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Unapologetically Canadian
Unapologetically Canadian

Episode 9 · 4 years ago

Environmental lawyer Charles O'Brien's EMF case

ABOUT THIS EPISODE

Independent environmental lawyer Charles O'Brien describes why his EMF case should be authorized as a class action and why he practices solo in Montreal. To him, being a Canadian means valuing diversity and enjoying a sense of community. To read the transcript, refer to: https://traceyarial.com/blog/charles-obrien-emf-case/.

My name is tracieril and I am an apologetically Canadian. Here Charles O'Brien, who is the lawyer who just attempted to get a class action about electromagneget fields passed in Quebec, authorized, authorized in Quebec as a class action. But this is so far. It's been a three year journey and we just got the judgment back and we were not authorized. And I say we because my husband has been the technical expert the last couple of years and so I've started to take up kind of personal interest in the case, which is not usually what I do as a journalist, but that's what's happened. So that's why I'm being public about it and that's why I helped start a nonprofit to help publicize and continue Charles work. But we are still in the process of trying to get this class action authorized. Take Charles. But the other thing that you need to know, is a listener, is that Charles and I have been friends, we've just determined, for twenty two years, and so we have been. So I'm biased on that side too. I want him to win. So good so, but the challenge is not authorized. Means that we have to either appeal the decision or do something else. So we might as well start off with that first. What how do you feel about the decision? 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 about the issue of the rights of Fluor and fauna, which I thought we made a very strong case for and was not really opposed at all by the other side, and it was very shortly and, I don't think,...

...very seriously treated by his Lordship in the decision. So on that aspect I am quite concerned. I don't think that to say because we can eat animals they don't have rights, and that, as far as I can tell, was the basis of the decision. On the other hand, his Lordship was very clear that the case was, in his view, far too complicated to proceed as a human of effects case, because generally us sue either one party or 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 is certainly 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 were trying to disproof, and it's also complicated in the fact that the governments have been, I would say, very unquestioning in their view of the claim that safety code six and similar standards that are used elsewhere for emf is an acceptable standard. It really is. It's not a standard at all, and that's one of the mistakes the judge makes, is to call it the standard. It's called a guideline here, but we're not even sure it's applied. It certainly doesn't apply to cumultive effects. Modern environmental laws all about cumulation, is all about the multiplicity of sources of a kind of pollution. That effect. Devil and the judge really seem to prefer to have an assessment based on either one source, ie. Smart leaders or towers or what have you. But we're cases like that have been brought in the past, in particular, and BC the Davis case. They failed because the defendants hamply come to court, like in the old water pollution cases, and say that we're...

...not the only people dumping, there are other sources of MF and therefore you can't paint it on us. So we intentionally chosen more complicated approach. Pedro Grigoryo put together a very well thought out methodology for trying to weigh the various emissions of all the different polluters who comes to EMF, with the help of our other experts, and so I think, 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're trying to protect the victims. So you I think, the court is better and really obliged to find a way as efficiently as possible to take the evidences 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 that. The next step is either appeal this decision or what? Well, if we don't appeal, the other option would be to file a somewhat peared down version of a cumular 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, and given that G is going to be the next big source after towers and smart meeters, I think we would limit it to those kind of I talked 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 Emth, but the option would be to pair it down to the very least number necessary from the various industries to make sure that the main contributors to be in that pollutioner there right and I guess why. I mean...

I've been working on this for more than three years, because the case itself, that's been going on for three years and it took some time to set up in the first why do you care so much about this issue? There's a couple of reasons for that. One of the things that bothers me the most is that, like led or is best as a climate change tobacco is the most recent example. I am personally bothered where the industry influences the science and convinces the government that there is no pollution problem, there are no victims, when fact there are. So the false science aspect of it is very bothers into me. It's I hate dishonesty. I considered 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. That's one thing. The other reason that I decide to do this is that Quebec is the most open minded jurisdiction to environmental class action suits, both in terms of authorizing them and also in terms of funding. EMF has not been able to be prosecuted as a class action anywhere. There have been discreet cases about brain cancer or brain tumor 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 and that situation. They tried to sue for smart beaters only and they were blocked because the defendants brought experts who said even if there are emf missions 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 claim that humans in the EMF, which is is laughable quick frankly. But the other option, which is to choose the...

...largest emitter and sue them only, has failed. So the cumulation approach is necessary. Quebec is open to class actions and Quebec has a funding provision which, unfortunately, we didn't get funding, but there are less costs involved as well. So this is the red jurisdiction to mark case like this as well. When you go to Class Action Conferences, the Quebec 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 case and then they become national and the Quebec lawyers end up sitting in the backseat until the decision is made elsewhere in Ontario. Usually you'R MBC and then we just follow along, and the judges really want to have Quebec at the forefront of class actions, as were very strong and environmental law and environmental class actions, and in particular in Quebec, were far ahead of everybody else in terms of the rights of Fluor and fauna. It seemed to me that this was the kind of such subject matter that Quebec would be interested in and could lead so that was why I put those two elements together, both the cumular effects of BMF and the rights of flora and fauna, and of course, Floren fauna are clearly affected by m actress as humans are. Right from there, I'm questioning because I don't want to ask you questions about strategy because I know you're still working that out and we've just got the judgment. I mean 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. It's one of the things that they're judge pointed out is that you are a essentially a one man operation. He actually found that some found that questionable as a way to operate. I'm surprised because it would...

...seem to me that a one person operation is actually more than limber and able to do kinds of cases that would be different for then other major firms might be able to handle, primarily because you don't have to worry about conflict of interest as much. That's right. It's hard. Is An issue here, for sure, exactly, and one of the things that I noticed incullback is that a lot of cases that otherwise might have grounds to be taken up by someone isn't often are left behind because firms are worried about conflicts with other clients, and so I thought that they would have been. I thought he would have been impressed by your handling of this. Can you talk about why you operated the one pusson operation and what's going on with what you've done in your career to that? I would start with this case and then I'll tell you more afterwards. Okay, this case is all about experts. Any EMF case is about experts, and when Marcel Durfort spoke to me and asked me to take this on, I said to him ourself, you bring me an expert, bring me a qualified expert, I'll take on the case. And I heard back from Marcel again about eight months later in another phone calls in Marcel. We had this conversation eight 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 experts and and I also had the benefit of Pedro, your husband, who, as a friend and as an expert, was able to oversee people have community that might have a bias or 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 standard 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 prosecute of the 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 but 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 the nature of the emissions, for the nature of the damage coughed. So in this case it was about having the experts. I did approach other lawyers, but you know, they want to be paid and we didn't have any funding for that. So you use the resources that you have. We had a essentially free experts, or very affordable experts, and and of a quality that is second to not so in that case I wasn't at all bothered by it. With regard to why I'm a sole practitioner in Environment Mental Law, part of that is the fact that I like to choose cases that I think will be jurisprudence making that will open a door for other cases in the future. The law firms are more interested, usually in defense 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 the cases the way that I want, and what I've done to a fair extent is bring in notions from outside Quebec and it stead 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 in 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. In the tobacco case, it was very hard for them, for the names, 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 from sid 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 are exists. I'm trying to push the envelope and environmental law and get better environmental precedents here Quebec. Now that sort of brings up the whole why we've been stayed in Quebec, because you have some education from the US, you have the possibility of going in a whole bunch of other different couches and you could probably be more financially solvent in another place. What made you stay here? 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, possibly more. Quebec, when I started working here twenty years ago, was well behind the curve in environmental law and and Canada is to 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 precedent in Quebec than working in the states in a field that already had been paved, existed and wasn't going to change much. So you're a trail bright placeless here. Yes, I am. Yeah, and if doesn't, that mean making sacrifices, personal sacrifices, sure then, and having personal gains to because you have a family here. Most lawyers are interested in making money. Some lawyers are interested in making money and having good reputation, and they're a handful that are actually trying to do good works and are less concerned about the other two. So the sacrifice is financial, but I 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, this 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 flor 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 personal choice, right. It's the way I want to do things. Yeah, yeah, but it's a it's a thoughtout personal choice. It's not like it just so of have been. It's not like you've been carried into it. You've sort of directed your own or have you been carried into it to an extent? No, make decisions along the way. I've been offered jobs in large law firms. I've worked in a large law firm and I was offered jobs in Vermont after I graduated with my masters from Vermont, but I thought there was more important to try to establish a stronger environmental law basis here, create a jurisprudence here where Morgod...

...can be done. I'm not required in Vermont, I'm not required in France, but there are very few plaintiffs lawyers in Quebec. They're again not that many more in Canada. For environmental issues and for Flor and fauna, there are no lawyers doing anything at all. But one of the things listeners, I mean some of the things listeners, don't know is your history in Quebec and you are roots here and your reputation here, I mean 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 about. Well, I was born here, grew up here. My family has been here for at least a Hundred Years Anyhow, and obviously you stay in your many but friends left Quebec right when, when really back got elected and people became concerned about referenda, et Cetera. Most of my friends moved to on Terry or the states. I had no interest in doing that and even though I studied abroad, I came back here. So I feel an attachment to Quebec, into Canada, for sure. And that leads to my final question, which is, do you consider yourself the Canadian and, if so, why? I most certainly do. I think the answer to the why has to do with values. You know, we are certainly different from the 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 say we want to do, but there's a there's a civility here that I appreciate and a sense of neighborhood that I haven't found so much elsewhere. So I think that's all part of it. Well, what about yours? Ask so much now. Oh Yeah, I do love Montreal. That's the cultural aspect, for sure. I just...

...got back from Fred where I was explaining to people in Panama that we had jazz music and we had Jackie Robinson because we had an openness to colored people where the states did not, and I think especially now you can see our openness to people of all cultures and backgrounds and colors and religions, and I think that's great thing. I'm pleased with that. I had a friend who was once asked if there was a black problem in Toronto. When she said Yeah, we don't have enough of them, I thought was already goody, good answer. It isn't fair. That's 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 that the food in the food, music, they entertainment, everything. It's I think we'll share that. In terms of an attachment too much. Yeah, I didn't. Yeah, I like you, but in Quebec in particular there's 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 the Quebec mindset. is a sense of community, and I think that's wonderful. Okay and I really appreciate you talking to me a pleasure. Thank you for listening to an apologetically Canadian.

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