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Will citizen group litigation and the threat of personal liability stop fluoridation of drinking water in Ontario?

In our earlier blog post, we described a threat by an advocacy group called Concerned Residents of Peel to End Water Fluoridation (Concerned Residents) against Peel municipal councillors. The group threatened the councillors with personal liability if they did not stop the Region from adding fluoride to the Region’s drinking water. The Region decided to defer the issue until after the municipal election. The group now claims that it has launched a lawsuit against the province of Ontario and Peel Region.

A press release from Ruby Shiller Chan Hasan states that the claim alleges:

“[T]he risk of harm posed by water fluoridation greatly exceeds its speculative benefits, and that water fluoridation is both unconstitutional and a violation of the Safe Drinking Water Act.

The Claim also alleges that the Region’s use of fluorosilicic acid to fluoridate drinking water is negligent because fluorosilicic acid often contains dangerous contaminants, including arsenic, a known carcinogen.

Although we were not able to find a copy of the Claim online, it is likely similar to a Memorandum prepared for Concerned Residents by Nader Hasan of Ruby, Shiller, Chan, Hassan, Barristers. Mr. Hasan argues that such a lawsuit could succeed because [footnotes omitted]:

Skeptics about the viability of a successful legal challenge to Ontario’s fluoridation program will point out that since the Supreme Court’s 1957 decision Toronto (Metro) v. Forest Hill (Village), which was superseded by legislative action (see supra at 10-11), all other legal challenges to fluoridation programs in North America have failed. For the following reasons, I do not regard these cases as barring a legal challenge in Ontario.

In Canada, there have been unsuccessful challenges to fluoridation programs in Alberta and British Columbia: see, e.g., Millership v. Kamloops (City)Locke v. Calgary (City). Those cases, however, are distinguishable on at least three different grounds.

First, those challenges were brought by self-represented litigants. While it appears that these individuals did an admirable job at marshaling the evidence and the arguments, novel constitutional challenges such as this are highly complex and require the assistance of counsel.

Second, the scientific evidence about fluoridation is improving. More information than ever before is known about fluoridation. At the time that Millership (2003) and Locke (1996) were decided, for example, the NRC Report had not yet been published. Nor had the Harvard study on the association between osteosarcoma and artificial fluoridation been completed.

Third, Canadian constitutional law under s. 7 of the Charter has developed significantly over the past five years. The principle of fundamental justice of “gross disproportionality” is a fairly new principle in Canadian constitutional law. Prior to the Supreme Court’s recent decisions in PHS and Bedford, there was some doubt over whether this principle was indeed a principle of fundamental justice and also some doubt over what “gross disproportionality” actually meant. In my view, the best argument against fluoridation relies on the principle of gross disproportionality. This argument was not available to the claimants in Locke and Millership. Each of these factors suggests that these other cases will not bar a successful constitutional challenge to fluoridation in Ontario

Whether the claim could be successful depends on the evidence. Can the group prove that the potential harm of fluoridation is grossly disproportionate to its benefits? It seems unlikely.

The NRC Report  referred to in Mr. Hasan’s Memorandum –Fluoride in Drinking Water: A Scientific Review of EPA’s Standards ( 2006 ) – did not “evaluate nor make judgments about the benefits, safety, or efficacy of artificial water fluoridation. That practice is reviewed only in terms of being a source of exposure to fluoride.” Further, it concluded with a recommendation to lower the maximum contaminant level goal, rather than a ban on water fluoridation (at p. 352). The Report also summarizes the benefits of fluoridation (at p. 16):

Public health agencies have long disputed these claims [that the potential harm caused by fluoridation outweighs the benefits]. Dental caries is a common childhood disease. It is caused by bacteria that colonize on tooth surfaces, where they ferment sugars and other carbohydrates, generating lactic acid and other acids that decay tooth enamel and form a cavity. If the cavity penetrates to the dentin (the tooth component under the enamel), the dental pulp can become infected, causing toothaches. If left untreated, pulp infection can lead to abscess, destruction of bone, and systemic infection (Cawson et al. 1982; USDHHS 2000). Various sources have concluded that water fluoridation has been an effective method for preventing dental decay (Newbrun 1989; Ripa 1993; Horowitz 1996; CDC 2001; Truman et al. 2002). Water fluoridation is supported by the Centers for Disease Control and Prevention (CDC) as one of the 10 great public health achievements in the United States, because of its role in reducing tooth decay in children and tooth loss in adults (CDC 1999). Each U.S. Surgeon General has endorsed water fluoridation over the decades it has been practiced, emphasizing that “[a] significant advantage of water fluoridation is that all residents of a community can enjoy its protective benefit…. A person’s income level or ability to receive dental care is not a barrier to receiving fluoridation’s health benefits” (Carmona 2004).

We will continue to monitor this case.

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