Intervenor: Vol 25. No 3 & 4 July-December 2000

CELA Represents Concerned Walkerton Citizens at Inquiry

The Walkerton Inquiry, headed up by Commissioner Mr. Justice Dennis O'Connor, began its hearings on October 16th, 2000. CELA represents the Concerned Walkerton Citizens, (CWC) a group of over 500 members, which was formed in the community shortly after the Walkerton tragedy arose. CWC's mandate included calling for a public inquiry and then participating on behalf of the residents of Walkerton. Their concern is to both discover the contributing factors and root causes of the tragedy that their community continues to endure, as well as to ensure that no such tragedy is ever repeated in the Walkerton community or anywhere else in Ontario.

Mr. Justice O'Connor has structured the Inquiry into two phases; Phase I has two parts. Phase I is the evidentiary phase of the Inquiry; it will deal firstly, in Part IA with the most direct causes of the water contamination and resulting tragedy in Walkerton. Part IB will deal with the contribution of provincial policies and other broader institutional and systemic causes of the Walkerton events. Phase II of the Inquiry, which is to assist with recommendations for improvement, will be conducted in the form of study papers on a broad range of topics, which are to be commissioned by the Inquiry. Mr. Harry Swain has been appointed Chair of Part II and an advisory panel has been struck to decide upon the study paper topics as well as to commission and review the papers. Once published in draft format, parties with standing in Part II of the Inquiry, as well as the public, will have opportunities to comment, and there may also be responding papers prepared by some of the parties. Various other methods to solicit input will be pursued by the Commission, including roundtable discussions and public meetings at various locations throughout the province.

The Commissioner heard applications for standing in September. For Part IA, six parties were granted full standing, including CWC, the Community Walkerton Foundation, the Government of Ontario, the Chief Coroner of Ontario, the Municipality of Brockton, and the Walkerton PUC. Other applicants were granted limited standing, such as the Ontario Farm Environmental Coalition, which was granted standing for issues relating to farming and agriculture, and a coalition of environmental groups, which was granted standing relating to environmental issues relating to farming and agriculture. Others were granted standing related to their roles in the events leading to the tragedy, and yet others were granted special standing because of their unique perspective and potential assistance to the Commission. Examples of the latter case included the environmental coalition, a bargaining agents' coalition and the Association of Municipalities of Ontario. The standing decision also dealt with Part IB of Phase I and with Phase II applications.

The terms of reference for the Inquiry included provision for the Commission to recommend funding for participants in the Inquiry. Very limited funding is being recommended, pursuant to the Management Board Guidelines of the Ontario government. Included is some counsel funding for some parties, as limited by the Commissioner in his decision, and very limited counsel disbursements. No funding for expert witnesses to assist parties in preparation of their cases is being provided.

A unique aspect of the Inquiry, compared to civil litigation or administrative hearings is that the evidence is all the Commission's evidence. It is not an adversarial procedure insofar as parties calling their own witnesses at their own discretion. Instead, the Commission, through its counsel, determines the witnesses to be called and the documents to be introduced. Parties have had an opportunity, and will continue to have the opportunity to suggest to Commission counsel the witnesses, experts and documents that should be heard or admitted at the hearing. At the end of the day, it is up to the Commissioner to determine the witnesses to be heard. Nevertheless, some witnesses will have the opportunity to have their evidence led initially by their own counsel, especially; for example; witnesses who were directly involved in the Walkerton events. The Public Inquiries Act includes protection for witnesses testifying at an Inquiry, vis a vis subsequent civil and criminal proceedings. The Commission also benefits from search powers under that Act.

Because of the unique nature of a Public Inquiry, parties, for the most part, do not have an opportunity to bring their own expert witnesses forward, unless they can persuade the Commissioner that an important gap in the evidence or perspective exists, and the Commissioner gives leave for a party to call that evidence themselves. Otherwise, parties' participation will be primarily by way of cross-examination and submissions. However, expert witnesses are often very important to counsel in preparation of cross-examination, in preparation of submissions and recommendations, and in noting gaps in the evidence or documents or sources of information that should be considered in the hearing. Accordingly, CWC is fund-raising so that it can retain expert assistance through CELA for these purposes, to advise CWC on the evidence and to assist counsel. Other parties may have this expertise in-house, or may have the expertise on retainer for other purposes and can access it for the Inquiry as well. However, the importance of this kind of assistance for the residents of Walkerton cannot be under-stated, because a huge issue for them is the issue of trust in what the "authorities" and "experts" have to say. It is essential for them to thoroughly and carefully scrutinize, with the best available advice, the information that is being presented to the Inquiry about the causes of the tragedy that they continue to bear. Residents of small and large communities across the province will be watching and, we hope, benefiting from CWC's participation in the Inquiry.
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Theresa McClenaghan is a lawyer at CELA