“Forever Chemicals” and the Potential for Toxic Torts Class Actions in Canada

By: Jacklyn Barrios

In 1948, manufacturer 3M invented a chemical known as Perfluorooctanoic acid (PFOA), used to prevent substances from clumping during production. Three years later, United States chemical company, DuPont, began purchasing PFOA from 3M to use in the manufacturing of Teflon, the non-stick coating on their cookware. PFOA was used in Teflon until 2013. It has also been widely used in other products, such as stain-resistant carpet, ski wax and shaving cream. Unbeknown to the millions of consumers who use these products, however, PFOA is harmful to the environment and to the health of humans and animals.

PFOA is a man-made chemical that is part of the group of chemicals included under per- and poly-fluoroalkyl substances (PFAS). In 2019, Health Canada released a study stating 98.5% of Canadians have three specific types of PFAS in their blood, which includes PFOA. This group of chemicals is very stable and ideal for use in certain products. However, that stability also means that they do not easily dissolve in water or soil. They are “forever chemicals.” Consequently, they remain in the bloodstreams of individuals and animals that have been exposed to them.

As PFAS enter the body, they accumulate. This means that when foods that have PFAS are consumed, the concentration of these chemicals in the body gets higher. PFOA specifically has been known to cause various types of cancer, liver damage, early menopause, and decreased fertility, among other ailments. However, the full scope of the environmental and health effects of PFAS, is not yet known.

DuPont’s use of PFOA was discovered in the United States in 2000 by environmental lawyer Rob Billot. At the time, the chemical was not known to the public, and DuPont did not disclose its use. Mr. Billot discovered that DuPont had conducted its own tests on the effects of the substance decades prior to his discovery, and had found it to be extremely toxic to the health of those exposed to it. Mr. Billot filed a class action against DuPont based on his findings. The suit was settled in 2017 for $617 million. Since then, he has initiated another class action, which would require chemical companies using PFAS to research and mitigate the effects of these chemicals themselves.

Is there potential for a class action in Canada?

Section 5(1) of Ontario’s Class Proceedings Act (CPA) sets out the test for certification of a class action claim. Similar tests exist in legislation across the country, and all require that the plaintiff establish a viable cause of action, one that is not doomed to fail. Could a class action against PFOA manufacturers in Canada pass this threshold?

PFOA is considered a toxic substance in Canada under Schedule 1 of the Canadian Environmental Protection Act(CEPA). This classification bans the release of PFOA, or if it cannot be prevented, requires manufacturers to mitigate any environmental or health effects. Under section 95 of the CEPA, if an individual develops new or worsening health conditions as a result of the release of PFOA, they are entitled to a remedy, such as compensation for medical and prescription costs. On its face, the CEPA therefore provides a viable cause of action against companies that release PFOA.

Another criterion for certification is commonality. The certification judge must be satisfied that there are common issues of law and fact, and that they predominate over, or are more important than, the individual issues affecting class members. The facts surrounding the release of PFOAs and their impacts on human health, and the legality of these manufacturers’ conduct under the CEPA are both common questions that can be answered in one trial.

Class members would still have to prove that they have a health issue, and that the health issue was caused or worsened by PFOA. These are individual questions, but most class actions involve some issues of individual causation and damage assessments. The CEPA requires manufacturers to provide notice to individuals who will likely be adversely affected if PFOA is released. However, it may be difficult to prove the company’s release of the chemical if no notice was given.

Why Start a Class Action?

Starting a class action would increase awareness about the problem of PFAS, and the public attention that comes with litigating a class action can be useful to environmental advocates’ overall strategy. This is exemplified by Mr. Billot’s work in the United States. However, even with this increased awareness, there remains a lack of legislative response, accountability, and research on the effects of PFAS as a whole.

Canada has some legislative gaps regarding this as well. While the CEPA includes PFOA as a toxic substance, the legislation does not include the entire PFAS class. Due to a lack of research, the effects of the other chemicals are largely unknown, and the lack of legislation allows for continuous and widespread use of these potentially toxic chemicals.

The use of PFAS in Canada is in the early stages of regulation, and class actions can be crucial in requiring the courts and other government organizations to respond to these types of issues. Regulating PFAS will allow causes of action that extend past section 95 of the CEPA, and allow members of the public to hold people and companies that use PFAS accountable for the harm they cause. Until then, and in the absence of these class actions, you can help push for social and legislative change by calling or writing letters to your Member of Parliament (MP), the Minister of Health, and the Minister of Environmental and Climate Change.

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