Asbestos

Mesothelioma is caused by exposure to asbestos. If you are being investigated for this cancer you should consider legal representation immediately, even if the diagnosis is not yet confirmed.  It may take some time to understand where and when you were exposed to asbestos if you did not work with raw asbestos but with asbestos containing materials where the asbestos was not obvious.  

410 Canadians were diagnosed with mesothelioma in 2018, the last year for which statistics are available. The number of diagnosed persons has in fact dropped since the 2012 numbers where it was 560 reported cases, however this is largely due to the fact that the Province of Quebec stopped reporting their mesothelioma statistics to Statistics Canada.   The majority of the Canadian Asbestos mines were located in the Province of Quebec, therefore their failure to reports mesothelioma statistics significantly impacts the true number of Canadians who are know to be affected.  

Mesothelioma

If you or a loved one has been diagnosed with mesothelioma, the immediate focus must be to locate and obtain medical treatment. These treatments range from chemotherapy to surgery, and in the case of all aggressive forms of cancer, early treatment is vital.  See our asbestos resources page for information about referrals to the Princess Margaret Hospital. You do not need to live in Ontario to be referred to Princess Margaret.  In some cases virtual consultations can be arranged either with the patient directly or through the patient's family doctor's office.  

Cancers other that mesothelioma can be caused by exposure to asbestos.  These include lung, laryngeal, esophageal, pharyngeal, stomach and colorectal cancers.  With these cancers, particularly in the cases when the injured party is, or was a smoker, there are criteria to be met in order to conclude that the cancer is asbestos related.  First and foremost the injured person's lungs must show evidence of bilateral asbestos-related nonmalignant disease (pleural plaques).  What are pleural plaques? These are plaques/lesions in the lungs which are caused by asbestos particles lodged in the lungs encased in scar tissue.  The minimum latency period for Pleural Plaques to appear on x-ray is 10 years from the date of exposure.  This confirms that the injured party was exposed to asbestos.

Cancer claims also are required to have a physician report confirming that the cancer was caused or contributed to by exposure to asbestos.  

Pleural plaques confirm exposure to asbestos but generally cause little to no disability.  If your doctor confirms that you have pleural plaques your risk of later getting asbestosis, cancer or mesothelioma is greater and your lungs should be monitored for changes.

Asbestosis

Asbestosis is the most common condition caused by exposure to asbestos. This term is broadly used when referring to breathing difficulties caused by asbestos exposure.  Asbestosis can be mild, causing a shortness of breath when climbing stairs, to severe when constant oxygen is required to carry out the simplest tasks.  Asbestosis is a compensable disease and research of the options available to you is suggested.  Please contact us so that we can outline your various options.

Due to the latency period of mesothelioma, being 30 to 60 years following exposure, there are new cases being diagnosed daily.  If you or a loved one has been diagnosed with any of these conditions, after medical care, the next question arises regarding what compensation is available to victims.

This question can be answered in a variety of ways and is dependent on many factors as follows:

Occupational exposure:
This is the largest class of asbestos victims, who are primarily men that worked with products made with asbestos included in the finished product. There is a large range of high risk occupations and industries including:

• pipefitters

• plumbers

• insulators

• welders

• mechanics

• boilermakers

• power plant workers

• oil refinery workers

• pulp and paper mill workers

• steel workers

• military; particularly navy

There were asbestos products manufactured in Canada by companies including Johns-Manville, Babcock & Wilcox, W. R. Grace and Carey Canada. More commonly the asbestos products were manufactured in the U.S. and then distributed in Canada where they were fitted and installed in various industrial settings.  As the danger of breathing asbestos dust was not known, no masks were used and therefore the inhaling of asbestos dust was inevitable.

Asbestos exposure accounts for over a third of reported workplace deaths. 

Bystander exposure:
The women who laundered their husband’s work clothing and the young children residing in the homes with tradesmen who unwittingly brought home asbestos fibers on their clothing and in their hair also were exposed to asbestos.  When asbestos dust was on clothing it became airborne when it was shaken out.  It settled on household items and put women and children at risk of exposure.  Approximately 9.8% of mesothelioma cases are caused by second hand exposure, and this number is climbing.  In our practice, we are seeing an alarming increase as those children are reaching their fifties and sixties.  

Environmental exposure:
This class of injured people were exposed to asbestos simply by living in the wrong place. There are areas in Canada, like Sarnia and Hamilton, Ontario, Trail and Kitimat, British Columbia, or Baie Verte, Newfoundland where due to the high density of asbestos industry even with no members of the family working with asbestos the air contained sufficient asbestos fibers to cause exposure.  

If you lived near one of the asbestos mines in Quebec, and are diagnosed with mesothelioma,  you are entitled to apply to the asbestos trust of the company that owned the mine for compensation.  

What form of compensation is right for me?

Many factors need to be taken into consideration when deciding where to apply for compensation. 

The age of the injured person and how they were exposed to asbestos are the most important factors in the decision about how best to proceed with seeking compensation.  All forms of compensation have time limits for application.  Although health issues feel more immediately pressing, taking steps soon after diagnosis to seek compensation is encouraged.  Please call Brown Law so that we may put forward your options and get information from the injured party before the memories fade further or poor health makes this impossible.  A consultation with us does not put you under any obligation to retain this firm if what may be best for your situation does not require legal representation.  Most applicantions to Workers' Compensation or Veterans Affairs do not require a lawyer. 

History in Canada

Canada has a long tumultuous history with asbestos which was finally banned at the end of 2018. The Federal Government announced the ban in December of 2016 after a long anti-asbestos global push that started when it became clear that asbestos was dangerous.  The ban took effect at the end of 2018. The ban has exceptions and loopholes so asbestos will continue to harm Canadians for many years to come.  

The final Canadian asbestos mine in Thetford Mines, Quebec closed in 2011 when funding was not approved to keep the mine open to export asbestos to other countries.  Many of the asbestos mines were owned and operated by American companies who shipped the asbestos to various production plants in the United States to be used in thousands of products.  At the time that asbestos was first discovered in Canada in 1870 it was deemed to be a miracle product which was lightweight, inexpensive and fire resistant.  Ceiling tiles, welding gloves and ironing board covers all contained asbestos at some point in the history of the material.

In the late 1970s and early 1980s the danger of asbestos became publicly known and it was phased out of use.  Many of the companies who manufactured and sold products that contained asbestos knew of this danger as early as the 1930s but failed to disclose this information to the public or their workers. This was the basis for thousands of lawsuits in the United States.  It is as a result of claims made by workers and family members most asbestos companies are now out of business, having sought bankruptcy protection when they had insufficient assets to pay claims. This is called filing for Chapter 11 protection and the assets remaining in the company were placed in a fund(s) to pay claims as they arose.  

Many of the early funds were underfunded to handle the number of claims that were made and some of those trusts ran out of money and have closed. Newer funds are better structured to enable the funds to continue to pay claims for as long as new victims are diagnosed.  This means that claims are not paid at full value.  This is true of claims put forward by American law firms who generally report their recovery in gross claim value not actual paid amounts. 

How do I know where to apply for compensation?

There are over 60 active Asbestos Compensation Trusts.  What trust(s) should you apply to for compensation? Tell us about your job and what you worked with and leave the rest to us. Because so many of the companies that manufactured and distributed asbestos products in Canada have been bought, sold or merged over the years determining what trusts cover the products which were used is complex.  We have the knowledge and experience to file your claims quickly with the appropriate trusts.  

We are also aware of trusts that are still in the works. Duro Dyne is a trust that is accepting applications in an effort to see how many claims will be advanced to calculate how much money the trust will require.  The most recent filing is Imerys, the owner of the mine that supplied Johnson & Johnson with talc for use in baby powder, in February of 2019. Until the terms and the funding are agreed there is no trust, but there will be at some future point.  We are monitoring these and other possible trusts.  During the time between filing for protection and the formation of a trust the  Statute of Limitations does not run. 

Workers Compensation benefits are available to you if you worked with asbestos and it can be confirmed that that work led to your diagnosis of mesothelioma.  Please review the Workers’ Compensation rules for the Province in which you worked for additional information.  It is important to note that in Canada, if you were covered by Workers’ Compensation, you cannot sue your employer.  If you worked in multiple provinces, or are not sure at which employment you were exposed, please contact us to discuss the situation further.

If you were a member of the military and exposed to asbestos during your service, applying for Veterans Affairs benefits may be a good option. 

If you were exposed through a worker, (you were a bystander) you are not eligible for workers’ compensation  or VA benefits and you should contact Brown Law to have claims commenced on your behalf. Compensation is available to bystanders through the Asbestos Compensation Trusts.  Likewise, environmental bystanders only compensation option is through the Asbestos Trusts.

If you or a loved one has been diagnosed with mesothelioma, it is important to contact us now so that your options and potential claims can be investigated and filed within the time limits. 

Why can't I sue the company that made the product that made me sick?

The reason that the option to sue for damages caused to an injured party is not at the top of this list is primarily that the companies are protected by their bankruptcy.  There are some manufacturers who remain solvent but there are significant jurisdictional hurdles, as they are located in the USA, which must be met before court action can be taken.  A lawyer authorized to practice in the jurisdiction where the action needs to be tried would be required. Determining jurisdiction is also challenging given the multi-country and or multi-state ownership of the corporate defendants.

How is Mesothelioma diagnosed?

All mesothelioma is diagnosed by obtaining a sample of the fluid (cytology) or tissue (biopsy).  Mesothelioma can be suspected by your physician due to the mass type, symptoms and history of exposure to asbestos, but can only be confirmed by pathology.  X-ray results usually alert your doctor to the possibility of mesothelioma but are not diagnostic. The Pathology report(s) are often the only medical documentation required in order to advance a claim for compensation.  If you know you had exposure to asbestos it is important that your doctors be aware of this fact.  

It is crucial to have a pathological confirmation to make a mesothelioma claim.  If this cannot be done for any reason it is important to request a diagnostic autopsy.  If you or a loved one is believed to have mesothelioma but it has not been confirmed by tissue biopsy, contact us immediately for more information.  

Types of mesothelioma:

• Pleural Mesothelioma affects the pleura, the lining surrounding the lungs.  This is the most common type of mesothelioma believed to be caused by breathing in asbestos fibers.  Over 80% of mesothelioma victims are diagnosed with pleural mesothelioma.  

• Peritoneal Mesothelioma affects the peritoneum, the lining surrounding the abdomen.  It is believed that this mesothelioma is caused by swallowing asbestos fibers.

• Pericardial Mesothelioma affects the pericardium, the lining surrounding the heart.

• Testicular Mesothelioma affect the lining of the testes.  This is the most rare type of mesothelioma, being less than one percent. 

  • As part of the diagnostic process, mesothelioma can be further categorized based on cellular structure, namely Epithelial, Sarcomatoid, or Biphasic.  The pathology report generally specifies this finding.