Thirty years ago, computer geeks programmed and stored all data with punch cards. Many of those cards were printed in rented facilities on Commander Boulevard, Toronto, a street already famous for setting pollution precedents. As it turns out, the coloured stripe across the top of the cards used to be printed with the solvent, toluene. According to Monarch v. Axidata, a case released earlier this year, the punch card manufacturer stored its waste toluene in an unsuitable underground storage tank that was originally designed only for emergency spill containment. The toluene escaped, polluting several properties on Commander Boulevard. The result? Three lawsuits, two third party claims, four counterclaims, and nearly $4 million in damages, plus an entire flock of lawyers and consultants.
This case had enough complications for a soap opera or a law school exam, but it eventually came down to a dispute between the original card manufacturer, and a management buyout group that bought the division in 1986, when punch cards fell out of favour. After 318 densely worded paragraphs, Judge Frank ruled that the original manufacturer had printed 90% of the cards, had probably spilt 90% of the toluene, and should pay 90% of the cleanup costs and other damages. The buyout group, which spilt the last 10% of the toluene and took a long time to do the cleanup, were ordered to pay the remaining 10%. The landlords were cleared of responsibility.
The decision is a fascinating one for anyone engaged in complex, multi-party cleanups, where facts are unclear, decisions take forever, consultants can’t agree and more contamination just keeps showing up. And it’s a very encouraging one for plaintiffs. The judge took a refreshingly commonsense approach to the innumerable obstacles and objections that the manufacturer made, brushing aside lost documents, faded memories, delays and honest mistakes. She also sent a sharp reminder to consultants who lose their objectivity, sweeping away expert witnesses who strayed over the line into advocacy. And she reinforced the old saw, “polluter pays!”