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The Electromagnetic Field Pollution Class Action in Québec Will Not Go Forward

Fasken
Reading Time 18 minute read
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Durand v. Attorney General of Québec and others 1

[131] In the Courts’ view, the proposed class action represents a poorly-disguised attempt to hijack the class action process in order to conduct a form of commission of inquiry, both scientific and political in nature, with a view to imposing the scientific views of the Applicants and their experts, not only on the Quebec Government, but also on the Royal Society of Canada and the Canadian Government, thereby affecting all Canadians, and not just class members

In Durand v. Attorney General of Québec, Justice Gary D.D. Morrison refused to authorize (certify) a class action on behalf of persons, fauna, pets and animals relating to electromagnetic field pollution. In addition to the Attorney General of Québec and the Attorney General of Canada, the Plaintiffs asked the court authorize a class action against the following defendants[3]:

  • Royal Society of Canada
  • Air Canada
  • The City of Sainte-Anne-des-Lacs
  • Société de transport de Montreal
  • Hydro Quebec
  • Communications Mega-stat inc. (Rogers)
  • BCE inc. (Bell)
  • Videotron
  • Telus
  • Virgin mobile Canada
  • Koodo
  • Fido solutions inc.
  • Silicon Laboratories Canada inc.
  • General Electric Canada
  • Sony of Canada Ltd.
  • Sony Corp.
  • Siemens Canada Ltd.
  • Tesla Motors Canada U.L.C.
  • General Motors of Canada Company
  • FCA Canada inc.
  • Volkswagen Canada
  • Apple Canada inc.
  • IBM Canada Ltd.
  • Toshiba
  • Xerox Canada inc.
  • Panasonic Canada
  • Cisco Systems
  • Texas Instruments Canada
  • Hitachi Data Systems inc.
  • Lenovo (Canada) inc.
  • LG Electronics Canada inc.
  • Ericsson Canada inc.
  • Philips Electronics Ltd.
  • Samsung Electronics Ltd.
  • Microsoft Canada
  • Facebook Canada Ltd.
  • Arris Canada
  • Whirlpool Canada LP
  • Ledvance Ltd.
  • Luxury Hotels International of Canada, ULC
  • The TDL Group Corp.
  • Google Canada Corporation

At one time, Pope Francis also was named as an impleaded party, but the action was later amended to remove him from the proceeding.

The Proposed Class Definition

In the final iteration of the proposed class definition, Marcel Durand and Evelyn and Myles Mahon asked to represent the following class of persons:

[31] (…)

All persons who reside, work, study in any part of the Province of Quebec, as well as flora, fauna, pets and animals who are or have been exposed cumulatively in places of residence, work, or study to excessive levels of EMF such as from:

1. living, studying or working within 500m et a significant omission source which includes cellular base stations (towers), high tension power transmission lines (greater than 300 kV or substations and significant transformation/distribution infrastructures);

2. living, studying or working within buildings immediately adjacent (sharing a floor, a wall, or a ceiling) to uncontrolled sources of EMF (such as WiFi or smart meters);

3. living, studying or working within 50m of Metro or electric rail infrastructures (transformers, substations, electrified rails or power conduits for rolling stock);

4. ongoing exposure to carried or purchased anthropogenic, non-ionizing EMF emitting consumer products that are unfit for use, have latent defects or lack necessary warnings or instructions for safe use; or

5. exposure to other significant cumulative sources of anthropogenic microwave or radio omissions from any one or any combination of the listed electromagnetic field (EMF) sources which can be meaningfully assessed (via a relevant methodology) to exceed Petitioners’ proposed Threshold Standard.

Wherein the above-listed omissions create a risk likely to adversely affect lite, health, safety, welfare or comfort of humans or likely to cause damage to flora and fauna. This includes Quebecers who suffer moral, physical, psychologies! and/or genetic damages as a result said EMF pollution. The approximately 3% of Quebecers who suffered symptoms of Electrohypersensitivity (including Neurological, Cardiac, Respiratory, Dermatological and Ophthalmological symptoms) as par Exhibit R-23, p. 62. Or in the case of non-hypersensitive individuals, those who surfer acute or chronic illnesses including genetic disorders, Cancers, reproductive dysfunction, Cardiac disease, and psychological illness (including addictiveness).

The number of persons possibly included in the class is not addressed in the ruling, but Justice Morrison notes that the class is not limited to residents of Québec because the class definition also refers to all people who work or study in Québec. He remarked and questioned whether every Quebecer might be included in the class.

The Damages

The Plaintiffs sought the following damages on a joint and several basis. [4]

[22] (…)

- $100,000 in damages per person en average, adjusted par each sub-class.

- $13,000 per person for “moral, exemplary and Charter[5] damages”, also adjusted par sub-class;

- $175,000 on average, in “moral, exemplary and Charter damages”, for “all farmers whose livestock are exposed” to certain levels of stray voltage “from the ground”;

- Hydro Québec to “immediately” pay the Applicants Myles and Evelyn Mahon the sum of $43,797.26 and “to cover the expenses of (sic) the Mahons have incurred and as set out herein”, and Bell Canada to “immediately” pay them $664.90.

Plaintiffs also asked for injunctive relief and a declaration that the defendants contravened the Environment Quality Act, the Charter of Human Rights and Freedoms of Québec and the Canadian Charter of Rights and Freedoms.

The Problems with the proposed class definition

The scope of the proposed class definition was deemed problematic by Justice Morrison who dealt with the issue by asking these questions:

  1. “Who” is included in the class?
  2. “What” is included?
  3. “Where” must the EMF exposure occur?
  4. “When” is the EMF exposure to occur or have occurred?
  5. EMF exposure is said to “cause” what?

“Who” is included in the class?

As Justice Morrison put it, the putative class purported to include all persons including minors, who reside, work, and study in Québec. Would the class include only those who are working or studying in Québec at the moment of authorization, or would it carry forward to the time of judgment on the merits? What happens if they cease to work or study after authorization but before a judgment on the merits? Justice Morrison noted that no clarifications in this regard were provided. He further noted that it was not clear how long someone had to work or study in Québec: “Is one day enough?…one week?…one month?  If someone attends a course for three days, do they qualify?[6]

Justice Morrison added that the question became even more complicated given that it was a “cumulative effect” lawsuit:

[36] (…)

For example, if a person were to work in Quebec for six months and was to be considered a class member, would his claim be limited to only cumulative effects that may have taken place in Quebec during those months? What of the cumulative affects to which he was exposed for the duration of his life?

Justice Morrison sought clarifications from counsel for the proposed class who simply indicated that they intended to leave the wording of the class definition as is. The response was not satisfactory, the judge noting:

[37] (…) “That response provides little comfort to the Court as to the seriousness of the effort.”

The Plaintiffs also sought to represent “flora, fauna, pets and animals”, but Justice Morrison emphasized that a class action, in Québec, is only available to “persons.” Indeed, the Civil Code of Québec provides that “animals are not things,” and while they can still be property, animals are not persons. [7]

“What” is included in the proposed class definition?

Justice Morrison asked what qualifiers are envisaged by the class definition, and he surmised that class members would be those who “are or have been,” without any stated time frame, “exposed cumulatively (…) to excessive levels of EMF.”[8] In other words, to paraphrase Justice Morrison, exposure must be to excessive levels of EMF, which can result from cumulative and varied sources over an undefined period of time.

Justice Morrison asked how the class members would know if they are, or have been, exposed to such excessive levels of EMF. As he put it, EMF pollution is not, for the most part, seen, heard, tasted or felt, and it cannot be measured without special equipment.

What are the excessive levels of electromagnetic fields that potential class members would have been exposed to? No proper methodology was proposed, and, as Justice Morrison wrote, class members would not be capable of saying that they did in fact qualify as class members. In that sense, the proposed class definition was for the most part circuitous, a fatal flaw in class definitions. 

Where must the electromagnetic fields exposure occur?

The Plaintiffs proposed that you are a class member if you are, or have been, exposed cumulatively in places of residence, work or study. Justice Morrison noted:

[84] (…) Transient exposure would not be included, such that exposure which takes place other than in such places would not be relevant, would not qualify someone as a class member and should not be considered for analysis purposes.

Justice Morrison found that limiting the class in that manner would also impact the adequacy of representation. Can the Plaintiffs act as representatives of all the employees of the employers that are defendants in the class action when neither of the proposed class representatives are employees of these defendants? Justice Morrison held that this was a serious, if not fatal, problem for the Plaintiffs.

“When” is the electromagnetic field exposure to occur or have occur?

There is no insight on this issue in the proposed class definition. Justice Morrison wrote that many EMF emitting products came into consumer markets recently but that is not true of all products, such as electricity. He wrote:

[92] (…) a potential class member would not be obliged to take into account any temporal factors in determining his or her qualification as a member, which could seriously give rise to prescription issues. (…)

However, given the conclusion on the other issues, Justice Morrison did not consider it necessary to examine the matter of prescription further.

Electromagnetic fields exposure are said to “cause” what?

The class definition states that the emissions above the threshold levels created a “risk likely to adversely affect life, health, safety, welfare or comfort of humans” or “likely to cause damage to flora and fauna.[9] In other words, as Justice Morrison noted, excessive electromagnetic fields emissions need not cause adverse effects or damages, they only needed to make the risk of such damages likely. Oddly, the proposed class definition then stated that “This includes Quebecers who suffer moral, physical, psychological and/or genetic damages as a result said (sic) EMF pollution.[10]  Accordingly, some members will only suffer moral damages, others physical and psychological, while still others genetic damage.

This list of damages or illnesses is presented as non-exclusive (“including”). Justice Morrison remarked that such a wide range of possibilities would lead one to inquire as to whether every Quebecer was included in the class, and ever asked how anyone would be able to understand whether they suffer any of the stated damages as a result of EMF exposure?

In addition, the class definition attempted to add Quebecers who have “symptoms of electrohypersensitivity” relying on a cited exhibit. Justice Morrison criticized the technique of incorporating a document in a class definition:

[100] (…) the definition of the class includes a reference to an exhibit, which would need be publicized to and understood by putative class members, which creates a risk of further confusion.

He added that the symptoms of electrohypersensitivity range from skin issues and tinnitus to cardiac and neurological illnesses. He asked:

 [101] (…) How would anyone know that their tinnitus, skin problems, heart disease or neurological illness results from exposure to EMF?  Would a person with physical discomfort or with acne need decide whether or not to withdraw from the class action given the vagueness of the definition, relying solely on his or her discomfort or skin condition?

According to Justice Morrison, this would create so much confusion that no one would be able to know if they were even members of the proposed class:

[106] (…) the wide range of damages identified in the definition of the class is such that it would have almost no meaning for most people other than being a source of serious confusion as to whether they qualify as class members.

Conclusions as to the Class Definition

Justice Morrison found the proposed class definition to be unclear, subjective and circuitous, and to be incomprehensible to the average reasonable person.

Counsel for Plaintiffs in class actions run a risk when they propose an unsatisfactory class definition and rely on the courts to help them re-write the class definition. Justice Morrison did not agree that it is the role the court to re-write an unsatisfactory class definition:

[113] As well, it is not the Court’s role to completely re-cast and re-define the class action.  No doubt, in certain cases, the Court can contribute to providing certain clarification and modifying certain elements, but in the Court’s view, this does not mean that it is duty bound to set aside the Applicants’ definition and replace it with an entirely different one.  To do so in this case would be to alter the inherent nature of the proposed class action so as to essentially create an entirely new action; that is not the Court’s role.

Justice Morrison then addressed the authorization criteria of article 575 of the Code of Civil Procedure.

When Should a Class Action be Authorized: The Authorization Requirements of Article 575 of the Code of Civil Procedure

Justice Morrison wrote that the Plaintiffs sought to use the proceeding to transform the class action into a commission of inquiry and an academic and scientific forum. The Plaintiffs not only alleged a conspiracy between the governments and the emitters, but also asked the Court to state that the existing regulatory standards were too low and that the court should order the governments of Québec and Canada to regulate new EMF standards along the lines of those that they propose. Justice Morrison wrote:

[126] In other words, this is not a class action against a given industry, where the industry players manufacture similar product or share common business practices.  The Applicants’ proposed class action is based on a type of pollution, one which taken cumulatively is alleged to cause some form of damage, from purely moral damages to physical discomfort, from headaches or tinnitus to cancer, from psychological to genetic damage, or which damages plants and animals.

In bringing this proposed class action, Justice Morrison determined that Plaintiffs sought to hijack the proceeding in order to transform the Superior Court into a commission of inquiry, which is counter to proper administration of justice or the principle of proportionality enshrined in the Code of Civil Procedure .

Do the Facts Alleged by the Plaintiffs Appear to Justify the Conclusions Sought?

Justice Morrison held that this authorization requirement was not met. The facts alleged by the Plaintiffs were not sufficiently precise to support their arguments. The Plaintiffs made four submissions in respect to the cumulative effects of EMF and the liability of the defendants:

  1. the duty to warn, regulate and not market inherently dangerous products;
  2. abnormal neighbourhood annoyance;
  3. statutory prohibitions; and
  4. interference with the Charter of Human Rights and Freedoms of Québec and the Canadian Charter of Rights and Freedoms rights.

The Plaintiffs submitted that “EMF emitting products are dangerous, contain latent defects, are unfit for the purposes intended, fail to provide warnings as to their dangers, fraudulently misinform and mislead the public regarding their dangers and fail to provide safer-use practices.”[11] They also alleged that the two governments did not respect their duties to regulate EMF pollution. As  Justice Morrison notes, the proposed class is limited to cumulative exposure in places where class members live, work or study and for that reason, the Court cannot consider exposure to EMF in automobile, restaurants, hotels or the Montreal subway. Secondly, the identification or “various machines” or “other sources” is too vague or imprecise to assist the court in the evaluation of the submissions put forward by the Plaintiffs.

Mr. Durand claimed to have suffered from a host of ailments, including:

[156] (…)

(i) physical discomfort;

(ii) general feeling of fatigue, inability to work as he used to, inability to heal properly, susceptibility to infection;

(iii) substantial interference with his ability to work and carry out normal activities, including the inability to sleep and the inability to make a modest living;

(iv) substantial interference and deprived ability to sleep restfully, or at all, caused him to be “extremely tired in ill-health, diagnosed with chronic lymphocytic leukemia”, and not alert in his work;

(v) necessary to make adjustments, including a Faraday cage, shielding the house and finding alternate sleeping accommodations;

(vi) psychological and physical stress, decreased productivity, ill-health, sadness and stress;

(vii) substantial inconvenience, and loss of use of his workshop for over eight (8) years;

(viii) fear and anxiety;

(ix) flora and fauna on his property have been adversely impacted, including trees on his property having been burned, killed or damaged by EMF, trees on his neighbours property “burst into flames and burned” as a result of Hydro Quebec power lines and, further, Canada geese, wasps and deer are “less evident, if at all” on his property; and

(x) “smart meter” emissions will cause further health damage.

As Justice Morrison writes, all that he had at this stage were Mr. Durand’s personal opinions, speculations, inferences and suspicions as to the cause of his present physical, psychological and other problems.

While Justice Morrison notes that Mr. Durand’s allegations are deemed to be true at the authorization stage, this presumption did not apply to the causal link between his ailments and EMF exposure. The Plaintiffs attempted to fill the gap by filing a large quantity or scientific papers on potential health risks associated with EMF exposure, but Justice Morrison disregarded these documents since he was unable to connect much of that data to Mr. Durand’s personal and specific situation.

With respect to the abnormal neighbourhood disturbances doctrine, Justice Morrison simply states that article 976 of the Civil Code of Québec covers annoyances that are beyond the normal and acceptable limits of tolerance. No such demonstration was made by the Plaintiffs.

Finally, with respect to the submission based on the Charter of Human Rights and Freedoms of Québec and the Canadian Charter of Rights and Freedoms, the Plaintiffs relied on section 1 and 46.1 of the Charter of Human Rights and Freedom, section 7 of the Canadian Charter of Rights and Freedoms and art. 898.1 of the Civil Code of Québec.[12]

The Plaintiffs submitted that these provisions must mean that:

[194] (…) every person has a right to life and personal security, as well as to live in a healthy environment, in which biodiversity is preserved, and one in which animals are not to be harmed.

First, Justice Morrison addresses the issue of biodiversity and writes that the preservation of biodiversity, as one can read from section 46.1 Charter of Human Rights and Freedom is limited to the standards provided by law. Yet, the Plaintiffs attacked those standards; they claim that they result from the bad faith of the Québec and Canadian governments who are “embedded” with the other defendants. However, these claims were insufficient according to Justice Morrison:

[198] (…) the factual allegations in regard to bad faith are insufficient and certainly do not make for an arguable case. (…)

[…]

[208] Simply alleging “bad faith” is not a factual allegation into itself.  It is a legal conclusion.  One arrives at such a conclusion through the analysis of the facts.  Those facts need be alleged.   Applicants have failed to allege facts that could give rise to such a conclusion.

Importantly, with respect to the methodology for establishing the causality of damages, Justice Morrison emphasizes that the Plaintiffs did not propose a methodology for establishing that the damages were caused by EMF exposure. Not all emitters are sued, which means that we do not know how to exclude their potential contributions. Also, how can one determine, which of the wide range of alleged damages has been cause by EMF exposure?

Justice Morrison surmised as follows:

[218] (…) For example, a person reads from a tablet and has a television, a cell phone and a microwave.  If that person’s EMF exposure exceeds the appropriate standards determined at trial, will the Court be able to conclude that his headaches are caused by EMF?  Are other sources of EMF emissions to be excluded, such as time spent in the Montreal subway?  Are other totally non-EMF related causes of headaches to be excluded?  Would the facts really be sufficient for a presumption?

Before concluding, Justice Morrison addressed the Plaintiffs’ claim that the Defendants be ordered to pay damages “jointly and severally solidarily and in solidem.” This could lead to absurd results, where the manufacturers of a baby monitor could be liable for a cancer caused by a smart meter or other allegedly grave or serious damages suffered by class members.

Are the Proposed Class Representatives Capable of Adequately Represent the Interests of the Class Members?

The findings of Justice Morrison on this issue deserve to be quoted in extenso:

[231] Had the Court intended to authorize the class action, it would not have appointed either Mr. Durand or the Mahons as designated representatives, at least not without having reconvened the parties to discuss certain go-forward issues.

[232] Applicants themselves have stated how the proposed class action might well be the largest one ever to be undertaken.  That might well have been the case.  Conducting such an action would require an experienced professional team.

[233] What is painfully obvious, and this since early in the process, is that the case is far too demanding and far too large to be handled by an individual class lawyer from a one-man firm, who does not even appear to have a full-time secretary or assistant.

[234] From the outset, the Court has made suggestions that Applicants’ lawyer should seek all the support and assistance required.  That does not appear to have been done.

[235] Prior judgments and Hearing Minutes in this file contain numerous references relevant to these comments.  One need only refer to the “Context” section of the present judgment to understand some of the difficulties encountered by Applicants in managing this matter.

[236] The fact that the proceedings are not financed by the Quebec Class Action Fund, does not by itself mean that class counsel could not make the appropriate arrangements to share the work load with other counsel and perhaps even paralegals and full-time secretaries or assistants.  An unwillingness, or perhaps an inability to do so, could be viewed as truly worrisome.

[237] The situation would need have changed were the class action to have moved forward, not only for the proper administration of justice, but in the best interest of class members.

[238] There being no need, the Court will not add further comments.

For all these reasons, the application for authorization was dismissed, and the Plaintiffs did not appeal.



[1]       2018 QCCS 2817.

[2]       Noah Boudreau acted for Defendant Toshiba  in this case.

[3]       The names in italics refer to the defendants that were not properly served and did not file an appearance. As Justice Morrison mentions: [13] (…) “service has been an issue for the Applicants.”

[4]       Para. [23].

[5]       This is a reference to the Charter of Human Rights and Freedoms of the Province of Québec and to the Canadian Charter of Rights and Freedoms.

[6]       Para. [34]

[7]       Article 898.1 of the Civil Code of Québec.

[8]       Para. [53]

[9]       Para. [94].

[10]     Para. [95].

[11]     Para. [145].

[12]     Those articles reads as follows :

1. Every human being has a right to life, and to personal security, inviolability and freedom.

He also possesses juridical personality.

46.1. Every person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law.

[…]

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[…]

898.1. Animals are not things. They are sentient beings and have biological needs.

In addition to the provisions of special Acts which protect animals, the provisions of this Code and of any other Act concerning property nonetheless apply to animals.

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