By Ahmad Hathout
The Supreme Court of Canada (SCC) late last week denied leave to appeal applications challenging the upholding of a ruling that allows the formation of a class of plaintiffs in Quebec to file a lawsuit against Apple and Samsung for alleged phone radiation harm.
The two largest smartphone manufacturers in the world argued in their submissions to the SCC that allowing the authorization of the class of plaintiffs to bring the companies to court for punitive damages based on what they called unfounded claims of RF harm would challenge – and effectively render useless – the radiofrequency (RF) exposure standards set by Health Canada. The companies said they have been compliant with federal regulations and there has been no claim of injury in the class application.
The companies sought to challenge a ruling from the Quebec Court of Appeal that upheld a lower court’s decision to certify the class that alleges the companies, since September 2016, have not been properly informing users that RF radiation into human tissue is allegedly higher, and therefore harmful, when cellphones are held at less than two millimetres from the body.
A lack of instructions to protect users against this alleged risk, the plaintiffs claim, constitutes a breach of Quebec’s Consumer Protection Act (CPA).
The plaintiffs used several pieces of evidence to back their claims, including research papers, sworn statements, newspaper investigations, and a 2017 CBC Marketplace investigation that found 81 per cent of surveyed Canadians didn’t know that “hidden” in cellphone manuals were instructions to carry their phones at least five – sometimes 15 – millimetres away from their body if they want to reduce RF exposure.
The court of appeal upheld the class certification decision, arguing that the baseline threshold for a civil action was met based on the evidence presented.
If the plaintiffs decide to move forward with the lawsuit, they still must prove in trial court that cellphones pose a risk or danger when placed too close to the body, which would trigger a duty to warn consumers beyond what is already required by federal regulators.
According to Apple, the evidence is “theoretical,” “vague” and “speculative” and the SCC has previously ruled that class actions cannot be underpinned by evidence rooted in speculation or hypothesis.
