A relatively recent and developing area of personal injury law
involves injuries from toxic substances – such as mould in
apartment or office buildings, food toxins, pharmaceutical
products, and pesticides or other industrial chemicals. Although
claims for illness from these substances are often difficult to
prove, they can have widespread implications for employers,
landlords, food and chemical product manufacturers, mining and
construction industries, and many other businesses.
The phrase 'toxic tort' describes the judge-made legal
basis for claiming compensation for injuries or losses caused by
toxic substances. Toxic tort law developed with the increased
production, use, transportation, and disposal of hazardous
(In addition to tort law, industry specific legislation and
regulations set standards for managing hazardous substances and
compensating injuries that arise from them – such as building
codes, landlord tenant laws, mining laws, or workers'
Plaintiffs in toxic tort cases face particular difficulties in
seeking compensation for their injuries. The legal principles on
which the plaintiff must rely were developed before health concerns
regarding toxic substances arose and before medical research
supported these concerns. The legal framework is best suited for
cases where there is a single and easily identifiable cause of the
injury (such as a car accident causing acute injuries).
A claim that health problems were caused by a hazardous
substance is less suited for this framework. It is difficult to
prove in court that exposure to the substance caused health
problems, particularly where the illness does not develop until
years after the exposure, such as cancer, where exposure to the
substance, such as pesticides in a community, was minimal but over
a long period of time, where there are other possible causes for
the illness, or where medical evidence suggests a correlation
between the exposure and the illness but does not establish legal
Furthermore, tendering medical and scientific evidence to prove
causation in court is very expensive. In Canada the compensation
awarded may be minimal in comparison to the costs associated with
proving the claim. As a result, there have been few claims of this
nature in Canada.
Workers' compensation legislation also reduces the number of
court claims by legislating compensation for injuries arising in
the course of employment. In certain circumstances this scheme
avoids causation issues altogether by presuming the health problems
were caused by chemical exposure at work. For example if a worker
is diagnosed with acute respiratory illness after exposure to high
concentrations of fumes, causation will be presumed. Causation is
generally not presumed where illness arises after lower level long
term exposure, but there are exceptions, such as exposure to
Toxic tort litigation is more prominent in the United States
than in Canada, and the compensation awarded for personal injuries
may be significantly higher. However, the cross boarder nature of
environmental hazards may lead to greater toxic tort litigation in
Canada. This past December a Washington state resident living near
a lead and zinc smelter located in British Columbia filed a
class-action claim against the Canadian mining company on the basis
that pollutants from the smelter caused breast cancer and other
This developing area of personal injury law serves to remind a
wide range of industries to strictly follow health, safety, and
environmental standards to reduce health risks, and to maintain
adequate insurance to properly compensate anyone injured in the
event of an accident involving a toxic substance.
Previously published on the Pihl Law Corporation Blog
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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