CANADA Law and Practice Contributed by: Laura Duke, Will Shaw and Emma Russell, Lawson Lundell LLP
In general, landowners or occupiers must conduct a pre-work assessment before commencing certain building work. Any asbestos found must be carefully managed prior to renovations or alterations. Legis- lation mandates that specific procedures be imple- mented during asbestos removal, including in relation to ventilation, waste containers and decontamination. Asbestos was used frequently in Canadian insulation, fireproofing and construction until the 1980s. Canada was also an active producer of asbestos until 2011. As a result, Canadian exposure to asbestos has been relatively widespread and asbestos-related diseases continue to be one of the top causes of workplace death in Canada. Despite this, asbestos litigation against employers is relatively uncommon. Canada has publicly funded healthcare and most provinces operate a mandatory workers’ compensation scheme, which means that the majority of workers injured by asbestos exposure will receive medical treatment and compensation with- out resorting to litigation. Where asbestos litigation has been undertaken, it has been initiated by work - ers’ compensation boards (the bodies responsible for administering the workers’ compensation schemes) and brought against manufacturers of asbestos prod- ucts to recover the costs of paying out compensation to workers and their families. To establish a claim for damages for asbestos expo- sure, a litigant must demonstrate actual physical harm or injury. However, the long latency period of asbesto- sis and mesothelioma means that the injury or harm may not be realised and litigation not commenced for decades. This has created challenges for Canadian courts. Litigants have often been exposed to asbestos from a variety of sources over a long period of time, making causation and the proper apportionment of liability a difficult issue. Polychlorinated biphenyls (PCBs) refer to a group of synthetic chemicals. Owing to their persistent nature, low levels of PCBs are found in the environ - ment and accumulate and remain in the human body for years. For several decades in the mid-20th cen- tury, PCBs were used widely as ingredients in many industrial materials. However, health concerns raised
in the 1960s and 1970s as well as the 1988 fire and evacuation at Saint-Basile-le-Grand, Quebec even- tually led to robust government regulation concern- ing the chemicals. PCB production in Canada has been banned since 1980; however, this ban does not include PCBs used in existing electrical applications. The use of PCBs is governed by a complex scheme of federal and provincial legislation primarily aimed at storage, transportation and disposal. Overall, the federal PCB Regulations intend to prevent the release of PCBs into the environment and accelerate their phasing out. The regulations establish prohibitions on the release, manufacture and use of PCBs, permitted activities involving PCBs, and end-of-use deadlines for equipment and products containing PCBs. The regulations also place limitations and prohibitions on the storage of PCBs and establish labelling and reporting requirements. International and interprovincial PCB transportation is governed by the federal Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations. These regulations reflect Canada’s com- mitments to international obligations, such as those arising from the Basel Convention of the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. Similar regulations, such as the British Columbia Hazardous Waste Regulation, are in place at the provincial level to regulate intra-provincial storage and transportation. One of the leading cases with regard to PCBs in Can- ada is R v Hydro-Quebec (1997) 3 SCR 213, 151 DLR (4th) 32. In this case, Hydro-Quebec was criminally charged for discharging PCBs into a nearby river over a certain period of time. Hydro-Quebec challenged the constitutional validity of the legislative provisions under which the charges were laid against it. The SCC upheld the validity of the provisions. This decision set a meaningful precedent in Canada by clarifying the authority of the federal government to legislate and regulate toxic substances and the environment. The decision also marked an important moment in the acknowledgment and recognition of the dangerous and toxic nature of PCBs.
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