Canadians are surrounded by the chemicals in household cleaning and personal care products, toxic emissions from factories and second-hand smoke, and by the increasing risks of harm from climate change. How are our governments protecting us? And in cases where they are failing, what can citizens do to protect themselves legally?
Canada has a strong set of laws on environmental protection at the federal, provincial/territorial and local levels, up to and including municipal by-laws on smoke-free public places. But what happens when governments are unable or unwilling to properly enforce these laws, or when the laws are not stringent enough to prevent unwanted exposure to unreasonable environmental and health risks? For example, despite significant efforts to develop and update chemicals management plans at the federal and provincial levels, we still know very little about the chemicals that can harm us. Tens of thousands of these that are in the Canadian environment have never been tested for chronic toxicity, alone or in combination. What can someone affected by one of these untested chemicals do while the regulatory system tries to catch up?
This is where the law of toxic torts comes in. Torts govern harms not caused by criminal activity or breaches of contract; examples include car accidents and medical negligence cases. Toxic torts involve environmental contamination or harms due to toxic products and emissions. The beauty of torts is that victims can take matters into their own hands and sue the polluter, emitter or government for the harms they have experienced.
Successful toxic torts litigation attracts publicity for and raises awareness of the issues, which can lead to reputational pressure on corporations to change their behaviour, or political pressure on government to change the law.
Of course, litigation is expensive and time-consuming, and toxic torts cases are often especially costly and slow, due to their scientific complexity. But when these hurdles are overcome, successful toxic torts cases can result in significant financial damage awards. This could change the economic logic of industrial production by making it more economical to prevent harm than to compensate for it. This is especially true in class actions for toxic torts, where the costs and risks of suing are shared and the collective damages of the people harmed are combined into one huge award. The substantial penalties they have to pay can make emitters sit up and listen, and they can deter others from causing similar risks of harm. Furthermore, successful toxic torts litigation attracts publicity for and raises awareness of the issues, which can lead to reputational pressure on corporations to change their behaviour, or political pressure on government to change the law.
While the scope of possible toxic tort cases is endless, a few examples illustrate their potential. Plaintiffs could try a claim of toxic battery, which involves intentionally making contact with another person’s body without their consent. For example, in the case of MacDonald v Sebastian, a landlord who was also a doctor knew there were unacceptable levels of arsenic in the water in the apartment he leased to a family, and he was held liable for the resulting damages to his tenants – he knew they would inevitably drink the contaminated water, so this was a nonconsensual interference with their bodies. This kind of toxic battery claim could also work for people harmed by second-hand smoke, although there are no cases of this so far.
Property torts might also be useful. In Friesen v Forest Protection Ltd, neighbours adjoining land that had been aerially sprayed with pesticides suffered mild health and psychological effects, as well as harm to their bees, livestock and fruit trees. In awarding damages, the New Brunswick court ruled that the neighbours did not have to prove the spray was toxic because “even to have thrown water, or garbage, or snow…or any other substance on the property would…have amounted to…[a] trespass.” The principle of trespass could be applied preventatively: if you become aware that harmful emissions are planned in your area, you could seek an injunction to pre-empt the plan.
It is more difficult to prove that a polluter or a manufacturer (e.g., a drug company) harmed you accidentally, because the tort of negligence requires proof that the polluter owed you a duty not to harm you, that they fell below the standard of a reasonable factory or drug company, and that their carelessness caused your harm.
In all toxic tort cases, the greatest difficulty lies in proving causation. If several people in an area develop cancer, for example, how can they prove that the chemicals that were sprayed in that area over the course of decades was the cause.
Modern chemical harms often result from latent contamination that affects a community, such as gasoline having leached into the ground of a disused gas station and later residents eventually absorbing harmful chemicals through contact with water or soil. Negligence law puts up many barriers to successful suits by victims. For example, if the gasoline originally leached into the soil 50 years ago, the defendant will be held to the standard of a reasonable gas station at that time.
In all toxic tort cases, the greatest difficulty lies in proving causation. If several people in an area develop cancer, for example, how can they prove that the chemicals that were sprayed in that area over the course of decades was the cause, and not their lifestyle choices such as smoking, or other health factors? This is why environmental lawyers and scholars have called for changes to our approach to negligence in toxic torts cases.
It is likely there will be cases in the future where victims of harm due to climate change want to sue greenhouse gas emitters. Such cases have been attempted in the United States, without success so far. In Europe, the Dutch government was found liable in negligence for failing to develop sufficiently strict greenhouse gas reduction targets to protect its citizens. This case will probably attract similar claims in other countries before too long.
The law must evolve to deal with these new kinds of chemical and climate harms. This evolution can happen through legislative change. Historically, it was extremely difficult for smokers to sue tobacco companies for their illnesses. When provincial governments began to seek to sue tobacco companies to recover public health care costs they discovered the difficulties in negligence law, so many passed laws similar to the British Columbia Tobacco Damages and Health Care Costs Recovery Act, which made it easier to prove causation, in part by changing some evidence rules.
Governments must pass legislation that overcomes challenges in negligence and other areas of toxic torts, similar to the provincial tobacco and tobacco and health care cost recovery legislation. In the meantime, citizens should continue to bring these cases to court and encourage judges to adapt the law to protect Canadians from these new toxic threats. Class actions, increased funding for toxic tort litigants and increased awareness on the part of citizens and judges of the power of toxic torts will help move the law forward. The law can empower us to tackle the chemical and other toxic threats we face, and successful toxic torts claims will make a difference.
This article is part of the Recalibrating Canada’s Consumer Rights Regime special feature.
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