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Pesticides and products liability: American success, Canadian challenge

Article originally published January 24, 2019 online in The Lawyer's Daily

In August 2018, a verdict of a California jury in Johnson v. Monsanto found Monsanto liable to a groundskeeper who said the company’s weedkiller, Roundup (active ingredient glyphosate), caused his cancer. The jury awarded Mr. Johnson $289 million in damages, later reduced to $78 million by the judge on an appeal by the company.

What lessons are there in the Johnson result for Canada?

The Legal Theory of Liability in the California Case: Strict Products Liability

The legal theory of the case was based on strict products liability. Under this theory, a seller, distributor, or manufacturer of a defective product is liable to a person injured by that product regardless of whether the defendant did everything possible to make sure the defect never happened.

Strict liability means the defendant’s behaviour does not matter. Ordinarily in proving fault (negligence) in an injury case, the defendant’s standard of conduct is essential. For a defendant to be liable, he or she must generally have behaved in a manner that falls below the conduct expected of the average, reasonable person.

However, under strict liability rules, such as the ones applied to strict products liability cases, the analysis of whether the defendant’s conduct met a certain standard is done away with. The strict product liability rules were developed to replace standard negligence rules in most states in the United States because it became clear that plaintiffs, who were injured by defective products through no fault of their own, often could not win their cases. It was too difficult to prove that the manufacturer behaved below a certain standard, or that nothing else caused the defect. Courts and state legislatures in the United States recognized that it was bad public policy to make innocent plaintiffs suffer the loss when products were defective, so strict products liability rules were developed.

There are a number of product defects that can be alleged, including manufacturing defects, design defects, and inadequate warnings. The last two were pleaded in Johnson and the company found liable with respect to both of them.

A manufacturing defect is something that went wrong while the product was being made, (i.e. built in a way not intended by the manufacturer) and the problem only affected that particular product, not the entire product line. This was not at issue in the California case.

A design defect is something inherent in the design of the entire product line that makes every product sold unreasonably dangerous for the intended use.

Strict products liability also applies to a defendant’s failure to properly warn users about less than obvious risks posed by use of the product.

In Johnson, Monsanto was also held liable on the basis of a negligent failure to warn of the dangers posed by the product.

Challenges to Achieving a Similar Result in Canada

Could the result in Johnson be achieved in Canada? There are a number of challenges in Canada to a litigant bringing a successful products liability suit of the type brought in California:

First, bringing these cases involves the need for scientific, medical, and technical experts. This can be prohibitively expensive and is a disincentive to bringing civil actions for damages in the first place. While expense is an issue in the United States, Canada has additional obstacles.

Second, unlike the law in various states of the United States, products liability law in Canada is based not on strict products liability but on negligence principles and proving fault / causation on a balance of probabilities can be difficult in the absence of adequate expert assistance and often even with it.

Third, the use of juries in civil actions in Canada is rare. A jury is what produced the large award in Johnson. In Canada, products liability cases are usually tried by judges alone who tend to issue lower awards for damages.

Fourth, the reason trial judges make lower damage awards is that appellate court precedents act as constraints on awarding bigger damages. Indeed, awards of damages for compensation for injury in Canada are dramatically lower than in the United States for the same harms, thus making the undertaking of such actions less attractive for victims.

Fifth, unlike in the United States, in the common law provinces of Canada the losers in civil actions have to pay a portion of the court costs (costs of lawyers, experts, expenses) of the winners. This acts as a further disincentive to bringing cases.

Sixth, our class actions law, which in theory is meant to balance the playing field, unfortunately at least in Ontario, continues to be very unsatisfactory in certifying class proceedings for cases involving chronic or long-term damage to human health from exposure to toxic substances, including pesticides.

What Can Be Done?

Reliance on our existing civil court and regulatory system to protect the public has not worked. We need law reform. What would it look like? We need to reform:

  • our products liability laws so that they are based on strict liability principles not negligence principles;
  • our law on “costs following the event” (i.e. the rule that the loser pays a portion of the court costs of the winner);
  • our class action legislation (at least in Ontario) to improve the chances of certification of environmental class actions alleging damage from chronic, or long-term, harm;
  • our law on awards with respect to general and punitive damages;
  • our statute and/or constitutional law to establish the right to a healthy environment in Canada (and each province), in order to better balance the playing field for plaintiffs;
  • our federal and provincial pesticide legislation to make it more preventive, enshrine a more robust role for the public at the outset and throughout the process, provide the public with adequate resources, better access to information, and the right to a more protective substantive result, so that we may be able to prevent bad actor pesticides from ever reaching the market place in the first place.

The result in Johnson is a reminder of how far we have to go to achieve justice in Canada for those harmed by pesticide products