Judge halts Agent Orange class-action lawsuit
Court
ROSIE GILLINGHAM
The Telegram
A Court of Appeal has decertified a class-action lawsuit relating to Agent Orange at a former military base in New Brunswick.
More than 3,000 people from across Canada - including close to 70 from this province - were involved in a class-action lawsuit against the government and the chemical manufacturers.
They were seeking compensation for being exposed to Agent Orange.
However, a decision by Newfoundland and Labrador Court of Appeal Justice Margaret Cameron to overturn a previous ruling by a lower court means the claimants now have to file individual lawsuits.
That process would be more costly and time-consuming.
Retired Brig. Gen. Ed Ring of St. John's - who put his name forward on behalf of all the claimants in the lawsuit - was unavailable for comment Wednesday.
However, last fall, when the merits of the appeal were being argued, he told The Telegram that if those involved have to file individual lawsuits, "98 per cent of them would walk away from this, either because they can't afford it, don't have the time or are too ill."
In the fall of 2007, the federal government announced a $95.6-million compensation package for veterans and civilians who were at the base in 1966 and 1967 and were affected by the U.S. military's spraying of Agent Orange at the Gagetown base.
A one-time, lump sum payment of $20,000 each was paid to those who qualified for compensation. Roughly 4,500 people were eligible for the payment. But many believe it fell short of what the veterans and their families deserve.
In December 2007, Justice Leo Barry ruled the class-action lawsuit against the federal government would proceed in this province, as opposed to New Brunswick.
Since then, the case had been dragging through the system as the government and chemical companies file various motions and appeals.
Last fall, lawyers from both sides argued the merits of an appeal, filed by the government and the chemical manufacturers Pharmacia Corp. and Dow Chemical Group, seeking to halt the class action.
At that time, several people involved in the class action also came to court.
Their fight was all about people who were affected by the U.S. military's spraying of Agent Orange at the Canadian Forces Base Gagetown in New Brunswick.
Agent Orange - a herbicide used by the military to control vegetation and clear dense brush - was used in Gagetown between 1956 and 2004.
The powerful and toxic defoliant was proven to have caused serious long-term health effects on those who were exposed to it.
Used by the U.S. military in the Vietnam War, Agent Orange was recognized to have caused such illnesses as Hodgkin's disease, lymphoma, respiratory cancers, prostate cancer and Type 2 diabetes.
David Eaton, who represents Dow Chemical Group, had told the appeal panel that because of the large numbers involved, the diversity of the group and the specific circumstances of each, it would be difficult to deal with it as one case.
Eaton declined comment Wednesday.
Ring - who served 34 years in the military and was diagnosed with cancer in 1996 - had said they have a right to a fair hearing, despite the complexities of the case.
"This is a significant effort by large companies and the federal government to deny us that right.
"There's a common issue involved here. It's all about what happened in Gagetown."
But the appeal panel agreed with Eaton and didn't believe there was enough to establish the criteria for certification.
For example, Cameron noted that the class may have been too broad, and that it is difficult to narrow its scope.
One issue she had was with the wording of the class: it's defined as "all individuals who were at CFB Gagetown between 1956 and the present and who claim they were exposed to dangerous levels of dioxin or hexachlorobenzene while on the base."
"While various numbers have been used to estimate the potential size of the class," Cameron pointed out, "it is generally agreed that it is in excess of 400,000 people and, thus defined, includes everyone who was at CFB Gagetown, for any period of time, between 1956 and the present, whether exposed to herbicides or not.
"It lacks the rational connection to the causes of action and common issues identified by the plaintiffs. Given the pattern of spraying, its time frame and size of the base, not every one of the 400,000 plus potential claimants in fact have a claim."
She said as it's worded, it "limits class members to those who 'claim they were exposed' rather than those who 'were exposed.'"
Cameron also questioned real common issue in the class.
"The trial division judge did not address the question of whether the (primary) common issue is a common issue for the whole of the class or a series of common issues to be determined for various subclasses," Cameron said.
"Unless the relationship between various chemicals and all types of lymphomas is the same, the determination will have to be made for each type of lymphoma."
The lack of criteria for certification in this case, Cameron said, "undermines the trial division judge's decision that a class action is the preferable procedure."
rgillingham@thetelegram.com
