The (expensive)burden of truth

The burden of truth is a complicated concept. The philosophical approach deviates somewhat from the legal perspective. In a legal perspective the wronged party must demonstrate proof of the harm that was done.

From this paper: “From Permissive regulation to Preventative Design in Environmental  Decision Making” by M’Gonigle, Jamieson, McAllister and Peterman, Osgoode Hall law Journal (1994)

“Private citizens may have recourse to a number of common law causes of action to protect both their private interests and, indirectly, those of the environment. These include the torts of private and public nuisance, riparian rights, trespass, negligence, and strict liability. Of all the causes of action, however, only a public nuisance action might lead to a remedy for environmental damage per se (usually through the intervention of the Attorney General 38), as all the other causes of actions require the plaintiff to establish that a personal, proprietary interest has been affected. In such civil actions, the burden of proof is on the plaintiff to show that, on a balance of probabilities, health and/or private property has suffered as a result of the defendent’s actions. Environmental protection through the common law occurs as a by-product of such civil actions. The plaintiff may seek compensation by way of damages or may ask the court to grant an injection to prevent a potential, or ongoing wrong. Thus, the common law achieves environmental protection either by granting an injunction to deter the defendant from allowing the wrong to continue or by requiring payment, both of which act as deterrents to others who may undertake similar actions. 39”

In my situation, I must prove that there are gasoline vapours in my house, which originate from the improperly located vent pipes.

  • Air quality sampling, conducted by trained personnel : $2200.00 plus HST, per samples gathered on a single day

I contacted FLIR Systems, who manufacture the camera that makes gasoline vapours visible (“Optical Gas Imaging” is what they call it). To purchase a camera is extremely expensive, like close to a hundred thousand dollars or more. They have a distributor in Ontario, who offers a rental. However, the representative I spoke with could not answer my questions about whether an individual who was not a trained operator would be able to use the footage as legal evidence. It astonishes me that the TSSA and MOE or any of the Environmental Consultants I spoke with do not use this camera in their investigations.

–  FLIR Systems camera rental: $ 4500.00 plus HST per week

My vets could neither prove nor disprove my various cat’s illnesses as being a result of being exposed to concentrated gasoline vapours within my home, on multiple occasions. There is very little medical literature about gasoline vapour inhalation in a veterinary context (v.s. tests on lab mice or rats). A necropsy could provide information about what was going on in a deceased animal’s body (ie location and type of tumours, toxicology, etc.) . However, a necropsy could not indicate what caused the illness, unless it was a result of something like blunt force trauma or a mechanical obstruction.

– Necropsy, performed by a licensed veterinary pathologist : $ 900.00 plus the cost of transportation to Guelph, and cremation afterwards

With regards to my cat’s illnesses, while their symptoms can be documented, and if there is a cluster of unrelated cats in a household all having similar illnesses that are not the result of a specific food, or products used within the home, proving that their illnesses are a result of the numerous gas vapour infiltrations becomes much more challenging. Correlation is not causation, so the relationship between gasoline vapours and their particular illnesses must be proven, not presumed or suspected:

Anyone who has watched nightime t.v. dramas has seen the myth of the crafty, underdog lawyer who gathers valuable evidence that everyone else missed, and the courtroom gasps as the judge bangs his (95% his) gavel and finds the bad guys guilty.

It is my experience that life does not work this way.







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