By Ahmad Hathout
Apple and Samsung, the two largest smartphone manufacturers in the world, are expressing befuddlement that the Quebec Court of Appeal would uphold the authorization of a class of plaintiffs to take the companies to court for punitive damages for what they describe as unfounded claims of health-related harm associated with the emissions of radio frequencies (RF) from cellphones.
The class authorization, which the companies are calling a first in Canada, creates a disastrous precedent involving the approval of classes seeking damages for mere allegations of an intentional violation of Quebec’s Consumer Protection Act (CPA) with no harm claimed, and allows for the inappropriate use of the class action as a vehicle to challenge – and effectively render useless – the RF exposure standards set by Health Canada, according to separate appeals filed last week that the companies are hoping the Supreme Court of Canada (SCC) will hear.
The basis for the allegation brought to the Quebec Superior Court by the proposed representatives of the class of Quebec consumers who had an Apple or Samsung device from September 11, 2016 are that the companies are not 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. This fact, they allege, is not reflected in the radiation tests the companies are required to do to obtain safety certificates from Industry Canada, which relies on the RF exposure limits determined by Health Canada that the plaintiffs claim are already inadequate.
A lack of instructions to protect users against this alleged risk, they say, constitutes a breach of the 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 plaintiffs allege, in this case, that the companies are falsely representing that they are meeting the already inadequate regulatory standards, saying, for example, that Samsung phones are tested at a distance of 15 millimetres when the regulatory standard is five millimetres. Neither, in any case, is capturing how users are really handling their phones in the real world, they say.
The plaintiffs initially sought damages of $13,000 per year until the alleged radiation pollution is curtailed, unspecified damages to “monitor their health condition,” punitive damages, and various injunctive relief.
The lower court ultimately narrowed the class grievance to punitive damages, finding only users with the phones held and used at less than two millimetres from the body may have a claim to any harm from radio frequencies, which occurs when the phone is communicating with cell towers. But none of the representatives of the proposed class allege harm, so claims to compensatory damages were dismissed as “untenable and frivolous.”
The court approved the class to pursue punitive damages, provided they can prove that cellphones pose a risk or danger when placed too close to the body or if the RF exposure is generally harmful, which would trigger a duty to warn consumers about such risks beyond what is required by the regulator. The failure to warn is where and when the damage application applies.
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. Ultimately, the appeal court noted that this was not a determination on the merits of the case, which it said could very well fail at the trial level. (The lower court and the appeal court found many deficiencies in the plaintiffs’ case, including evidence they say didn’t back up certain claims.)
Apple and Samsung, however, don’t see it that way. The central contentions are that the companies are compliant with federal regulations – which Samsung says the appeal court did not factor in its decision – and that there is no claim of injury in the class application.
The duty to warn is only mandated with real danger, which is not applicable with cellphones sold in Canada and is not applicable here because none of the class representatives claim harm, Apple argues in its leave application to the SCC, adding the plaintiffs failed to make “specific factual allegations of intentional, malicious, or vexatious conduct by the Applicants.”
Instead, the evidence the plaintiffs present, according to Apple, is “theoretical,” “vague” and “speculative,” adding the SCC has previously ruled that class actions cannot be underpinned by evidence rooted in speculation or hypothesis.
But the highest court in the land has never tested the burden of demonstration for punitive damages under Quebec’s CPA at the authorization stage, according to the iPhone maker.
As such, Apple would like the high court to clarify, among other issues, “what type of evidence is sufficient at authorization to supplement vague and imprecise allegations.”
Otherwise: “The Court of Appeal’s decision marks a further lowering of the bar for authorization in Québec,” Apple says. “It renders, practically speaking, the authorization of punitive damages automatic as soon as allegations of ‘intentional’ violations or ‘negligent’ behaviour are advanced under the CPA.”
The second major argument concerns what happens if the case proceeds: “It would allow courts in various provinces across the country to opine on what is safe when it comes to RF exposure and to set new testing methods for RF exposure in the context of class actions – something that would be impermissible outside of the class action context.”
Apple added foreign courts in the United States and in Italy have rejected claims that current RF standards do not sufficiently protect the public. Health Canada, it says, has among the most stringent RF energy approaches in the world, calling the limits set by the regulator as “conservative” and “well below the threshold for any potential adverse health effect.”
“Such a result would undermine Health Canada and ISED’s authority as specialized federal regulators, render Canada’s national cell phone testing regime useless, and be contrary to the uniform monitoring and regulation of a national cellular network,” Apple’s application said, adding the appeal court’s decision will “open the floodgates to unfounded and frivolous class actions” that would fail in other parts of the country and “weigh down the already overburdened Quebec court system.”
And then there’s the concern of what this will look like to the public. According to Apple, moving the case to the merits will “upend Canada’s national wireless testing regime based on fear mongering, causing illegitimate worries among cell phone users and undermining consumer confidence in Health Canada.”
Samsung is asking the SCC to answer whether a class action can be used as a vehicle to challenge the regulatory framework set by the regulator, and whether a class action can be authorized solely to claim punitive damages, despite the absence, it says, of any allegation justifying the award of punitive damages.
The case is similar to one that failed in California. The Quebec Superior Court judge in this case found parts of that case was copied and pasted in the applicants’ case here, but concluded that the reasons for the failure of the American case wasn’t relevant in this case.
That said, the first Quebec judge did find deficiencies in the original application, writing scathingly that there is no sufficient evidence to conclude that there is a conspiracy between the companies and the government and no phony testing regime that would show malicious behaviour.
The applicants’ evidence in this case includes a 2020 New Hampshire study, which concluded that cellphones should be equipped with software and sensors that interrupt radiation when the device is too close to the body; a iPhone 3G manual that states exposure to RF radiation may exceed the regulatory guidelines if positioned less than 15 millimetres from the body; a 13-author report in the International Journal of Environmental Research and Public Health that concludes mitigation of RF radiation exposure to users “does not appear as a priority with most cell phone manufacturers”; and a study in Environmental Health called “Scientific evidence invalidates health assumptions underlying the FCC and ICNIRP exposure limit determinations for radiofrequency radiation: implications for 5G.”
