The “Forever Chemicals”: Dark Waters in Canada?


The “Forever Chemicals”: Dark Waters in Canada?

Often referred to as “the next asbestos,” per- and polyfluroakyl substances (PFAS) are a group of over 4,700 synthetic chemicals consisting of a fluorinated carbon chain that have been used for several decades in a variety of applications due to their stability and repellant abilities (ranging from non-stick cookware and water repellant fabrics to cosmetics and firefighting foams). Increasing awareness surrounding the harmful effects of PFAS has led governments of all levels to regulate them and attempt to reduce their use. Coupled with the recent emergence of PFAS-related litigation in Canada, the risks associated with PFAS render them contaminants of concern for more than just the environmental lawyer.

As is the case with many hazardous substances, PFAS were once believed to be safe. It has since been shown they are potentially harmful to both humans (having been linked to birth defects and cancer, among other diseases) and the environment. Making matters worse, the stability of the chemical bonds, that make PFAS attractive in the first place, render them largely incapable of breaking down naturally.

As popularized in the 2019 Mark Ruffalo movie “Dark Waters,” the discovery of the harmful effects of these “forever chemicals” has led to the proliferation of PFAS-related litigation south of the border over the past two decades. More than 1,200 PFAS related lawsuits were commenced in the US in 2021 alone. While the target of this litigation has primarily been PFAS producers (for example, DuPont and 3M), recent class-actions have expanded the focus to distributors and retailers of products containing PFAS.

Until recently, Canada had not seen any reported PFAS-related litigation (likely due, in part, to the fact they have not historically been produced in Canada). However, like most US litigation — it is often only a matter of time. Over the past couple of years, we have seen the emergence of these claims in Canada. This included the 2021 certification of a class-action against the National Research Council of Canada concerning the alleged PFAS contamination of properties surrounding the National Fire Laboratory in Mississippi Mills, Ontario (Egan et al. v. National Research Council of Canada et al., 2021 ONSC 4561, leave refused 2021 ONSC 7265).

Coinciding with the growing litigation, governments around the globe have introduced various measures regulating the manufacture, import, sale, and use of products containing PFAS. In Canada only the most well-known classes of PFAS are currently regulated at the federal level: perfluorooctane sulfonate, perfluorooctanoic acid, and long-chain perfluorocarboxylic acids. However, in April 2021, the federal government issued a Notice of Intent setting out its proposal to more broadly regulate PFAS. At the provincial level, regulation of PFAS has been slow to non-existent with only British Columbia currently regulating PFAS under its contaminated sites regime.

The risks associated with the growing litigation and regulation of PFAS in Canada, should raise flags for more than just environmental litigators. From a transactional perspective, PFAS should be identified as an issue in due diligence and consideration given on how to allocate risk (e.g., through indemnities, price adjustments, reps/warranties). Particular attention should also be paid to whether PFAS is excluded under any relevant insurance policies, including representation and warranty, pollution liability, third-party liability, etc. Lastly, the risk of PFAS-related exposures leading to health complications (particularly in the fire-fighting and military professions) represents potential liability that all labour and employment lawyers (and their clients) will want to be aware of.

Given the persistent nature of PFAS the associated risks are an issue that will not be going away anytime soon.