The claim, filed on Nov. 25, alleges that Transport Canada is liable to the proposed representative plaintiffs and the class for nuisance, strict liability, negligence, trespass and breach of statutory duty under the Canadian Environmental Protection Act.
The class was defined as persons owning real property and residing in the Town of Torbay, NL, after Jan.1, 2024, in the impacted area comprising several streets and those who owned civic properties on select roads.
According to the claim, Transport Canada owns and is responsible for the lands that were identified as a Federal Contaminated Sites Inventory, Disposal Site 2 and Fire Training Area, located at St. John’s International Airport, 500 metres southwest of the impacted area of the town. The site was said to drain northeast and was located at the headwater of the impacted area’s primary watershed system.
The site was said to previously be used for firefighter training, involving the release of aqueous film-forming form (AFFF), which contains high concentrations of per- and poly-fluoroalkyl substances (PFAS). The training program took place from the 1980s to 2004. The release of AFFF was used for training for aircraft fires, and the claim alleges that this was done without subsequent capture or containment to prevent PFAS migration into the groundwater.
After the program, remediation testing was said to have found various contaminants, including PFAS. In 2011, the provincial government corresponded with Transport Canada to ensure that drinking water wells were not affected by the contamination migration, requiring it to do a study.
“The study was publicly reported as having concluded there was no detection of contaminant from the Contaminated Site in the deep aquifer used for drinking water supply, whereas water samples from shallow brooks originating at the Contaminated Site indicated significant water quality impacts,” the claim reads.
Transport Canada was said to have conducted periodic monitoring of the groundwater since 2012, but the results were unknown to the class, while environmental testing on the adjacent lands determined that there was and continues to be PFAS migration into the drinking wells of the impacted area.
“Transport Canada is responsible for off-site impacts originating from the Contaminated Site, including off-site impacts in the form of PFAS contamination.”
The claim said that once in the environment, PFAS subcategories can cause “extensive and long-lasting environmental contamination” due to the properties of spreading quickly in water, not absorbing on soil or sediment and not biodegrading in conventional treatment systems for drinking water.
PFAS in drinking water was said to pose a serious threat to human health as it is “readily absorbed in human tissues after oral exposure, extremely stable and persistent once ingested and resistant to metabolic degradation.”
It was said to cause health problems such as “testicular cancer, kidney cancer, liver damage, autoimmune and endocrine disorders, preeclampsia, ulcerative colitis, thyroid disease and others,” arising months or years after exposure.
Transport Canada commenced its water sampling program on Jan. 1 where it collected samples of water from privately-owned drinking water wells located within the impacted area, including the wells owned by the plaintiffs on their property.
Transport Canada was said to have not disclosed to the participants its knowledge of PFAS detection in the groundwater and its extent between the site and the impacted area, nor indicated that the site was where PFAS contamination originated, in soliciting consent.
The results of the water sampling program established unsafe PFAS concentrations in the groundwater supplying the drinking water wells of the impacted area. The full extent and geographic scope of the PFAS migration were said to be unknown to the plaintiffs and the class.
Transport Canada began delivering bottled drinking water in May and continues to do so. It notified the plaintiffs and class in September that the PFAS migration originated from the site.
Due to the PFAS discovery, the fair market value of the properties owned by the plaintiffs and the class in the impacted area was said to have been significantly reduced. Those who listed their properties were not able to sell or were otherwise impeded from the planned sale or refinancing of their properties.
It was alleged that Transport Canada knew or ought to have known that non-capture during the program was likely to do damage to the lands adjacent and that there was substantial interference with the class’s common right to clean water and the use and enjoyment of their properties, falling under public nuisance.
It was said that not only did Transport Canada fail to take appropriate containment and remedial measures, but it also did not provide effective warning for the presence of PFAS migration nor communicate the risks to health and safety. It alleged the migration into drinking water wells and people’s properties was trespass.
The class members were said to have experienced mental anxiety, stress and psychological upset and that the circumstances have had and continue to have a negative impact on the class’s enjoyment of life.
The claim asks for general and special damages and an order that Transport Canada is required to implement control and remedial measures at the contaminated site, the lands adjacent and the impacted area in order to prevent the continued migration of PFAS.
In the alternative, it asks that the plaintiffs and class members be allowed to remediate the properties they own to eliminate PFAS, paid for by Transport Canada.
While the claim outlined the class’s alleged suffering, the class does not seek damages for individual personal injuries caused by off-site exposure to PFAS. However, it was specified that it does not waive these claims.
The proposed class action has not yet been certified. It was requested that the trial take place in St. John’s.
If you have information, story ideas or news tips for Law360 Canada on business-related law and litigation, including class actions, please contact Anosha Khan at anosha.khan@lexisnexis.ca or 905-415-5838.