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Pesticide sprayingAnother attempt to seek environmental health damages in a class action has failed. The federal government, Dow and Pharmacia Corporation are facing class actions across the country relating to herbicides used at the military base in Gagetown, New Brunswick. Plaintiffs claim that  74 defoliants, herbicides and pesticides were sprayed at the base, including Agents Orange, Purple and White, which Canada allowed the US to test there during the Vietnam War. Many soldiers and others claim to have suffered cancer and other illnesses as a result. One of these class actions was certified in Newfoundland in 2007, and is now under appeal (Ring v. Canada). However, the largest number of alleged victims likely live in New Brunswick, where the base is located. Their certification application was dismissed by the New Brunswick Court of Queen’s Bench this summer. Charles Bryson and Donald Murrin sought certification of a class action against Canada on behalf of perhaps hundreds of thousands of people. Their proposed class included anyone who had, since 1956, lived, worked or visited within 10 km of the base and claimed to be ill as a result, plus their families. This area includes a large town and part of some major highways.

The application was unsuccessful. As in most previous cases claiming chronic exposure to environmental pollution, the judge found the proposed case unworkable. Human health involves too many variables, especially for hundreds of thousands of people, potentially exposed to 1 or more of 74 chemicals sometime in half a century, to be easily managed in a single lawsuit.

Bryson and Murrin have appealed their loss. Meanwhile, similar class actions are still pending in other provinces. The Newfoundland Court of Appeal has refused an attempt to use documents from the Newfoundland case in a certification motion in Saskatchewan. The whole Gagetown issue may keep our courts busy for a decade.

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