Material Contribution to Risk in the Canadian Law of Toxic Torts

Causation is acknowledged as the single biggest hurdle to recovery for plaintiffs in toxic tort actions in Canada (and elsewhere). Scientific uncertainty involving questions of both generic and specific causation has frequently precluded recovery for plaintiffs even where defendants have negligently exposed them to toxic risk. Three types of uncertainty have been identified: plaintiff indeterminacy (where we know that the defendant has harmed some proportion of a particular population but no individual can prove causation); defendant indeterminacy (where we know that a group of defendants has harmed a particular plaintiff or plaintiffs but each can escape liability by pointing the finger at the other); and indeterminacy of harm (where plaintiffs have been exposed to a risk that may or may not materialize in the future). In Canada, there is no recovery for risk exposure, unless it produces a measurable psychiatric harm. The problem of plaintiff indeterminacy remains, with a resulting under-deterrence of toxic harms and under-compensation of injured plaintiffs. The Supreme Court of Canada has, however, solved the problem of defendant indeterminacy for Canadian plaintiffs. Taking inspiration from both United Kingdom and American theories of collective liability, the Court, in Clements v. Clements, adopted a uniquely Canadian test for material contribution to risk as a proxy for proof of causation. This article argues that the Clements test is a promising start for causation reform in Canada but does not go far enough towards incentivizing information disclosure and precaution in the manufacture and dissemination of chemical products and pollution

Federalism, the Environment and the Charter in Canada

This Chapter reviews the key jurisprudential developments in relation to the division of powers in Canada, exploring how the shared jurisdiction over the “environment” created by sections 91 and 92 of the Constitution has historically and continues to shape environmental law and policy. In addition to this federal-provincial struggle, the chapter considers the current trend towards local regulation of environmental matters according to the principle of ‘subsidiarity’, and the growing recognition of the ‘inherent jurisdiction’ of Indigenous peoples. The contemporary dynamics are explored through two critical policy case studies highlighting barriers to environmental justice: safe drinking water on reserves, and climate change mitigation. The review reveals that Canada’s Constitutional framework, while not solely responsible, has contributed to our collective failure to achieve a coordinated and effective set of environmental laws and policies, which translates to unequal distribution of environmental benefits and burdens on the ground. Finally, recent movements to overcome these weaknesses are explored, including recent Charter litigation attempting to define “environmental rights” in Canada, and other attempts to establish a constitutional right to a healthy environment

The Unwritten Constitutional Principle of Ecological Sustainability: A solution to the pipelines puzzle?

This Article explores whether recognizing an obligation of ecological sustainability as an unwritten constitutional principle (UCP) would assist government decision-makers and courts in addressing the many competing imperatives raised by the problem of petroleum pipelines. I argue that if the rule of law is the foundation of our society, then ecological sustainability is the bedrock on which it stands. Moreover, an ecological UCP would assist courts hearing pipeline-related disputes in interpreting environmental legislation, supervising the discretionary decisions of environmental regulators, adjudicating environmental claims under the Charter, and/or determining environmental powers under sections 91 and 92 of the Constitution Act, 1867. In particular, the UCP of ecological sustainability strongly militates in favour of upholding environmental legislation where there is even a slight jurisdictional toe-hold for the relevant level of government. The Article will also contrast how a sustainability analysis of pipelines differs from one grounded in the right to a healthy environment – the other major avenue for constitutional environmental protection. The Article concludes that while the right to a healthy environment arguably does not clearly resolve the pipeline puzzle (since such a right could equally be violated by alternative methods of transporting petroleum products, notably train transport), an unwritten constitutional principle of ecological sustainability points clearly to the need to divest from fossil fuel infrastructure and aggressively invest in renewables

Material Contribution to Risk in the Canadian Law of Toxic Torts

Causation is acknowledged as the single biggest hurdle to recovery for plaintiffs in toxic tort actions in Canada (and elsewhere). Scientific uncertainty involving questions of both generic and specific causation has frequently precluded recovery for plaintiffs even where defendants have negligently exposed them to toxic risk. Three types of uncertainty have been identified: plaintiff indeterminacy (where we know that the defendant has harmed some proportion of a particular population but no individual can prove causation); defendant indeterminacy (where we know that a group of defendants has harmed a particular plaintiff or plaintiffs but each can escape liability by pointing the finger at the other); and indeterminacy of harm (where plaintiffs have been exposed to a risk that may or may not materialize in the future). In Canada, there is no recovery for risk exposure, unless it produces a measurable psychiatric harm. The problem of plaintiff indeterminacy remains, with a resulting under-deterrence of toxic harms and under-compensation of injured plaintiffs. The Supreme Court of Canada has, however, solved the problem of defendant indeterminacy for Canadian plaintiffs. Taking inspiration from both United Kingdom and American theories of collective liability, the Court, in Clements v. Clements, adopted a uniquely Canadian test for material contribution to risk as a proxy for proof of causation. This article argues that the Clements test is a promising start for causation reform in Canada but does not go far enough towards incentivizing information disclosure and precaution in the manufacture and dissemination of chemical products and pollution

Material Contribution to Justice - Toxic Causation after Resurfice Corp. v. Hanke

The vast universe of chemicals in the Canadian environment is presently understood only poorly by science. For many thousands of chemicals, important data regarding chronic toxicity are lacking. As a result, the requirement that the plaintiff in a negligence action prove causation of illness on a but-for standard has frequently been unattainable. In Resurfice Corp. v. Hanke, the Supreme Court of Canada articulated an important exception to the but-for test. In circumstances where but-for causation is unprovable due to limits in scientific knowledge, proof that a defendant materially contributed to the plaintiff\u27s risk of incurring the type of injury that was ultimately suffered will satisfy the causation element. This reform is an important first step in the evolution of a tort regime that is capable of doing justice in the chemical era

Environmental Justice and the Hesitant Embrace of Human Rights

This chapter explores some of the tensions inherent in employing ‘rights strategies’ in environmental justice movements. Using the example of a judicial review application brought by Indigenous environmental justice activists in Canada demonstrates the symbolic power of using rights-based language for environmental justice, but also underscores the serious procedural, logistical and resource barriers that frustrate these groups in their attempts to deploy litigation tactics. Legal scholars need to think critically about ‘rights-talk’ and confront the hard questions about its utility for advancing environmental justice. In working with communities, we must learn to listen to what communities want before we default to ‘rights’ and other legal tools often ill-fitted to the task

Revisiting the Doctrine of Intergenerational Equity in Global Environmental Governance

In the absence of binding international enforcement mechanisms, global environmental governance must rely on a legal framework that has widespread normative force around the world. In addition, such a framework should be sufficiently detailed and pragmatic to allow for effective implementation, should achieve the goal of environmental protection, and should be reasonable in terms of the level of sacrifice expected of the present generation, particularly in the developing world. Itis arguedthat the comprehensive doctrine ofintergenerational equity is an effective and appropriate legal framework for global environmental governance. The doctrine ofintergenerational equityposits thepresent generation of humans as simultaneously beneficiaries of the planetary legacy handed down from past generations, and trustees of that legacy for the future. The doctrine integrates the language of rights and responsibility and incorporates viable implementation mechanisms. As a result, the doctrine of intergenerational equity is superior to the presently hegemonic paradigm of sustainable development. The author concludes that the international community should adopt the doctrine of intergenerational equityas a framework for global environmental governance

Law\u27s Slow Violence: A Review of Rob Nixon\u27s Slow Violence and the Environmentalism of the Poor (HUP, 2010)

With gripping urgency, Rob Nixon’s book Slow Violence and the Environmentalism of the Poor seeks to reveal the “occluded relationships” between transnational economic actors and the things that tie them to particular places, such as labour, land, resources and commodity dynamics. He brings into view the bodies caught in the middle – those that have been raced and erased, made invisible, and wiped away -- by exposing the violence perpetrated against them across time and space. Nixon’s work is a broad synthesis of a seemingly disparate set of literatures in post-colonial studies, eco-criticism and literary studies. His arresting narrative engages three primary concerns: the phenomenon of “slow violence,” the environmentalism of the poor, and the role of the writer-activist in the work of making the first two ‘visible.’ Slow violence, in Nixon’s conception, is “a violence that occurs gradually and out of sight, a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all.” Because he views a major aspect of the critical challenge to be representational – the problem of devising “stories, images and symbols adequate to the pervasive but elusive violence of delayed effects” – Nixon focuses on the storytellers themselves. And the storytellers he chooses are the writer-activists that have inspired an environmentalism of the poor, primarily in the Global south. They include Arundhati Roy, Ken Saro-Wiwa, Abdulrahman Munif, and Jamaica Kincaid, among others. They are all figures who, like Nixon, demonstrate a stubborn resistance to liberalism’s urge to “locate violence outside law.” Instead of treating law as that which contains violence, they plainly confront its complicity