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Ontario Water Quality, Public Health, and the Law, 1880-1930 By JAMIE BENIDICKSON, Faculty of Law,
University of Ottawa |
INTRODUCTION In 1882 a select committee of the Ontario legislature found that in three-quarters of the eighty municipalities that responded to its inquiries the water supply was being polluted by privies. Remedial efforts were virtually non-existent and disease was widespread. Legislators concluded that locally designated administrative officials were 'too subject to local influences to act efficiently' and called for a provincially appointed agency.1 Thus, in response to the apparent inability of individuals or the disinclination of local officials to address such public health problems as sewage and contaminated water supplies, a provincewide solution was elaborated in the form of a Provincial Board of Health (PBH).2 This essay examines legal dimensions of water quality protection during the period from c. 1882, when Ontario established a Provincial Board of Health, to c. 1930, when the board was dissolved and replaced by the rapidly evolving departmental structures of central public administration.3 The PBH and the local medical officials responsible to it campaigned persistently to accomplish their water quality objectives within a complex legal framework grounded in the common law of nuisance. Although it offered gratifying successes, the law was equally a source of frustration. Legislation facilitated the work of the PBH -- indeed, it was the formal source of the board's authority -- but it simultaneously constrained that authority within broader norms. Efforts to reshape the legal framework became one important element of the PBH's agenda. The overall legal framework for water quality emerged from the interaction of these public and private mechanisms applied in relation to a series of challenges in which public health officials often figured prominently. It is possible to discern at least three perspectives on the legal dimensions of the early public health regime and its relationship to Ontario water quality. To some, the legal and administrative controversies detailed here seem never to have occurred, with the result that, in their view, environmental protection -- a good thing -- originated only in the late twentieth century. While others acknowledge the efforts of public health officials, those efforts have sometimes been discredited or questioned as intrusive and perhaps illegitimate intervention by social regulators seeking to impose their own values on other sectors of the community. Measures taken were essentially those of control and their underlying objectives have been associated with the moral preferences and self-interest of middle-class and professional busybodies. From yet another perspective, the public health enterprise appears genuine in its ambitions, but ultimately ineffectual in the face of industrial forces that undermined its potential while other contemporaries remained oblivious to pressing needs, disregarding or underestimating the threat of pollution. This essay focuses on a sequence of public health challenges and their relationship to the legal regime, beginning with privies and sewerage systems, followed by municipal waste treatment facilities and the eventual need to safeguard drinking water supplies directly through such means as filtration. Concluding comments address the three perspectives previously noted: the existence, legitimacy, and effectiveness of the public health response to water quality problems in late-nineteenth- and early-twentieth-century Ontario.4 THE PRIVY PROBLEM The privy pit constituted a formidable challenge to health in late-nineteenth-century Ontario communities. In the transitional process that saw open countryside gradually absorbed within urban boundaries, animal wastes and manure also became pressing concerns for 'town folk.' Sewers and the crude drainage systems introduced to transport household wastes in a somewhat diluted form away from their point of origin frequently produced difficulties of their own. Contamination from privies, cesspools, and -- in several of the larger municipalities -- from sewage outfall pipes was significant and worrisome. In Toronto, as the 'modern conveniences' of water closets and drainage took hold, increasing pollution of the harbour was apparent. 'The water front of the whole city ... becomes a source of unpleasantness and of danger to the public health ... [A]s the water supply pipe from the lake is laid on the bottom of the bay leaks may at any time contaminate with sewage the city water.'5 Common law actions, generally alleging nuisance or an interference with riparian rights, provided recourse against some of the more obvious threats to water quality. In Park v. White, privy pits on premises adjacent to the plaintiff's property were recognized as a nuisance. In addition to paying nine dollars in proven damages, the defendants were required to fill in the privies or otherwise remove the nuisance.6 In a later action, Justice Middleton issued an injunction against the Town of Cobourg, whose sewers discharged untreated human waste into a waterway known as Factory Creek that flowed through the grounds of plaintiff hotel owners.7 On the other hand, a private litigant's attempt to encourage the London Lunatic Asylum to abate a sewage nuisance in the vicinity of the Thames River foundered on the court's unwillingness to produce an order appearing to depend for its implementation on an unauthorized expenditure by the commissioner of public works of some $30,000.8 Vice-Chancellor Blake remarked that the commissioner's duty 'is to manage his department as well as that can be accomplished, using the means which the Legislature places at his disposal; but beyond that he is not bound to go.' 9 Chancellor Spragge, who was firmly persuaded that a 'very serious character' of nuisance existed, nonetheless accepted the thrust of Blake's position. He found it hard to imagine the expenditure of so considerable a sum essentially for the purpose of shifting the nuisance from one location to another by extending the asylum's drain to the Thames River itself. The only potential benefit, Spragge remarked, would be to transform 'a gross private nuisance, to a gross public nuisance,' with the result that the commissioner of public works would be authorized to abate it without obtaining prior legislative approval for the specific expenditure.10 The Provincial Board noted such cases as well as interesting local prosecutions and reported encouragingly in 1884 that 'the reading of the law has been so clear that verdicts against offenders have been obtained and remedies have been effected.' 11 Several local boards claimed great success in eliminating privy nuisances and in controlling cesspools and other forms of contamination. But any sense of satisfaction and accomplishment must have been short-lived. The need for ongoing legal proceedings to deal with waves of individual offenders was common in certain communities. Moreover, the London Asylum case hints strongly at the broader public or community-wide implications of concentrated urban populations and the special problem of imposing standards on public institutions and facilities, or in cases of public rather than private injury. In this context there was a need for systematic administrative responses. The PBH repeatedly endeavoured to persuade local councils to act systematically and methodically to deal with the sewage of expanding municipalities. 'The day is past for box drains, and drains pretending to be sewers, which in more than one town and village in Canada have been found to run up-hill, as also for the filthy collections which too commonly exist in our backyards.' 12 Citing Toronto (where civic officials had allocated a mere $500 to the local board of health, which had responsibilities for sanitary conditions affecting nearly 100,000 people) as an egregious example of municipal penny-pinching, the PBH lamented the limitations of municipal funding.13 The inventory of problems to be addressed included an array of nuisances, defined initially in legislation with reference to common law principles as 'anything which is injurious to health, or which is materially offensive to the senses, or which interferes with the enjoyment of life and property.' 14 However, the statistical record suggests that local boards of health generally left remedial activity to those most directly affected, relying heavily upon inspections, educational measures, and warning notices to secure abatement measures without going to court. In Toronto, in 1889, 6,000 complaints gave rise to 18,000 visits by eight sanitary police officials, leading to 1,400 notices and 5,500 post-notice inspections. Of 234 prosecutions initiated, 170 were withdrawn on the grounds that the necessary work had been done. Two thousand privies were cleaned, 113 were repaired, and 143 were closed.15 In 1893, the year of the Park v. White litigation, there were 3,473 privy pit complaints. Two thousand three hundred and sixty-nine were abated on notice; 473 were abated on prosecution, and in 222 cases officials concluded that the complaints were unfounded.16 In the following year, on the basis of 1,474 complaints about privy pits, only ninety proceedings were instituted in police court.17 For their part provincial public health professionals (despite their early enthusiasm) soon grew sceptical of the legal process. It seemed excruciatingly difficult to establish at trial 'not only whether this or that condition is injurious to the public health, but whether it is materially offensive to the senses, or interferes with the enjoyment of life and property.' The board lacked confidence in the capacity of the jury to reach decisions that would be considered appropriate from the perspective of its own expertise. 'To make the question of whether a man with senses rendered obtuse is or is not nauseated by a smell a criterion of the existence or absence of a nuisance is as crude as was trial by fire in old Saxon times, since the guilt or innocence of the accused was tested by his power to endure pain.' 18 The Toronto situation was sufficiently difficult to resolve on a case-by-case basis that local officials resorted to a by-law prohibition as a more comprehensive response to privy pits.19 Other Ontario communities endeavoured to address local problems of pollution in the late nineteenth and early twentieth centuries as population expansion and industrial development placed increasing pressure on water quality.20 The problems of pollution, including sewage contamination, were by no means confined to urban centres. Small, transient, but nonetheless densely populated lumber and mining camps in the north presented special difficulties, and it was reportedly common for the summer residents of the Muskoka district to 'draw their water from the same bay or locality into which the closets drained, and the kitchen slops ultimately found their way.' Two doctors investigating the situation urged cottage owners to initiate 'some system to prevent the pollution which is of so widespread a character.' 21 This was an important but not unique call for preventive measures, suggesting the desirability of avoiding sewage nuisances rather than trying to abate them after the fact. SEWAGE REMOVAL, DUMPING, AND DRAINAGE Sewage systems represented one approach to nuisance prevention. And indeed, municipalities around the province shifted to collective systems of sewage removal, eventually adding treatment and management procedures. The transition, however, did not bring an end to public health concerns or to judicial proceedings, for the legal actions that had once been contemplated in relation to individual polluters were increasingly redirected against public institutions: the municipal operators of sewage removal and waste treatment facilities. A charge of criminal nuisance against the Town of Walkerville for polluting the Detroit River where it flows from Lake St Clair to Lake Erie between Ontario's Essex County and Michigan led to an indictment on 12 April 1893.22 The consequence of Walkerville's sewerage program, according to the grand jury, was that the waters, having been polluted with refuse, were 'corrupted, fouled, offensive and unhealthy to the great damage and common nuisance' of residents nearby and other users. Within a few months, The Queen v. Walkerville was settled according to a detailed covenant worked out between Walkerville and the water commissioners of Windsor concerning the installation of a new water intake pipe for the joint use of the two municipalities.23 A similar controversy erupted elsewhere, when, in 1908, the Township of Guelph, having lost patience with the City of Guelph's inattention to contamination of the River Speed, resorted to measures under the Public Health Act to have the nuisance abated through the construction of a filtration bed.24 The local Board of Health notified the city of the proposed course of action and remained wholly dissatisfied with the municipal claim that any basis for complaint could be eliminated by the simple expedient of installing a new septic tank. The local police magistrate expressed hesitation about hearing the matter, arguing that such a complaint was more properly the subject of an indictment under the direction of the attorney general or a judge at the assizes. However, the county Crown attorney appeared anxious to proceed, hoping by either means to get the critical testimony of the provincial health inspector onto the record. This, in his view, would 'ventilate' the complaints sufficiently to induce the city to initiate a more appropriate and effective response.25 Toronto was not immune from pollution controversies arising from local drainage practices. In the aftermath of various 'improvements,' the condition of Ashbridge's Bay gave rise to numerous but largely fruitless legal proceedings. The cause of the complaints was graphically described in a court judgment: 'Sewage and manure and refuse from the cattle byres, where some 3,000 head of cattle were kept and fed upon 'slops' from Gooderham and Worts Distillery, were discharged into the marsh.' 26 Justice Middleton indicated delicately that the resulting condition 'can be understood by perusing the reports of the health officers put in as exhibits.' 27 In 1892, the situation, referred to judicially as 'an incipient pestilence,' provoked the Ashbridge's Bay Property Owners Association to threaten litigation and the PBH to recommend abatement measures including dredging, channelling, and alternative disposal of animal refuse.28 Gooderham and Worts took remedial measures, but the City of Toronto, with litigation pending against it, was unsuccessful in its efforts to open a channel between Ashbridge's Bay and Toronto Bay to flush the marsh.29 The unsanitary condition of Ashbridge's Bay was the subject of a negligence claim (possibly a test case) on the part of a resident whose children had experienced severe illness as a consequence, he alleged, of the contaminated state of the marsh. Irregularities associated with the premature dispersal of the jury threatened to undermine the integrity of the deliberations, but the bottom line reassured the city: 'the jury find that the illness was not caused by any nuisance created by the defendants.' 30 After construction -- first of a railroad switching station and then of city sewers -- interfered with navigation in Keating channel on the lower Don River, Richard Schofield experienced repeated setbacks in a frustrating effort to maintain water access to his boat works. Schofield complained to Dr Hastings, Toronto's medical health officer, about 'the rotten conditions of the water front around our premises, due to putrid matter coming from the sewers' that formed two breakwaters on either side of Schofield's land. The sewers, Schofield protested to no avail, 'effectually prevent this matter from circulating and it all lodges in and around our wharves and sheds with the result that half of our employees are laid up at the present time.' 31 An elaborate riparian claim against the city and the Toronto Harbour commissioners was dismissed, largely on the basis that Keating's channel was an artificial 'cut.' Schofield, therefore, owned no lands abutting navigable water and had accordingly never been a riparian owner.32 In 1913 Schofield joined other Toronto residents to launch proceedings against the city over the deteriorating condition of Ashbridge's Bay.33 On the advice of W.E. Raney, KC, the Schofield group applied for leave to bring common nuisance charges under the Criminal Code34 against the Corporation of the City of Toronto; specifically, they sought the court's permission to proceed by way of indictment rather than on the basis of a summary trial before a police magistrate. This choice of procedure was necessary, Raney insisted, because the Criminal Code made no provision for summary conviction of corporations in cases of criminal common nuisance, although it did so explicitly in relation to other offences for which summary proceedings were established as a procedural alternative.35 What had seemed to Raney an inescapable conclusion failed to impress Chief Justice Meredith. In insisting that the matter could only enter the judicial stream via the police court, Meredith asserted the traditional virtues of criminal procedure, which requires a thorough preliminary investigation of indictable offences to ensure that the facts are properly brought to light. He would not alter the ordinary pattern of proceeding in the absence of some compelling reason to do so: 'There is no royal road for anyone; every one must take the common road up to this Court.' 36 As examples from numerous Ontario communities demonstrated, the common road up to court was beset with obstacles and hard on the feet of those who trod it in the hope of safeguarding water quality or controlling sewage nuisances. An important alternative to private litigation at common law, with its procedural and financial pitfalls, or to formal criminal prosecutions, where technical and evidentiary requirements might prove insurmountable, was regulatory action against those suspected of violating public welfare norms. This option was recognized in the legislative and regulatory codes of a rapidly developing administrative state. The PBH welcomed a series of legislative measures bolstering the formal authority of health officials in their campaign against pollution of public water resources.37 In 1906, a sternly worded prohibition appeared: 'No garbage, excreta, manure, vegetable or animal matter or filth shall be discharged into or be deposited in any of the lakes, rivers, streams or other waters in Ontario, or on the shores or banks thereof.' 38 In a significant revision of the Public Health Act, officials were empowered to develop regulations for the purpose of preventing pollution in the province's lakes, rivers, streams, and other inland waters.39 Perhaps most significantly, for purposes of the act, nuisance was redefined as 'any condition ... which is or may become injurious to health or prevent or hinder in any manner the suppression of disease.' 40 Regulatory and approval powers with respect to municipal water and sewage systems were included in the fortified arsenal of public health measures. The public health regime also included a model municipal by-law providing avenues of recourse against problems brought to the attention of officials through the complaints process or identified through systematic inspection procedures. The practical and symbolic significance of all these measures would be publicly tested. For example, the Village of Weston employed the model Public Health Act by-law to prohibit placing or unloading any car containing manure on any portion of railway premises in the community. Charges were laid against a number of defendants for unloading manure from a railway car to a wagon for subsequent removal. The case for the prosecution was that '[t]he removal of manure is itself a matter prejudicial to public health as the effect of the tossing and pitching the manure from the car to the waggons might set loose disease germs or noxious matter.' 41 Justice Rose rejected defence arguments about the need to show actual harm to public health and that the by-law meant unloading to leave on the railway premises. He concluded that the actions of the defendants indeed fell within the scope of the prohibition on unloading manure and accepted the public health argument advanced by the prosecution.42 In this instance, a wide reading of the Weston by-law supported enforcement efforts, but regulatory officials continued to face obstacles. The experience of Sault Ste Marie provides some indication of the challenges. Several years after a severe typhoid outbreak in the rapidly developing northern industrial community, public health officials actively campaigned against unsanitary situations.43 In 1912, for example, several local businesses and individuals were charged with failing to maintain a proper cover on a receptacle for manure.44 In addition, the Sault Ste Marie Coal and Wood Company and the New Ontario Dock and Coal Company were charged with dumping manure into the St Mary's River, contrary to the broadly worded prohibition of 1906. In the midst of an outbreak of diphtheria, local public health officials complained about enforcement difficulties. As reported by Dr A.S. McCaig, medical health officer at the Salute, 'In two cases where we had offenders up for dumping manure into the river we could not get a conviction from the Magistrate although both parties pleaded guilty.' 45 The complaint progressed up the hierarchy to the desk of the provincial chief officer of health, and then crossed over to the attorney general's department before finding its way back down to the district Crown attorney, who claimed personally to 'know nothing of these prosecutions under the Health Act as same are usually attended to by the City Solicitor.' 46 However, the Crown attorney identified a police magistrate, a lawyer named Andrew Elliot, as a source for a full account of the situation. Elliot explained that neither defendant had actually pleaded guilty. In one case, a water pipe used for fire protection purposes ran out to the end of a very long dock. The magistrate accepted the defendant's evidence that 'this pipe was boxed in and must be protected from frost' and that 'it was absolutely necessary to pack the box around the pipe with manure.' In the second case, also prosecuted by the city solicitor, the magistrate -- at the prosecution's suggestion -- inspected the defendant's premises and neighbouring properties, regrettably in the absence of counsel for the defendant. This procedural mishap had the unfortunate legal consequence of rendering a conviction impossible to sustain. On the same day that Elliot sat down to deal with the inquiry initiated by health officials he had to face up to more public criticisms. In relation to critical coverage by the Sault Star of his decisions in another set of pollution prosecutions, Elliot referred to the police court records to provide a detailed history of the proceedings, including the apparent reluctance of the sanitary inspector to respond in open court to a defendant's testimony. As a consequence, one case was dismissed and charges against three other companies were withdrawn when the defendants demonstrated, following a brief adjournment, that they had complied fully with the relevant regulations. When cases relating to unsanitary conditions under the Public Health Act reached the police court, as they seemingly did with some frequency, it was Elliot's practice, apparently approved of by the Crown attorney, to grant adjournments to permit defendants to remedy the situation. Upon receiving satisfactory assurance that the offence would not be repeated, Elliot would dismiss the charges. He concluded that this well-established practice was the basis of 'the insinuation that there was no conviction upon a plea of guilty.' In a further effort to diminish any adverse effect that the Sault Star coverage of his performance might have on the deputy attorney general's assessment of him, Elliot accused local health officials of having demonstrated a 'ludicrous desire for notoriety.' He referred to the newspaper's coverage of Board of Health meetings as having reached the point where the paper was known locally as the 'Bulletin of the Chairman of the Board of Health.' Perhaps these rather dismissive remarks are an indication that health officials were pursuing their mandate with some diligence. Elliot's observations may have been largely defensive posturing, but they do suggest lack of enthusiasm for the entire apparatus of local health protection measures on the part of a minor legal official with significant influence over the utility of prosecutions as a mechanism for effecting environmental improvements. Other incidents more positively indicate the potential of a determined environmental and public health bureaucracy to achieve its objectives given the support of the judiciary and the legislature. In 1914, Dr John W.S. McCullough put Ontario residents on notice that anyone contravening the Public Health Act's pollution provisions would be 'prosecuted to the full extent of the law.' In 1922, Deputy Attorney General Edward Bayly received a delegation of Milton area farmers. They protested that pollution of Sixteen Mile Creek by the town and certain local industries had harmed their cattle but appeared to fall outside the scope of the public health regime. The local Crown attorney, having been instructed to consider indictments for nuisance, corresponded with the parties who were subject to complaints. One company reported that it had recently installed a filtering system in response to the recommendations of public health officials, while the other denied that its waste water was in any way harmful, adding for good measure that 'the little frogs and fishes thrive in the stream immediately below our disposal plant, which of itself would possibly upset any contention that we were polluting the creek.' Bayly, who had accumulated a good deal of experience with similar views, asked the Crown attorney to invite the company 'to take this a little more seriously.' At this point, however, the matter temporarily came to rest while the board sought an enlargement of its jurisdiction.47 The fact that W.E. Raney, the man who had attempted to prosecute Schofield's complaints against the City of Toronto, had become attorney general in the United Farmers of Ontario administration, no doubt facilitated the passage of legislation enhancing the powers of the PBH in the interests of agrarian water users. Amendments to the Public Health Act in 1923 authorized the PBH to make inquiries on behalf of riparian proprietors concerning 'polluting material of any kind' that interfered with their ordinary water uses and to report on remedial measures 'in respect to any alleged injury or invasion of right as it may deem just.' 48 Very shortly after the passage of this legislation the board made such an inquiry in the Milton area and reported with recommendations on remedial measures. Not long after that, on the application of one of the farmers affected by pollution of the creek, the Ontario courts declared the PBH's report and recommendations to be fully enforceable. Justice Orde took the opportunity to remark: 'The discharge of waste materials into public streams is not to be encouraged.' 49 Nice words, of course, but the PBH was actually more anxious to learn how actively it could discourage such discharges. An opportunity to test the strengths of administrative authority under the revised statutory nuisance provisions arose in 1918, when the Waterloo Board of Health sought to enforce a local abatement order against a trio of offenders: the City of Kitchener, a business provocatively operating as the Riverside Garbage Disposal Company, and a land owner, Campbell, who gave his name to the case.5O When these three parties disregarded the Waterloo board's order of abatement and removal concerning garbage from Kitchener that had been deposited by Riverside near a creek on Campbell's property draining into the Grand River, local officials called upon the PBH to investigate. The latter confirmed the presence of ashes, metal and enamel wear, and kitchen wastes, as well as decomposing animal and vegetable material along the creek bank. The board declared the situation a 'most insanitary one, a serious nuisance, and extremely dangerous to the public.' 51 The local Waterloo board then applied to the Supreme Court of Ontario for an order to remove and abate the nuisance pursuant to a provision authorizing a judge to make such an order 'upon the report of the Provincial Board or upon such further evidence as he may deem meet.' In upholding a court order issued against Kitchener, Campbell, and Riverside, the court of appeal was unanimous in declining to open up the question of the existence of a nuisance. 'The Act,' stated Chief Justice Mulock, 'confers jurisdiction upon the Provincial Board of Health to determine that question, and there is no jurisdiction in the Court to try that question of fact.' 52 Subsequent decisions followed the Waterloo holding in this respect, although under a strict reading of the legislation the chief officer of health, an official otherwise empowered to perform the duties of the board between meetings, was not permitted to exercise the PBH's power in relation to nuisances.53 MUNICIPAL SEWAGE TREATMENT, HEALTH OFFICIALS, AND THE COURTS Municipal sewage collection and treatment facilities represented the next generation of domestic waste technology. The innovations may have reduced conflicts between immediate neighbours, but larger concerns about environmental and public health risks immediately emerged. The new municipal sewage treatment operations received a good deal of attention from public health officials who had supervisory responsibilities; several facilities eventually became the subject of litigation. Shortly after the First World War, only about one in three of Ontario's 284 organized cities, towns, and villages had sewerage facilities.54 Frederick A. Dallyn, sanitary engineer for the PBH, believed the time was right for the province to suggest to the municipalities means of handling sewage as well as for improving their water supply. Dallyn insisted that smaller municipalities were 'keenly concerned' about the situation but as they lacked local engineers, no steps were being taken to assess the practicality of remedial alternatives. Assuming that some initiative was taken, Dallyn outlined further issues to be considered. Would the PBH be content to discuss generalities and ultimately to generate a little business for consulting engineers, or would it wish to furnish each municipality with a plan and a general cost estimate, either at no charge or on the basis of some formula for cost recovery? Given some provincial support, Dallyn argued that the engineering department might (without waiting for civic initiatives) collaborate with local health officers to campaign for improved sewers, treatment facilities, the extension of water systems, and purification processes -- especially in the smaller municipalities. As an example of the difficulties that had to be overcome, the provincial sanitary engineer outlined the situation at Kincardine, on Lake Huron's eastern shore, where the mayor was anxious to install sewerage facilities.55 As Dallyn explained, 'their desire is to sewer one little section of the town and drain the same into a septic tank, allowing the effluent to discharge directly into the river.' On a recent visit he had observed 'very little flow of water in the river and in some places it was practically dry.' In such circumstances, almost no dilution occurred during the summer months. Accordingly, Dallyn cautioned against permitting the town to discharge untreated effluent and against a partial or patchwork solution. As the provincial sanitary engineer explained, a previous attempt to implement a comprehensive scheme had foundered: 'unfortunately the by-law was defeated by the rate-payers principally owing to the fact that they had not consulted the provincial board of health.' The provincial sanitary engineer sought permission to visit England to evaluate and possibly to order a recently patented centrifuge for demonstration purposes.56 The technology was intended to 'change the present methods in dewatering sewage sludge so that the material can be handled without a nuisance.' The provincial sanitary engineer thought that such a machine (estimated to cost $3,900 for a large model or $2,000 for a smaller one of the same type) could also be applied to waste from canneries and wool-scouring plants, where existing solutions were prohibitively expensive. Although he actively encouraged municipalities to take appropriate measures and offered advice, the provincial sanitary engineer seems not to have had a great deal of formal authority to impose any specific measures on unwilling local governments. Nevertheless, having previously addressed the privy problem, health officials campaigned for improvements in municipal sewage and water systems. Litigation was not central to the official strategy, but the evidence, opinions, and support of health authorities were often crucial to the efforts of other parties to defend water quality in court. In addition, the PBH had to defend its jurisdiction against attacks. Ashbridge's Bay and the Courts In 1908, after years of debate, Toronto approved construction of an interceptor sewer system to transport sewage for treatment in settling tanks at Ashbridge's Bay.57 Construction of the sewer system and a treatment plant on Morley Avenue soon got underway. Completion of the undertaking in 1913 was generally hailed as a major advance, but plans for the sewage treatment plant had been under attack from east-end residents from the outset. Complaints from residents and deputations to city officials produced expressions of sympathy and triggered municipal investigations into the plant's operation, but they failed to bring about improvements. City residents who had been adversely affected by the construction and operation of the new facility embarked on legal action. Samuel E. Fieldhouse, a food, confectionary, and ice cream merchant, had the misfortune to carry on business from premises just opposite the lakeshore location of the Morley Avenue sewage disposal plant. He was one of those who had petitioned civic officials to remedy the situation, but when minor modifications failed to produce satisfactory improvement Fieldhouse took civil action against the city in November 1915, alleging nuisance and negligence in the construction and operation of the plant.58 He specifically charged that 'the said nuisance and pollution of waters is dangerous to public health,' that it had destroyed his business, and that it had rendered it 'unbearable' to live on the premises. Fieldhouse, claiming special damages, also sought an abatement order against the city and an injunction to bring the nuisance to an end.59 The city denied the claim, arguing that care had been taken in the construction of the works, and that their operation represented a statutory duty which it was obligated to perform. Municipal officials also asserted, somewhat problematically as it later emerged, that plans had been approved by the PBH.60 Despite Toronto's formal denial of legal responsibility, the Fieldhouse claim was amply supported by municipal documentation. Certain municipal officials acknowledged the existence of the nuisance, and the municipal board of control went so far as to investigate possible claims against the experts from New York and Birmingham who had advised on the Morley Avenue plant. That specific inquiry produced a sobering response from Toronto's commissioner of works, who concluded 'that the advice of the experts, relative to sludge disposal was not followed, and the condition they foresaw if sludge were deposited contiguous to the premises, has eventuated.' 61 Moreover, whatever approval that provincial health officials might once have expressed for the city's plans had evaporated. A provincial health inspector (after effectively conducting a raid on the plant) unhesitatingly asserted that the complaints were 'well founded, as the pollution of the atmosphere by this plant cannot help but be a nuisance and menace to the health of the nearby residents who are compelled to breathe it.' For good measure, he added, 'Undoubtedly some different method of treating and disposing of the sludge is required and should be insisted upon without unnecessary delay.' 62 Civic inquiries about means to eliminate the problem identified a solution with estimated costs of approximately six million dollars. There was little enthusiasm to proceed with such costly remedial action, especially in wartime, and the city was of the opinion that there was actually no adverse impact on the drinking water supply. A universal 'do nothing' argument also emerged in the form of the proposition that even if the six million dollars were to be spent, 'new discoveries or experiments in treatment might soon render the whole plant out of date.' 63 Having at least engaged the city's attention, Fieldhouse moved elsewhere in Toronto, though he retained an interest in the proceedings that continued to bear his name. Given his removal from the immediate vicinity, as well as some uncertainty concerning the entitlement of a private plaintiff to an injunction rather than mere damages, in the summer of 1916 Fieldhouse invited Ontario's attorney general to join the proceedings as co-plaintiff. After looking into the matter 'pretty thoroughly' Deputy Attorney General Edward Bayly concluded that this was a 'reasonably proper' situation for the attorney general to be added. He recommended that consent be given to add the attorney general if the applicants undertook to assume responsibilities for all costs incurred. When the matter came before the master in the form of Fieldhouse's application to add the attorney general as a party plaintiff, the Master 'seemed indisposed' to follow a precedent along these lines and almost dismissed the motion.64 Eventually, two individuals working or living near the city's sewage disposal system were joined as plaintiffs, but by the time the matter came before Chief Justice Mulock for trial in December 1917 they too had been forced to move away. The 'Big Odor' case, as the Toronto Daily Star labelled the proceedings, was a cause célèbre. One hundred and fifty witnesses were assembled while 'blueprints without end festooned the judicial desk.' Mulock took an active part in the trial, reportedly, at one point, offering the city his services as a sanitary engineer on the principle that anyone could do a better job.65 On another occasion he rebuked counsel for the city with the observation: 'This can't be tolerated; you are emptying more faecal matter into the lake than you originally contemplated.' 66 Mulock identified two sources of offensive odours: concentrated sewage (sludge) that was allowed to settle on a nineteen-acre disposal site and effluent drained off through a defective and inadequate outfall pipe and a storm overflow line to Ashbridge's Bay. In response to the city's defence that the sewage treatment facility had been authorized, the chief justice explained: 'They have statutory authority to establish a sewage plant, but no authority to create a nuisance by its operation; and inability to operate it without causing a nuisance does not, in my opinion, furnish an excuse for their creating a nuisance.' He continued: 'While I am of the opinion that the operation of the plant causes a nuisance, and the absence of negligence would not furnish a defence, I think the facts show that the nuisance is traceable largely, if not entirely, to negligence.' 67 The trial result was precisely what Fieldhouse had sought and what the city had feared: in addition to two thousand dollars' damages for Fieldhouse, the plaintiffs secured an injunction prohibiting the city from operating the plant so as to cause a public nuisance and an abatement order requiring remedial action by 1 May 1918. When the city appealed the negligence finding and reasserted statutory authority as a defence, the Ontario Court of Appeal confirmed the trial judgment. Toronto's longstanding failure to repair the deficient outfall pipe was clear evidence of negligence. In addition, members of the court carefully reviewed the requirements of the defence of statutory authority in the context of municipal construction of sewage facilities under the approval of the PBH and concluded that the defence was not available to the city. Toronto had neither passed a by-law to authorize the installation of the Morley Avenue sewage plant nor obtained approval from the board for the facility it established. There had been by-laws, of course, though nothing introduced in evidence indicated by-law approval for construction. Significantly, although some plans submitted to the PBH received acceptance in 1908, important modifications were made in the actual implementation of the sewage facility as completed in 1913. The Public Health Act required municipalities contemplating the construction or extension of a sewage system to seek approval from the PBH. In turn, the PBH was charged with reporting as to whether the proposed work was 'calculated to meet the sanitary requirements of the inhabitants of the municipality and as to whether such sewer or system of sewerage is likely to prove prejudicial to the health of the inhabitants of the municipality or of any other inhabitants liable to be affected thereby.' The PBH could require amendments, impose terms and conditions 'in the public interest,' and modify such conditions from time to time.68 It is clear that Toronto municipal expenditures on sewage facilities and water treatment increased substantially in the early decades of the century,69 but it is somewhat more problematic to link specific remedial action with the Fieldhouse litigation.70 In fact, while a decision on the appeal was pending, the city attempted unsuccessfully to settle the action and an official attributed the difficulty to 'the uncompromising attitude of the plaintiff.' 71 At the same time, that is, before the unfavourable appeal decision, Toronto council decided to petition for provincial legislation that would retroactively authorize the operation of the sewage treatment facilities. A few months later, civic officials experienced second thoughts and the application was reconsidered.72 However, as of 30 April 1921, a master reviewing Fieldhouse's entitlement to damages from the date of the trial to the date of abatement fixed the amount at $3,820, noting that that long-awaited date had not yet arrived. WATER SUPPLY AND TREATMENT More or less at the same time that they moved to address privy contamination through closures and to eliminate sewage pollution with treatment, municipalities intervened actively to ensure the supply of clean water to their inhabitants. New technology, in terms of filtering, sedimentation, and the addition of chemicals, was utilized to safeguard water quality. Once again, however, legal proceedings in which the influence and authority of public health regulators was tested were required because more than a few communities resisted the expense. In the nation's capital, a singularly unhealthy set of circumstances had threatened water quality for years. The Ottawa River was mistakenly, perhaps perversely, presumed to be pure, and civic officials declined to spend funds to clean out a public well on Stewart Street in which a dog had drowned. Recognition of the linkage between health and contaminated water supplies was slow in coming.73 By 1913, a consultant's report recommended that Ottawa draw its water from Thirty-one Mile Lake, Pemichangaw Lake, and Long Lake in Quebec's Gatineau Hills. Provincial and federal statutes were enacted to facilitate the project, and one municipal council eagerly passed a by-law to fund the new waterworks. Irate ratepayers succeeded in having that by-law quashed74 and a virtually identical successor, which the city claimed it had been compelled to enact by order of the province's chief officer of health, met the same fate. Justice Lennox found the consultants' study insufficiently developed in terms of planning detail to receive PBH approval, but he reflected generously on the potential scope of the board's authority. Assuming the proper steps were followed, and notwithstanding the protests of 'any majority' of citizens, Lennox concluded that the chief officer of health 'has the power to compel a small community like Ottawa to assume a burden of $8,000,000 or for that matter, of $13,000,000 or more.' He admitted that 'this is a long step from government of the people by the people,' but concluded nevertheless that 'in view of the criminal negligence of some municipalities, it cannot be said that the provisions of the Public Health Act are too arbitrary or drastic in this regard.' 75 In 1914, following the election of a new city council, Ottawa ratepayers formally expressed their continued preference for water drawn from the Ottawa River -- an industrial thoroughfare for the lumber trade of the nineteenth century76 -- and filtered locally over the more costly scheme to deliver uncontaminated water from Quebec. But when the actual plans for the less costly pumping, filtration, and chlorination of river water reached the PBH under a statutory reference, that body unanimously refused to approve the scheme. The PBH observed that the Ottawa River was 'beyond any question, a polluted source of supply at all points in the vicinity of the city of Ottawa.' Accordingly, the board concluded that it would not be consistent with its duty to the citizens of Ottawa or to visitors to the national capital to 'countenance the use of water which, after mechanical filtration, constantly requires chlorination, when a pure and adequate supply, requiring no treatment whatever, may be readily procured.' Ottawa's incoming civic administration took exception to the board's conduct and applied successfully for an order of mandamus to compel the PBH to address its responsibilities in relation to the river scheme. Although Justice Middleton agreed that the PBH had exceeded its authority, he offered an assessment of its status that again reflected importance if it did not confer power: the board, he observed, is not 'a mere emanation of the Crown' but rather a body created to discharge 'important administrative and quasi-judicial functions.' 77 This particular skirmish was not an isolated incident, a one-time-only regulatory clash between local politicians concerned with the practical realities of municipal finance and a remote provincial agency intent on imposing abstract and artificially high standards. The need to address drinking water quality in the nation's capital had been pressing for half a decade, and it had been particularly acute since the deaths in 1911 and 1912 of 174 people in successive typhoid epidemics. With the outbreaks of disease attributed to pollution from the untreated sewage of the community of Hintonberg flowing down Cave Creek to Nepean Bay, where it entered the city's faulty supply pipe, the situation was urgent. Nevertheless the PBH found itself struggling to impose a high quality but capital-intensive plan against the resistance of local politicians who baulked at the cost when compared with the alternative of filtering and chemically treating water from the Ottawa River. At a point when the PBH once more seemed close to succeeding, a reassessment of the city's water volume requirements for fire-fighting purposes conclusively removed the Gatineau lakes plan from contention.78 Ottawa's resistance to sanitary expenditures was certainly not unique. When a 1917 investigation of water quality at Kingsville on Lake Erie some twenty miles east of the Detroit River produced evidence of 'gross pollution' traceable to town sewage and industrial contamination, provincial public health officials recommended remedial measures. The chief officer of health advised the town clerk that chlorination and filtration were needed on the intake side, as well as sanitary sewers and some basic sewage treatment measures. To avoid misunderstanding, he explained that the order was made pursuant to the Public Health Act. Provincial officials continued to follow up with Kingsville representatives, including the local health officer who had actually endeavoured to have the order rescinded. This produced a concession to the effect that the chlorination requirement might be waived if the town proceeded with filtration. After further inspections, and following additional pressure from the provincial level, Kingsville installed filtration facilities and secured PBH approval for its water supply system in 1922. At the same time, however, the board's sanitary engineering division continued to urge chlorination in case the filtration system should fail. The Kingsville story is known because some years later such a mishap did occur. When the intake pipe deteriorated and town officials introduced an unauthorized drainage ditch, typhoid struck Kingsville. Among nearly fifty victims of the disease at least one elderly resident died, and her husband successfully sued the town. By the time of trial, very soon after the first reported cases, provincial public health officials had implemented chlorination and a permanent facility was in place shortly thereafter.79 CONCLUSION Various commentators have questioned the existence, legitimacy, and effectiveness of an earlier generation of Ontarians' regulatory efforts to protect water quality. Each of these lines of criticism invites some concluding observations. Insofar as the existence of a regulatory effort is concerned, ample evidence exists of turn-of-the-century attempts to safeguard water quality through inspections, controls, approvals, dissemination of standard practices, and so on.80 The PBH had an expert staff that supported its approval powers, and a regime of prohibitions was used to promote abatement. It is thus somewhat misleading to imagine -- as observers sometimes do today -- that our's is virtually the first generation to fight pollution systematically.81 Amongst those who have acknowledged earlier concerns with pollution, there is an inclination to regard the common law -- despite certain doctrinal limitations -- as the most formidable previously existing defence of the environment.82 This assessment must be associated with a few high-profile cases, for the record casts considerable doubt on the proposition that the primary defenders of the environment were individual litigants with private interests to protect under the common law. There is certainly nothing new about regulatory measures to address environmental problems, water quality in particular, in Ontario. The precise objectives may have varied from one time period to another, but official measures to prevent, to control, and indeed to remedy pollution are long-standing. The legitimacy of public health activities has also been called into question on the grounds, it appears, that certain public health issues camouflaged a social reform agenda and that the application of standards often discriminated against immigrant and other minorities. The proposition has been floated that the extension of the public health regime into the realm of environmental protection was religiously motivated, entangled in some enterprise of nation building and class-based social purification. The slum, runs one formulation of the argument, was not only an economic or public health problem but 'an essentially moral category' whose population posed a danger that was 'simultaneously sanitary and moral.’ 83 Dr Charles Hastings, a Toronto medical health officer, is implicated in this provocative conflation of scientific and moral categories. The appearance of many dirty outhouses in the photographs accompanying the text of his report on Toronto slums is said to reflect the 'ascription of moral deviance to physical objects.' Hastings was on record to the effect that 'rear' and outhouses constituted 'a danger to public morals, and ... an offence against public decency' and that 'criminals and moral lepers are born in the atmosphere of physical and moral rottenness pervading the slums of large cities.' 84 A prominent recent account asserts in relation to turn-of-the-century reform efforts that religious and secular reformers regarded social and moral reform as inseparable elements of an 'ambitious project to transform Canadian society.' Clean water and milk were championed, it is suggested, for their contribution to the enterprise of inducing working-class mothers to raise their children as Christian Canadians.85 A London, Ontario temperance advocate contributed to the discourse with the claim that her home town enjoyed an 'abundant supply of pure, sparkling water -- water that leaves no excuse for drinking anything else.' 86 Whatever the merits of the overall thesis, these colourful examples may overextend its foundations. Thus, it is worth recalling that a vigorous public health campaign was underway well in advance of the arrival of immigrant groups considered to be its target, and that it was waged in cottage country against hotel operators and an established, 'respectable,' summering population. When sometimes inadequate municipal sewage treatment facilities replaced the outhouse, state institutions were also vigorously prodded to respond to new realities. And a good many explanations might be offered for defensive remarks about the quality of London's water supply, beginning with the PBH's observation that 'the negligence of the public authorities in respect to the pollution of the River Thames by raw sewage is, in our opinion, deserving of the severest condemnation ... The ... pouring of the raw sewage into the River Thames in our opinion amounts to criminal negligence.' 87 If immigrant communities were 'targeted' with sanitary measures it is worth recalling that officials of their countries of origin often paraded through Ontario (and other North American jurisdictions) in an attempt to find out how the same sanitary advances could be implemented. Dr Hastings aside, it is important to note the acknowledgment that there were, in fact, public health and sanitation problems, and the possibility that such concerns might well establish legitimate motivation for a very extensive institutional response. Having described the existence of a formidable public health regime, and having argued that significant elements of its operation may be seen as genuinely directed toward something of a communitywide public interest, the extent to which the regime was effective, at least in terms of improving water quality must be addressed. Against what standard might the performance of the emerging regulatory regime for water quality, as it has been described here, be measured? From the persistence of legislative reform of the Public Health Act, one might surmise that contemporary observers were not convinced that the courts were effectively controlling pollution through common law nuisance or riparian claims, however principled and well intentioned they might have been.88 Common law 'victories,' Fieldhouse, for example, did not necessarily produce remedial responses, and may actually have represented rather short-term advances in comparison with the determined problem-solving approach of physicians, engineers, and others dealing with community health. A footnote to Fieldhouse in the form of a 1929 letter from the Toronto city solicitor to a local law firm that had borrowed the brief and pleadings confirms the modest pace of change: 'As far as I can see, these papers were never returned. As we have now some similar actions pending, I trust you will be good enough to return this brief and other papers which I lent you ...' 89 Public health officials sometimes sought abatement rather than penalties and generally considered themselves successful when a problem was satisfactorily addressed prior to conviction. Negotiated progress falling somewhat short of perfection was reasonably preferred to a litigated standstill outside the closed gates of paradise. Thus levels of prosecution and conviction were not really benchmarks of progress either. An entirely different set of indicators interested public health officials, municipal leaders, and presumably also the residents of Ontario: was the water and sewerage infrastructure being built, were typhoid and comparable epidemics under control, was the water safe to drink? By these measures significant advances were made even as another set of problems was set to emerge through industrial discharges to the new underground water systems. The evolution of the legal framework of the public health regime for water quality and the reaction of lawyers to it merit a final observation. Those outside the community of legal professionals, in this case public health officials, saw the legal framework as a necessary but hardly sufficient element in their campaign to safeguard water quality. The common law of nuisance underpinned their framework, but repeated frustrations led to a continuing series of reforms. Those reforms transferred power to officials, and the question therefore arises as to how this situation was perceived. Although various -- often minor -- legal officials generated obstacles to successful prosecutions in the interests of legal form and procedural safeguards, senior legal officers do not appear to have obstructed public interest environmental litigation in the early twentieth century, even if they were reluctant to undertake it directly or to assume the costs. During the period examined here it is hard to make the case that the courts were hostile to administrative intervention either for the purpose of preserving judicial turf or to constrain officials in their efforts to promote public health. NOTES I wish to acknowledge with thanks the research assistance of Barry Ditto and Bill Wade and the financial support of The Osgoode Society.
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