Dust they are, and unto dust they shall return, yet human beings have difficulty resigning themselves to living in dust. Sometimes, weary of brooms and buckets of water, they are not unwilling to turn to the courts to get rid of it. This case is proof of that.
The Supreme Court of Canada has upheld a Québec ruling awarding $15 million to neighbours of a cement plant, despite no fault by the company and a specific statute authorizing it to operate in that particular location. In St. Lawrence Cement Inc. v. Barrette, adult neighbours of a cement plant were awarded between $935 and $11,000 each for six years of odour, noise and dust, sometimes amounting to “storms of cement”. While St. Lawrence Cement had used due diligence, spending huge sums on pollution control equipment capable of excellent performance, the equipment sometimes broke down. The decision was based on a special no-fault liability scheme under the Québec Civil Code, which applies where neighbourhood annoyances are “excessive”. Thus, the case could be of limited relevance in the common law provinces. However, the Supreme Court went out of its way to draw a parallel between the Civil Code provisions and the common law of nuisance, and to laud the environmental benefits of a no-fault system.
[77] At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct …. [79] Thus, in both these legal systems, a scheme of no-fault liability in respect of neighbourhood disturbances is accepted in one form or another. Their schemes seem analogous to the one that can be inferred from art. 976 C.C.Q.
[80] Finally, it must be mentioned that the acceptance of no-fault liability furthers environmental protection objectives… No-fault liability also reinforces the application of the polluter pay principle, which this Court discussed in Imperial Oil Ltd. v. Quebec (Minister of the Environment), , [2003] 2 S.C.R. 624, 2003 SCC 58.
After 40 years of operation, the plant closed shortly after the class-action was certified.
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As co-counsel to the environmental group interveners (Friends of the Earth Canada and Centre quebecois du droit de l’environnement) in this matter, I was particularly pleased with the Supreme Court’s decision. St. Lawrence Cement represents an important legal victory for environmentalists and regular citizens in Quebec and across Canada. Broadly speaking, it will promote access to environmental justice in Quebec through environmental nuisance (troubles de voisinage) claims by reducing the plaintiff’s burden of proof (no requirement to demonstrate wrongdoing), by relaxing the standing rules, and by ensuring that groups may bring class actions in this context.
This decision represents a step forward in terms of the Supreme Court of Canada’s understanding of the intersection between public and private environmental regulation in Quebec. The legitimization of the art. 976 nuisance regime as a mechanism to protect the environment is an important development.
The Supreme Court of Canada completely reinstated the Superior Court’s decision in a judgment that stands for the right of private citizens to seek redress for damages resulting from intolerable environmental disturbances caused by their neighbours. In St. Lawrence Cement, the Supreme Court underlined the fact that ownership is not absolute, and that a no-fault liability regime does exist under art. 976.
The Court drew upon comparisons with the common law of nuisance and the French civil law approach to troubles de voisinage to support the finding that art. 976 is harm-oriented as opposed to conduct-oriented. The Court was careful not to conflate the art. 976 regime with the common law tort of nuisance, but it clearly indicated their analogous relationship, and highlighted that “in both these legal systems, a scheme of no fault liability in respect of neighbourhood disturbances is accepted in one form or another”. Thus, St. Lawrence Cement appears to contribute to a harmonization process as between Canada’s two legal traditions, a trend that has been observed in other areas of private law. Certainly, future contextual analyses of what constitutes an “abnormal inconvenience” in Quebec may be compared with an “unreasonable interference with the use and enjoyment of land” across Canada.
The Court’s approach to interpreting the private law contained in the Quebec Civil Code is of significance to future public interest environmental litigation. In determining whether or not art. 976 was a no-fault liability regime, the Court examined prior jurisprudence, academic commentaries, legislative intent and, unusually, general policy considerations related to environmental protection. It should be noted that Civil Code interpretation does not normally engage an explicit analysis of broader policy considerations – tending towards assessments of internal logic and structural coherence as articulated in doctrine and caselaw. Given that the interveners were the only ones to discuss public policy relevance, it is fair to say that their impact on the decision was appreciable.
In terms of these general policy considerations, the Court noted that “the acceptance of no fault liability furthers environmental protection objectives” and “reinforces the application of the polluter pay principle”. The partial justification of a no-fault nuisance regime on the basis of the public’s interest in environmental protection is noteworthy. In doing so, the Court recognized explicitly the contribution that civil liability proceedings pursuant to tort (extra-contractual obligation) law may provide to this broader societal objective. The Court implicitly rejected the Court of Appeal’s restrictive vision of an environmental protection regime that is limited to statutory and regulatory norms promulgated and enforced by the state. Pelletier J. of the Court of Appeal had asserted that the Environmental Quality Act, and not art. 976 or other Civil Code provisions, ought to be viewed as the primary vehicle to achieve environmental protection, and that the Civil Code should not be interpreted so as to establish an overlapping regulatory regime. This misguided approach to the interaction of public and private law in the service of environmental protection was one of the primary motivations underlying the intervention, and so it is especially satisfying to have successfully challenged this perspective. Tort law is better understood as a necessarily complementary collection of “reactive” legal regimes that, together with environmental statutes and regulations, forms part of the overall environmental protection architecture.
It is also worth highlighting the fact that St. Lawrence Cement appears to be the first appellate decision in Canada to invoke the polluter-pay principle as an interpretive device for the private law. In Imperial Oil, this same principle was invoked to interpret an environmental statute in a judicial review context. Thus, this decision builds on Canfor (para. 7-8), which drew more generally upon the principle of environmental protection to justify the development of the common law related to environmental damages. It would be worthwhile to consider what aspects of Canadian tort law might be developed through strategic litigation which invokes the polluter-pay principle and other established environmental principles. Certainly, the precautionary principle and its application to rules of causation and foreseeability are obvious targets.
The Court also recognized a broad definition of the term “neighbour” in the art. 976 context, thereby facilitating access to justice in neighbourhood annoyance claims. The Court of Appeal had maintained that “neighbor” should include only those persons who held a right of “ownership” (a real right) in immovable property affected by the abnormal annoyances. This definition specifically excluded the possibility of standing to any tenant or other possessor (e.g. a family member living in a home owned by another) who may also have suffered damages from the same events. However, St. Lawrence Cement confirms that tenants and occupants may bring art. 976 claims. This is another example of harmonization between the Quebec civil law “troubles de voisinage” regime and the tort of nuisance in common law Canada.
The Court also stated that while a plaintiff must prove a certain geographic proximity between the annoyance and its source, the notion of neighbour must be “construed liberally” and need not require adjacency.
In terms of an impact on the common law, it is reasonable to presume that this liberal approach to defining a “neighbour” will help inform future analyses of “proximity” and “neighbourhood” in the context of nuisance claims. It is particularly relevant that a more relaxed approach to determining “neighbour” has been encouraged by the Court in an environmental nuisance context.
These and other comments will be elaborated upon in a forthcoming journal article.
Great blog, Diane.
Regards,
William Amos
Staff Lawyer/Conseiller juridique
uOttawa-Ecojustice Environmental Law Clinic
University of Ottawa, Leblanc Residence
107-35 Copernicus St., Rm 110, Ottawa ON K1N 6N5
Tel: (613) 562 5800 ext. 3378
Fax: (613) 562 5319
wamos@ecojustice.ca