Last week, Ontario beekeepers filed a lawsuit in Ontario Superior Court (Windsor) against two massive chemical companies, Bayer AG and Syngenta AG, for over $400 million dollars in losses allegedly caused by neonicotinoid pesticides.
This is the first Canadian class action lawsuit filed for harm caused by the pesticides which have been identified as potentially responsible for the worldwide phenomenon and mystery known as “Colony Collapse Disorder.” Since the 1970s, but reaching obvious and disturbing levels in 2006, honeybees have been dropping like flies prompting scientists around the world to research potential causes which include cell phone radiation, parasites, and the thinning ozone layer. After 8 years, the conversation has focused on neonicotinoids.
Corn, soy bean and other crop seeds are treated with these pesticides to prevent insects from damaging them before they sprout. According to the Grain Farmers of Ontario, neonticotinoids have been used on all corn seeds in Ontario since 2004.
So far, the named plaintiffs include Sun Parlor, a family business that has been in operation for 89 years and which represents one of the largest honey producers in Ontario. Between 2006 and 2013, Sun Parlor alleges to have incurred losses consisting of $1.4 dollars in lost bee hives and about three quarters of a million dollars in lost honey production. Munro Honey, another of Ontario’s largest honey producers, alleges similar losses. The proposed class will include all Canadian beekeepers with potential losses dating back to 2006 unless they opt out.
According to the Statement of Claim, the three pesticides named persist in soils and have half-lives ranging from five months to sixteen and a half years. That’s a long time.
Why should we care? Because we need food. The work of pollinators is directly linked to 35% of the world’s food crops. In other words, you can thank bees for one out of every three bites of food you eat. The Canadian Association of Professional Apiculturists has said that it’s normal to lose 15% of the bee population over a winter, but over the last six years honeybees in Canada have been dying at double the rate.
Bill Maher once quoted Albert Einstein as saying that “if the bee disappeared off the surface of the globe, then man would have only four years of life yet. No more bees, no more pollination, no more plants, no more animals, no more man.” It’s not clear whether Einstein ever said this or not, but you get the point.
So, what are the legal chances for this lawsuit succeeding? There are two major hurdles: class certification and causation. Environmental law professors from the University of Ottawa recently reviewed the cases and comment that success in obtaining class certification in Canadian toxic tort cases has varied greatly, with pharmaceutical cases faring better than environmental ones. Cases involving property damage, rather than personal injury, are more easily certified, as are those involving environmental harm resulting from a single incident, like a factory explosion. For example, the Walkerton e-coli water contamination tragedy resulted in a class action that garnered a $70 million settlement. Environmental class actions often fail the certification test because most are not based on single incidents, but rather long-term exposures to toxic substances the science of which is not fully understood. Difficulty in proving causation is the hurdle a lot of environmental cases fail to beat whether they are class actions or not.
Under the Ontario Class Proceedings Act, 1992, section 5(1), the court shall certify a class proceeding, if:
(a) the pleadings or notice of application discloses a cause of action;
(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;
(c) the claims or defences of the class members raise common issues;
(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and
(e) there is a representative plaintiff or defendant.
The requirement of “common issues” is where most proposed classes get hung up, especially in environmental cases where each plaintiff has suffered individualized damages. The idea is that a class action is an efficient way to proceed because, for example, the individual plaintiffs could not afford to bring their own lawsuits and each case is very similar in terms of the issues to be tried. The trick is how to define the “common issues.” Under the American Rule (Fed. R. Civ. Proc. 23(b)(3)), common issues must “predominate” over individual ones. In Ontario, however, the law has emphasized that is not the case. The Ontario Act simply requires that “the claims or defences of the class members raise common issues.” The Supreme Court has said that an issue will be common “only where its resolution is necessary to the resolution of each class member’s claim’ […and] is a ‘substantial… ingredient’ of each of the class members’ claims.’” Hollick v. Metropolitan Toronto (Municipality), 2001 CarswellOnt 3577, 2001 CarwellOnt 3578 (S.C.C.) at para. 18 (other citations omitted).
Courts have noted that it is easier to find commonality where the issues relate “exclusively to the conduct of the defendants” as opposed to the individual situation of each class member. For example, in a case involving alleged harm from oral contraceptives, the Ontario Superior Court held that general causation, negligent production, marketing and distribution, and the duty to adequately warn of risks were all common issues because they were limited to the conduct of the defendants and their resolution would affect all class members equally. Schwoob v. Bayer Inc., 2013 ONSC 2207 (Ont. S.C.J.) at paras 32. and 35. In other words, regardless of the individual damages each plaintiff might allege or even prove, what is common to every single case is the behaviour of the defendant company, and it would be wasteful and inefficient to force individual plaintiffs to come to court separately.
In the case of the beekeeper lawsuit, the research, marketing and duty to warn of the defendant companies will be common to all individual plaintiffs. The success of the case is likely to depend on the state of the science on neonicotinoids as they affect pollinators. The plaintiffs will have to show that it is “more likely than not” that these pesticides have materially contributed to the losses they have suffered from the decline in in their profits.
So what about the rest of us, and what we may suffer if neonicotinoids are actually wiping out our pollinators? The European Union has already banned the chemicals. Health Canada’s Pest Management Regulatory Agency studied samples of dead bees collected in Ontario and Quebec last year and it found that neonicotinoids were present in 80 percent of the apiaries visited. The agency is closely monitoring the 2014 planting season to determine possible measures to protect bees from exposure to these pesticides. It has reported that its re-evaluation of neonicotinoids is a collaborative process with the U.S. Environmental Protection Agency and that an interim report is expected by 2015. The Statement of Claim estimates that evaluation will not be complete until at least 2017.
The Precautionary Principle is an environmental principle which says that we have a duty to prevent harm, when it is within our power to do so, even without full scientific certainty. Canada claims that its federal environmental policy is guided by this principle. Regardless of whether Einstein was right (with whatever margin of error), or whether he even said what he has been quoted as saying—giving us four years to survive after the loss of the honeybee—is there any issue more critical to our survival than the food supply? Perhaps global warming, but even that would not stamp us out as fast as widespread famine. Courts are beholden to standards like “more likely than not” when assessing scientific evidence, but policy holders are not. Some issues make clear that the “precautionary principle” isn’t just a good idea, it should be an imperative.