Owen-Sound riding had voted solidly Conservative, Murdoch had convinced himself that Walkerton was hostile political territory. He had already raised eyebrows in the town with his pronouncements immediately after Premier Mike Harris had visited back in May.
“That woman and a bunch of agitators were bussed in from thirty-five miles away,” Murdoch had opined to a radio station minutes after Veronica Davidson had shouted after Harris. “The same bunch that’s bussed around whenever Harris makes an election campaign stop.”
The more the media and town questioned whether Harris’s policies had played a role in the disaster, the more Murdoch dug in his heels. And the more Concerned Walkerton Citizens pressed for answers from the province, the more Murdoch tried to marginalize them with an antipathy that was visceral.
“It’s getting late,” Murdoch said as the group on the sidewalk attempted to talk to Flaherty.
“We don’t care how late it is,” someone said. “Lose some sleep.”
While some of the group talked to Flaherty, Stephanie Smith watched from one side. A young aide to the minister came over and made some small talk.
“You know, you guys should get T-shirts, just like after the ice storm, that say, ‘I survived the E. coli disaster.’ ”
Smith wanted to slap her but said nothing.
More than six seemingly endless months after he had issued the boil-water advisory at the height of the crisis, Dr. Murray McQuigge pronounced the tap water again safe to drink. It had been a mind-bogglingly painstaking process. Five kilometres of water mains had been replaced, a state-of-the-art filtration system installed at Well 7, while Wells 5 and 6 had been permanently decommissioned, the former more than a decade too late. The plumbing in each of the town’s 1,816 buildings had been disinfected more than once, and thousands upon thousands of samples had been taken and scrutinized for any signs of contamination. In all, it had cost about $15 million.
“I’ll come right to the point. I’m going to lift the boil-water advisory for Walkerton,” McQuigge said to a round of applause from the several dozen townsfolk who’d braved a brutal snowstorm for the occasion.
Up front, about a dozen town and other officials, including Mayor Dave Thomson, lifted glasses of water to their lips and ostentatiously took a sip.
“This day has been so long in coming that it almost feels anti-climactic,” McQuigge went on. “It may be anti-climactic, but it is a serious step in getting this town back to normal.”
“Today’s announcement means a gigantic burden has been lifted off our shoulders,” Mayor Dave Thomson was saying. “Today is a day for optimism.”
But there was little evidence of celebration. Around town, people collectively shrugged and carried right on drinking bottled water. The experts might have exorcised the killer bacteria but not the demons of fear and mistrust that haunted the town. And it was that mistrust that the class-action lawyers harnessed. At first blush, Flaherty’s compensation plan was a political masterstroke that would put the class-action lawyers out of the Walkerton business. But it was also doomed from the start. For one thing, acceptance of a settlement under the plan meant waiving all further rights to sue. That’s not unusual in the world of out-of-court settlements, but to a mistrustful citizenry, it was unacceptable. There were still people ill, children with seriously uncertain prospects, businesses on their heels. From the plaintiffs’ perspective, the plan put the wolf in control of compensating the chickens for the henhouse he’d just ravaged. While the lawyers were confident their suit had all the merits needed to succeed, they realized the real battle would be fought, at least initially, in the public-relations arena. People would vote with their feet. If they opted in droves for the government plan, the class action would be dead in the water. Strosberg hired an Ottawa-based research firm to conduct a series of focus groups in the town. The results were stark, if unsurprising: more than 80 per cent of the people said they trusted the courts, less than 15 per cent the government. From there, it was a no-brainer to come up with a message the lawyers would deliver in every contact with the people they sought to represent: “Whom do you trust? Do you trust Mike Harris or do you trust the courts?”
Still, Strosberg figured this was a case that could be settled fairly painlessly if the government chose to cooperate, but his attempt at negotiation was unceremoniously rebuffed. The combative Flaherty, an ambitious lawyer-turned-politician with hardline conservative views, was not about to be told what to do by a bunch of class-action lawyers, especially not by Strosberg, who’d once embarrassed him in front of others at a top-level meeting. But in making a decision that would only serve to drive the legal bills into the many millions of dollars, Flaherty appeared to have seriously underestimated the mistrust the Harris government faced in Walkerton. Perhaps he had badly overestimated the people’s desire for quick cash. Or possibly, he imagined the government could rely on its highly effective public-relations machine to turn opinions around. The government saturated the area with letters and ads extolling its plan, while taking various technical positions to delay the class-action proceeding for as long as possible. But at every turn, the class-action lawyers countered with their simple question: “Whom do you trust? Do you trust Mike Harris or do you trust the courts?”
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.