February 27, 2026
Dolden Class Action Newsletter-February 2026
Forever Chemicals, Lingering Liability: Proposed PFAS Class Action in North Bay
By Christine Galea and Jacqueline Gelfenbein, Dolden Toronto
On October 16, 2025, a proposed class action was launched in the Superior Court of Justice (Ontario) in Sway et al v. Attorney General of Canada, CV‑25‑00101583‑00CP (“Sway”) on behalf of property owners with private drinking water wells within a 3-kilometre radius of Canadian Forces Base 22 Wing North Bay (the “Base”) and Jack Garland Airport located in North Bay Ontario.[1] Sway seeks a proposed class of anyone who owned private residential property with a drinking water well in the area since January 1, 2017. The claim,brought against the Government of Canada’s Department of National Defence (“DND”), and the City of North Bay, alleges that per- and polyfluoroalkyl substances (“PFAS”), often called “forever chemicals”, migrated offsite and contaminated surrounding groundwater due to the handling and use of firefighting foam by both defendants.[2]
From the early 1970s to 1995, DND used PFAS-containing Aqueous Film-Forming Foam(“AFFF”) during firefighting training and related operations at the Base and the Jack Garland Airport. Sway alleges that there were significant PFAS releases from the former firefighting training area adjacent to the Base, and that both defendants allowed PFAS to migrate into surrounding groundwater, contaminating private wells. [3]
Sway seeks $100 million in general and special damages for interference with property, loss of use and enjoyment, diminished property value, and remediation costs, as well as injunctive relief to require containment and remediation of the contamination and $5 million in punitive damagesfor the alleged failure to warn and prevent further harm. The causes of action asserted against the defendants are nuisance, strict liability, negligence, trespass, and statutory breachesof theOntario Environmental Protection Act and the Canadian Environmental Protection Act.[4]
Both defendants publicly acknowledged that the site is the source of PFAS contamination detected in private wells. At a recent public information session, officials from the City of North Bay, DND, and provincial agencies updated residents on cleanup efforts, which are part of a $20-million remediation project.[5]
What are PFAS ?
PFAS are a large group of human-made chemicals known for their extremely strong carbon-fluorine bonds, making them highly persistent in the environment and resistant to natural breakdown—earning them the label “forever chemicals”.[6] Scientific and regulatory bodies, including Health Canada, have found growing evidence that PFAS exposure is linked to serious health effects such as liver and thyroid dysfunction, weakened immune response, pregnancy-related complications, and certain cancers, with emerging research indicating harm at very low concentrations and no known safe level in drinking water.[7]
Beyond general health risks, affected residents in Sway allege other significant impacts including reduced property values due to contamination stigma, ongoing stress from unsafe drinking water, and substantial out-of-pocket costs for well testing, treatment, remediation, and securing alternative or permanent clean water sources.
PFAS Litigation – Emerging Issues and Takeaways
Industry Sectors likely to be impacted
PFAS litigation is likely to affect multiple industry sectors. These sectors include municipalities, water authorities in connection with contaminated drinking water and infrastructure remediation, chemical manufacturers, firefighting and aviation services operating at military bases, airports, and fire departments, property owners and developers facing remediation requirements and potential property devaluation. Insurers, particularly in connection with environmental, general liability and D&O coverage, may also find themselves engaged in PFAS-related claims.
Theories of liability
PFAS related claims are being advanced under several legal theories:
Negligence
Allegations that parties failed to prevent or mitigate contamination, failed to warn of known risks or otherwise did not take reasonable care to avoid foreseeable harm.
Nuisance
Claims arising from contamination that interferes with the use and enjoyment of property, compromises drinking water safety, and contributes to diminished property value.
Strict Liability and Product Liability
There is exposure for chemical manufacturers linked to the supply of PFAS-containing products, particularly where environmental release and resulting harm were foreseeable.
Statutory and Regulatory Breaches
Alleged non-compliance with environmental legislation, including the Canadian Environmental Protection Act and Ontario’s Environmental Protection Act. These claims have the potential to bolster regulatory enforcement efforts and private actions by establishing statutory liability alongside common law duties, which would potentially increase remediation obligations and pressure to settle.
What American PFAS Cases May Signal for Canada
PFAS litigation in the U.S.A. has become a significant legal and financial challenge. As of December 2024, PFAS litigation has been commenced in 31 states by state and municipal governments and public water authorities.[8] These claims have targeted manufacturers like 3M and DuPont for the remediation of contaminated water and soil from AFFF. This has led to multi-billion-dollar settlements, illustrating the considerable economic exposure associated with PFAS.
A central issue has been the interpretation of pollution exclusions in Commercial General Liability policies (“CGL”) with insurers and policyholders challenging whether older or specific policies may provide coverage for PFAS related liability.[9] In response, parties have deployed layered insurance programs, engaged in coverage litigation and in some instances settlements to resolve PFAS claims. Insurers have also denied coverage for certain PFAS class actions. Indemnity reserves remain high and defence costs have increased due to the factual and scientific complexity of PFAS claims. PFAS specific exclusions continue to be proposed but their applicability is on a case-by-case basis. The invocation of various defences signals that even if a policy predates the pollution exclusion, coverage is not always guaranteed. Unlike the asbestos era, insurers are now proactively tightening policy language to preemptively lower exposure to PFAS claims.[10]
Canadian PFAS Litigation is on the Rise
Nova Scotia
On July 8, 2025, a proposed class action was filed on behalf of property owners in an area next to the Yarmouth Airport in Nova Scotia. The claim alleges that properties surrounding the Yarmouth Airport were contaminated by PFAS due to firefighting foam used at the airport’s firefighting training area. It is alleged that there are detectible levels of PFAS contaminants in the well water in the affected area, exposure of which is hazardous to health and also results in a diminution in property values.[11]
British Columbia
On June 21, 2024 the British Columbia government filed a proposed national class action against manufacturers of PFAS, which seeks to recover costs of detecting and removing the forever chemicals from drinking water systems across the country.[12]
On September 16, 2024, another proposed class action was commenced in British Columbia by the owner of a private well whose water supply was contaminated with PFAS. The action is brought against major chemical manufacturers and alleges widespread PFAS contamination of drinking water supplied by private wells to represented properties.[13]
Closing Remarks
The rise of coordinated PFAS litigation could become a national trend. Courts will increasingly be asked to grapple with PFAS contamination coming out of various contexts which will ultimately develop Canadian jurisprudence on PFAS related theories of liability. As more claims emphasize damages outside of bodily injury such as property damage and remediation, insurers may face difficulties in questions of coverage. In claims that allege ongoing contamination they will likely deal with an increase in duty to defend disputes.
As the litigation in Sway unfolds, it will shed light on the complexity of environmental litigation in Canada and may expose gaps in how persistent contaminants are addressed in both legal and insurance frameworks. The litigation engages multiple sectors including municipalities, water authorities, chemical manufacturers, firefighting and aviation services, property owners, property developers and insurers, each facing potential exposure to liability, regulatory or coverage considerations.
Sway also prompts discussion of emerging, largely under-explored issues: long-tail contamination liability, where claims arise decades after exposure; insurance and coverage challenges, including triggers, pollution exclusions, and remediation cost allocation; economic damages, such as property devaluation and well treatment expenses; and the impact of evolving science and regulatory standards on duty of care, negligence, nuisance, and other theories of liability.
For further information or if you have any questions about the above article, please contact the authors: Christine Galea, Dolden Toronto, Email: cgalea@dolden.com and Jacqueline Gelfenbein, Dolden Toronto, Email: jgelfenbein@dolden.com.
Redrawing the Disclosure Line: How the SCC’s Lundin Mining Ruling Expands ‘Material Change’ Obligations
David Girard and Laura Friedrich, Dolden Calgary
On November 28, 2025, the Supreme Court of Canada (“SCC”) released its highly anticipated decision in Lundin v. Dov Markowich, 2025 SCC 39 (“Lundin”). Lundin dealt with the difference between a “material fact” and a “material change” under the Ontario Securities Act (the “Act”) and clarified the test for leave to commence an action for breach of disclosure obligations. The SCC found an investor can sue a company for not immediately disclosing changes that affect the company’s business, operations, or capital, and public companies must inform investors about information that could impact the value of company shares.
Background
In October 2017, a rockslide occurred 6 days after Lundin Mining Corporation detected instability in the pit walls around its copper mine. The rockslide caused Lundin Mining to slow its operations and lower its production forecast for the next year. Lundin Mining did not publicly disclose the rockslide until one month after it occurred. During the period of non-disclosure, and without knowledge of the rockslide and its implications, the plaintiff purchased 10,000 shares in the company. One day after the rockslide’s public disclosure, share prices in Lundin Mining plummeted by 16 percent.
Section 138.3(4) of the Act requires disclosure of a “material change” in “business, operations, or capital” within 10 days of such change. “Facts” under the Act, on the other hand, can wait to be shared as part of regular business updates. At issue in this case was whether the rockslide constituted a “material change” in operations that triggered the statutory duty to disclose under the Act.
As required by the Act, the plaintiff applied for leave to commence a secondary market liability claim against Lundin Mining for its failure to make timely disclosure of a “material change”. The plaintiff also applied for the case to be certified as a class action.
The Superior Court of Justice (“ONSC”) dismissed the plaintiff’s motion to start the lawsuit against Lundin Mining and denied class action certification. The ONSC’s reasoning was that the rockslide was not a “material change” as contemplated by the Act, and Lundin Mining was not required to disclose the event. Instead, the ONSC determined that since Lundin Mining continued on with its business as a mining company, there was no “material change” as alleged.
The Ontario Court of Appeal (“ONCA”) disagreed with the ONSC’s ruling, adopting a broader definition of “material change”. The ONCA gave permission to commence the action against Lundin Mining and sent the certification issues back to ONSC. Lundin Mining appealed to the SCC, arguing that the ONCA’s interpretation of “material change” was too broad and that operational hazards should not be treated as “change”.
The SCC Decision
The SCC dismissed Lundin Mining’s appeal in an 8 to 1 decision and allowed the action to proceed. The Court held the ONSC judge interpreted the Act too narrowly. The Act purposely does not define words like “change”, “business”, “operations”, or “capital”, to ensure the law applies to many different industries. Additionally, the test for leave under section 138.8(1) of the Act requires only a “plausible analysis of the applicable legislative provisions, and some credible evidence in support of the claim”. In other words, the plaintiff only needed to show evidence supporting a plausible application of the legislation to the facts rather than who would win at trial.
The SCC further held that the pit wall instability and rockslide caused a “material change” in the company’s operations, influenced its planning, and changed its production forecast. A plausible application of the Act to the evidence showed a realistic chance that the action could succeed.
Takeaway
The SCC decision in Lundin favours a broad definition of “material change” that in turn is favourable to plaintiffs by increasing the likelihood that leave is granted for secondary market class action lawsuits. Following this decision, companies should be aware that more internal operational events may be classified as “material change” and they may need to disclose information sooner and more frequently.
For further information or if you have any questions about the above article, please contact the authors: David Girard, Dolden Calgary, Email: dgirard@dolden.com or Laura Friedrich, Dolden Calgary, Email: lfriedrich@dolden.com.
