July 17, 2018

Unapologetically Canadian Episode 9: Environmental lawyer Charles O’Brien’s EMF case

I recently interviewed Charles O’Brien who is the lawyer who intended to get the class action about electromagnetic fields authorized in Quebec. So far, it’s been a three-year journey.

I spoke to him last month just as he got the judgement and found out that we were not authorized. And I say “we” because my husband was the technical expert for the last couple of years. And so I started to take a personal interest in the case which is not usually what I do as a journalist but that’s what happened. So that’s why I’ve been public about it. And that’s why I helped start a nonprofit to help publicize and continue Charles’ work. We are still in the process of trying to get this class action authorized.

[thrive_link color=’dark’ link=’https://www.mixcloud.com/TraceyArial/unapologetically-canadian-episode-9-independent-environmental-lawyer-charles-obrien-emf-case/’ target=’_blank’ size=’big’ align=’aligncenter’]Listen to Unapologetically Canadian Episode 9: Environmental lawyer Charles O’Brien’s EMF case[/thrive_link]

[00:01:08] The other thing that you need to know as a listener is that Charles and I have been friends we’ve just determined for 22 years. So I’m biased on that side too. I want him to win.

[00:01:16] Oh good. So the challenge is not being authorized means that we have to appeal this decision or do something else. So we might as well start off with that first.

How do you feel about the decision?

[00:01:32] Well I think that there are a number of errors in it, both in law and in terms of the facts that we presented. I’m particularly concerned over the issue of the rights of the flora and fauna, which I thought we made a very strong case for and was not really opposed at all by the other side. It was very short and I don’t think very seriously treated by his lordship and so on that aspect, I am quite concerned. I don’t think that to say that because we eat animals, they don’t have rights and that as far as I can tell was the basis of his decision.

[00:02:12] On the other hand, his lordship was very clear that the case was in his view far too complicated to proceed as a cumulative effects case because generally you sue either one party one industry and we sued all of the emitters all the major emitters, two of each for the most part and the governments. And it certainly is the case that our claim is complicated.

It’s complicated in the sense that there are many sources. It’s complicated in the sense that there is false science that we’re trying to disprove and it’s also complicated in the fact that the governments have been I would say very unquestioning in their view and claims that safety code 6 and similar standards that are used elsewhere for EMF is an acceptable standard. It really isn’t. It’s not a standard at all. And that’s one of the mistakes that the judge made is to call it a standard. It’s called a guideline here but we’re not sure it’s applied and it certainly doesn’t apply to cumulative effects.

Modern environmental law

Modern environmental law is all about cumulations. It’s all about the multiplicity of sources of a kind of pollution effect. And the judge really seemed to prefer to have an assessment based on either one source ie Smart Meters or towers or what have you. But where cases like that have been brought in the past, and particularly in BC in the Davis case, they failed because the defendants simply come to court like in the old water pollution cases and say that we are not the only people dumping. There are other sources of EMF and therefore you can’t pin it on us.

So we intentionally chose a more complicated approach. Pedro Gregorio put together a very well-thought-out methodology for trying to weigh the various emissions of all the different polluters when it comes to EMF with the help of our other experts. And so I think that though it is a hard case, this is the only way to prosecute it and the judge seemed to say that it was too complicated for a court to handle. Which I think is not how these matters are to be considered in a class action context where you are trying to protect the victims.

[00:04:38] So I think the court is better and really obliged to find a way, as efficiently as possible, to take the evidence that is there and make the most of it and decide whether or not there’s a case and if there is a case then require the defendants to show that the claims aren’t true.

So I guess that’s the next step is either appeal this decision or what?

[00:05:05] If we don’t appeal, the other option would be to file a somewhat pared-down version of a cumulative effects case, where we would, instead of trying to get all of the industries involved as defendants; we would limit it to the most severe polluters. Given that 5G is going to be the next big source after towers and smart meters, I think we would limit it to those kinds– I’d talk to the experts of course, and find out who they think are the essential defendants. I think the governments have to be there because of the lack of a serious standard for EMF, but the option would be to pare it down to the very least number necessary from the various industries to make sure that the main contributors to EMF pollution are there.

Why do you care so much about this issue?

[00:06:15] There’s a couple of reasons for that. One of the reasons that bothers me the most is that like lead, asbestos, climate change, tobacco is the most recent example, I’m personally bothered where the industry influences the science and convinces the government that there is no pollution problem and there are no victims, when in fact there are. The false science aspect of it is very bothersome to me. I hate dishonesty. I consider it to be dishonest. The government has played along with this. I don’t understand why not just our government but many significant governments including World Health and other organizations like that.

The other reason that I went with this is that Quebec is the most open-minded jurisdiction to environmental class action suits, both in terms of authorizing and also in terms of funding. EMF has not been able to be prosecuted as a class action anywhere. There have been discreet cases of brain cancer or a brain tumour in cell phones but nobody has really tried to put together a serious EMF class action suit with the exception of the case that was brought in British Columbia, which is the Davis Case. In that situation, they tried to sue for smart meters. And they were blocked because the defendants brought experts who said, even if there are EMF emissions from smart meters, there are other EMF emissions from a variety of sources. They again claimed that there were natural sources, which is not true in regards to non-ionizing radiation and they claimed that humans make EMF which is laughable. But the other option which is to choose the largest emitter and sue them only has failed. So the cumulative approach is necessary.

Quebec is open to class action and Quebec has a funding provision, which unfortunately we didn’t get funding, but there are fewer costs involved as well. So this is the right jurisdiction to bring a case like this.

As well, when you go to class action conferences, the judges continue to complain that in Quebec class actions come from other provinces or come from the States. Many of the class action suits that are authorized are photocopies of California cases or Ontario cases. And then they become national. The Quebec lawyers sitting in the back seat until the decision is made elsewhere. In Ontario, usually or in BC and then we just follow along and the judges really want to have Quebec at the forefront of class actions. As we’re very strong in environmental law and environmental class actions, and in particular Quebec we’re far ahead of everybody else in terms of the rights of flora and fauna, it seemed to me that this was the kind of subject matter that Quebec would be interested in and could lead. So that was why I put those two elements together both the cumulative effects of EMF and the rights of flora and fauna and of course, flora and fauna are clearly affected by EMF just as humans are.

[00:09:34] From there. I am questioning because I don’t want to ask you questions about strategy are still working that out and we just thought the judgement and it’s only two weeks old, so it’s not like you’ve had a lot of time to digest it anyway. So maybe we can move on to the rest of your career. One of the things that the judge pointed out is that you are essentially a one-man operation. He actually found that questionable as a way to operate. I’m surprised it would seem to me that a one person operation is actually more limber and able to do some kinds of cases that would be different than other major firms might be able to handle primarily because you don’t have to worry about conflict of interest as much.

Exactly and conflict is an issue here.

And one of the things that I noticed in Quebec that a lot of cases that otherwise might have grounds to be taken up by someone often are left behind because firms are worried about conflicts with other clients. And so I thought that he would have been impressed by your handling of this. You talked about

Why do you operate as a one-person operation and what have you done in your career?

[00:10:52] I would start with this case and then I’ll tell you more after. This case is all about experts. Any EMF case is about experts and when Marcel Durand spoke to me and asked me to take this on. I said if you bring me an expert, bring me a qualified expert, I will take on the case. And I heard back from Marcel again about eight months later in another phone call. I said, Marcel, we had this conversation months ago. And then Marcel went and got top-flight experts.

So I felt comfortable and competent handling this as an environmental lawyer on my own. In particular, because I had world class actions and I also had the benefit of Pedro, your husband, who as a friend and as an expert was able to oversee people in my community that might have a bias for a certain view of things where he doesn’t have that. And so I had not only EMF experts but I had an independent expert who was able to look at their various expertise that was being proposed and to tell me this is credible. This is less credible. You can go this far. You can’t go any further because the stand would make the world dysfunctional from an electricity point of view.

So in this case, I’ve told everybody from day one it’s about the experts and the prosecutor’s legal element of it shouldn’t be that hard. Now I made it more difficult by bringing in a large number of defendants. But it really is a case about expertise. And if you look at our exhibits and our claim as drafted, it is almost only readable by somebody who has an understanding of engineering for the nature of the emissions for the nature of the damage caused. So. In this case, it was about having the experts.

I did approach other lawyers but you know they wanted to be paid. And we didn’t have any funding for that. So you use the resources that you have. We had essentially free experts or very affordable experts and of a quality that is second to none. So, in that case, I wasn’t at all bothered by it.


[00:13:03] With regard to why I’m a sole practitioner in environmental law, part of that is the fact that I like to choose cases that I think will be jurisprudence-making that will open the door for other cases in the future. The law firms are more interested usually in defence work quite frankly where the money is, or government work, where you have to answer to the government or the people that are telling the government what they want done. When I work on my own, I’m able to handle cases the way that I want. And what I’ve done to a fair extent is bring in notions from outside of Quebec and outside of Canada, American law, European law. In this case, some of the leading stuff comes out of India and China. So I take ideas from other countries as progressive as they can be in environmental law. I find lawyers that I can work with, experts I can work with and clients that are sympathetic to the cause right. Clients that have a good claim. And prosecute it that way. So it allows me to do things that other firms couldn’t do.

And it also comes back to the conflicts issue which you mentioned earlier because in a large firm you can’t sue companies like Google or Amazon or whatever the large companies because most large firms have a connection.


[00:14:32] In the tobacco case, it was very hard for the plaintiffs to find a law firm that didn’t have a conflict of interest and the lawyers that took the case for the plaintiffs had to actually walk out of the firms they were in because those firms had conflicts. So a smaller operation gives you the opportunity to do things that are more cutting edge. And I’m not there to reaffirm principles that already exist. I’m trying to push the envelope of environmental law and get better environmental precedents here in Quebec.

[00:15:03] Now that sort of brings up the whole why you even stayed in Quebec because you have some education from the U.S. you have the possibility of going in a whole bunch of other different countries and you could probably be more financially solvent.

What makes you stay here?

[00:15:20] It’s true. I have a master’s from France and from Vermont. I could have worked in the States but Vermont has a lot of environmental lawyers and the States has a lot of environmental litigation. They’re far more advanced than we are by I would say at least a decade, and possibly more. Quebec, when I started working here 20 years ago, was well behind the curve in environmental law and Canada is too. Quebec is catching up. We’ve got very good legislation and our charter is very strong. But the jurisprudence is not there yet. So my calculation was that I could do more good for the environment creating a precedent in Quebec than working in the States in a field that already had been paved existed and wasn’t going to change much.

[00:16:10] So you’re a trailblazer?

Here I am.

But doesn’t mean making sacrifices? Personal sacrifices?


And having personal gains too, because you have family here.

[00:16:29] Most lawyers are interested in making money. Some lawyers are interested in making money and having a good reputation. And there are a handful that are actually trying to do good works and are less concerned about the other two.

So the sacrifice is financial, but that doesn’t bother me. I don’t have huge financial aspirations. I would like to do some good. As much as possible.

One of the reasons this case decision frustrates me is that I thought we were on the path to do something of great value not just for the Quebec victims, human flora and fauna but also for Canadian victims and North American victims where there are class action regimes available. So I’m happy to gamble in that sense. I don’t need the money or the reputation. But it’s a personal choice right. It’s the way I want to do things.

Yeah, but it’s thought out. It’s not like it just sort of happened. It’s not like you’ve been carried into it you sort of directed your own life. Or have you been carried into it to an extent?

[00:17:39] No. I made decisions along the way. I’ve been offered jobs in large law firms. I’ve worked in a large law firm. I was offered jobs in Vermont after I graduated with a master’s in Vermont. But I thought that was more important to try to establish a stronger environmental law basis here, create a jurisprudence here, where more good can be done.

[00:18:02] I’m not required in Vermont. I’m not required in France. But there are very few plaintiffs lawyers in Quebec, again not that many more in Canada, for environmental issues. And for flora and fauna, there are no lawyers doing anything at all.

But one of the things listeners some of the listeners don’t know is your history in Quebec and your roots here and your reputation here in your life in Quebec isn’t just based on doing good as a lawyer you have a history as a person here too. That’s what I want to talk to you about.

[00:18:37] Yes, I was born here and grew up here. My family’s been here for at least 100 years anyhow.

Many of my friends left Quebec when Réné Levesque got elected and people became concerned about referenda etc. Most of my friends moved to Ontario or the States. I had no interest in doing that even though I studied abroad and came back here. so I feel an attachment to get back into Canada for sure.

[00:19:09] And that leads to my final question which is:

Do you consider yourself a Canadian? If so, why?

[00:19:16] I most certainly do. I think the answer to the why has to do with values. You know. We are certainly different from Europeans that I’ve met and the Americans that I’ve met. I think there’s more of a social sense and there also is a sense of wanting to do good in the world. We speak about it a lot. I don’t know if we do as much as we seem to want to do but there is a civility here that I appreciate and a sense of neighbourhood that I haven’t found so much elsewhere. So I think that’s all part of it.

[00:19:55] Oh and what about your attachment to Montreal?

[00:19:59] Oh yeah I do love Montreal. That’s the cultural aspect for sure. I just got back when I was explaining to people in Panama that we had jazz music and we had Jackie Robinson because we had an openness to coloured people where the States did not. And I think, especially now you can see our openness to people of all cultures and backgrounds and colours and religions. And I think that’s a great thing. I’m pleased with that. I Had a friend who was once asked if there was a black problem in Toronto. She said yeah we don’t have enough of them.

[00:20:41] That was a good answer. That’s how Canadians think. We want more diversity and we enjoy it and believe it’s a good thing. Whereas other countries don’t.

It certainly helps with the food, music, the entertainment everything. I think we all share interests and attachment to Montreal. I didn’t grow up here though like you did.

[00:21:06] In Quebec, in particular, there is there’s a sense of being very social and sociable. You know if you watch people in a restaurant, they’re all going to be speaking amongst themselves. And a party is many people together, not groups of people off in corners and that is something that is very much the Quebec mindset and sense of community and I think that’s wonderful.


Tracey Arial

Unapologetically Canadian Tracey Arial promotes creative entrepreneurship as an author, cooperative business leader, gardener, family historian and podcaster.

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