Written by Terri-Lee OleniukDavid TupperJames Sullivan, KCAnthony Cayer and Karine Russell, Blake, Cassels & Graydon LLP

Environmental class actions have become common for addressing environmental damages and seeking compensation through the courts. This trend is growing, particularly with respect to climate change and chemicals in products, posing significant legal, financial, operational and reputational business risks. Developing strategic responses is essential to minimize these risks effectively.

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Below are key trends in environmental class actions and considerations for mitigating risks:

  1. ESG Claims. Consumer and security-holder environmental class actions have increased in recent years, driven by stricter environmental, social and governance (ESG) disclosure requirements. In particular, greenwashing claims are rising, necessitating vigilant monitoring of corporate disclosure, communications and marketing practices.
  2. Climate Change Litigation. Climate change class actions have grown globally, with significant cases in the U.S. and Europe against both government and corporations. These actions aim to reduce greenhouse gas emissions or seek compensation for climate-change-related harms. In Canada, such litigation has mainly targeted governments, but actions against corporations are expected to grow.
  3. PFAS Litigation. PFAS (or perfluoroalkyl and polyfluoroalkyl substances), found in products like non-stick cookware and firefighting foam, have led to significant litigation due to their alleged health risks. Recent U.S. settlements highlight the potential for similar actions in Canada. Canadian cases have focused on drinking-water contamination, particularly near military and firefighting sites, with future claims likely coming from local governments and Indigenous bands.
  4. Quebec Class Actions. Quebec has seen more conventional environmental class actions than other provinces, including noise complaints, dust and pollutant issues, and contamination. Quebec’s permissive commonality criterion at the authorization stage has facilitated these actions. Historical decisions have set a precedent for successful environmental class actions in Quebec, and this trend is expected to continue.
  5. Strategies for Businesses. Proactive planning is crucial for managing environmental litigation risks. Businesses should develop an emergency response plan, review internal policies and procedures, and ensure adequate record-keeping practices. Engaging external counsel, communications specialists and experts early on, as well as taking other steps such as reviewing insurance coverage, can be valuable for businesses facing these issues and help them minimize legal and financial repercussions.

Have more than five minutes? Watch our recent webinar on this topic or contact any member of our Environmental or Class Actions group.

Blakes and Blakes Business Class communications are intended for informational purposes only and do not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired.

Republished with permission from Blakes. © 2024 Blake, Cassels & Graydon LLP

About the Authors

Terri-Lee Oleniuk, Partner, Calgary

Terri-Lee’s practice focuses on project-related issues concerning natural-resource development, specializing in regulatory, environmental and Indigenous law issues. She acts for a diverse range of clients on environmental assessments and regulatory proceedings to obtain approvals for major developments in sectors such as oil and gas, pipeline, liquefied natural gas, mining, natural-gas processing, petrochemical, electricity transmission, hydro, solar, and wind.

David Tupper, Partner, Calgary

David’s litigation practice involves all aspects of corporate/commercial litigation, with a focus on construction, securities, insurance, environmental, and oil and gas law. He regularly appears before all levels of courts in Alberta, the Federal Court and the Federal Court of Appeal. In securities matters, David frequently appears before the Securities Commission of Alberta. He also maintains a considerable advisory practice relating to environmental issues, property and liability policies, and reinsurance losses.

James Sullivan, KC, Partner, Vancouver

Jim is senior trial and appellate counsel with experience in a wide range of complex litigation matters. He has been named a Class Action Litigator of the Year in the Benchmark Canada Awards and a “Global Elite Thought Leader” by Who’s Who Legal: Product Liability Defence. Jim has appeared as counsel in British Columbia, Alberta and Ontario, as well as at the Supreme Court of Canada. He has represented clients in numerous major international class actions and other cases in the areas of corporate-commercial, energy, contaminated sites, regulatory offences, constitutionality, privacy, consumer protection and product liability. Jim was appointed Queen’s Counsel (now King’s Counsel) by the B.C. government and appointed to the Judicial Advisory Committee of B.C. by the Canadian Department of Justice.

Anthony Cayer, Associate, Montréal

Anthony practises civil and commercial law, focusing on product liability and consumer protection class actions. He represents clients in the context of extraordinary proceedings such as injunctions. He also advises clients on regulatory and criminal matters in government-led investigations and on conducting internal investigations. Anthony has trial experience and regularly appears before the Superior Court of Quebec.

Karine Russell, Partner, Vancouver

Karine is an experienced litigator with expertise in defending class actions. She also represents clients in product liability, consumer protection, corporate-commercial and competition/antitrust cases. Karine has appeared as counsel at all levels of court in British Columbia and has assisted in matters before the Supreme Court of Canada. She also has trial experience and regularly appears in chambers in the Supreme Court of British Columbia.