Class action wins over 'excessive annoyance'
KIRK MAKIN
Globe and Mail Update
November 20, 2008 at 10:51 AM EST
Polluters in Quebec can be successfully sued for ”excessive annoyances” – even if they have complied with government regulations governing emissions such as noise, odour or dust, the Supreme Court of Canada ruled today.
The Court sided in favour of allowing a class action targeting a St. Lawrence Cement Ltd. plant near Quebec City.
In a 6-0 ruling, the court said that there are two separate streams of potential liability in environmental class actions – one relating to actual wrong-doing, and the other relating to emissions that, despite being legal, exceed reasonable levels of tolerance in a community.
”Even though it appears to be absolute, the right of ownership has limits,” the court said, handing a major triumph to environmentalists and neighbourhoods with polluters in their midst.
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The case raised the important issue of whether a company can be liable for environmental nuisances even if it has complied with regulations, and is strictly not at fault.
The Montreal-based company argued that lower court rulings had disrupted industry by creating uncertainty around the question of whether companies can be found liable even if they are respecting the letter of the law of federal, provincial and municipal statutes governing the environment.
Industry in Quebec now finds itself open to attack from environmentalists on two separate legal fronts.
”Two regimes of civil liability in respect of neighbourhood disturbances should be recognized in Quebec law,” said Mr. Justice Louis LeBel and Madam Justice Marie Deschamps.
”One, under the ordinary rules of civil liability, is based on the wrongful conduct of the person who allegedly caused the disturbances,” they said. ”The second is a regime of no-fault liability based on the extent of the annoyances suffered by the victim for the purposes of art.”
The second branch will be ”based on the annoyances suffered by the victim being excessive, rather than on the conduct of the person who allegedly caused them,” the court said.
In order for a suit to succeed, it said, plaintiffs ”do not require evidence of wrongful conduct to establish the liability of an owner who has caused excessive neighbourhood annoyances.”
The case was the first environmental class action from Quebec to be heard by the Supreme Court. The court said that it represents many similar disputes across the country in an era when citizens no longer accept noxious pollutants as an acceptable irritant.
"They all have a great deal in common,” Judge LeBel and Judge Deschamps said. ”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.”
While the case was based on civil statutes particular to Quebec, it is expected to give legal guidance to environmental lawyers in other jurisdictions.
”A scheme of civil liability based on the existence of abnormal neighbourhood disturbances that does not require proven or presumed fault is also consistent with the approaches taken in Canadian common law and in French civil law,” Judge LeBel and Judge Deschamps specified Thursday.
”What is more, such a scheme is consistent with general policy considerations, such as the objective of environmental protection and the application of the polluter-pay principle.
It will also guide companies in their efforts to assess whether they may still be open to civil action based on the nuisance effects of their operations – for example, dust, noise or odour emissions – even if they have complied with environmental regulations.
The case pitted a group of citizens of Beauport, Que., against St. Lawrence Cement Ltd., which had operated its plant since special legislation allowed its creation in 1952.
Friction between the plant and the community began early. By 1955, the two were at war over noise, odour and airborne pollutants that the inhabitants alleged were damaging their property and enjoyment of life.
While the class action was launched in 1994 and the plant actually ceased operating in 1997, the litigation carried on.
Their suit alleged that the company caused annoyance to their way of life, particularly in the form of cement residues which were deposited through the air on their houses, land and cars. They also alleged that dust, odour and noise from the company's operation had caused their property values to drop between 1991 and 1997.
In another victory for environmentalists Thursday, the Supreme Court gave a broad interpretation to the question of which ”neighbours” qualify for compensation in a successful lawsuit of this nature.
”Although the plaintiff must prove a certain geographic proximity between the annoyance and its source, the word must be construed liberally,” the Court said.
A Quebec Superior Court initially allowed the class action, yet absolved the company of any wrongdoing. Nonetheless, it ordered the company to compensate people living near the plant.
The ruling was based on a section of the Quebec Civil Code, the ruling stated that neighbours cannot be expected to suffer annoyances that exceed a reasonable limit of tolerance.
The Superior Court judge also awarded damage awards that varied from zone to zone within the town, reasoning that citizens had suffered different degrees of harm.
The Supreme Court upheld this method Thursday, saying that it is reasonable to divide damages according to who suffered more or less from contaminants.
”Given the trial judge's discretion and the difficulty of assessing environmental problems and annoyances, the trial judge's use of average amounts in determining the quantum of damages was reasonable and appropriate in the circumstances. SLC has not shown that its liability increased as a result, and there is no indication that the amount awarded was based on a wholly erroneous estimate of the injury."
On appeal, the Quebec Court of Appeal overturned the portion of the lower court ruling that had found ‘no-fault liability' on the part of the company.
Using a more conventional interpretation, it nonetheless found that the company was liable for damages over failure to maintain its pollution-control equipment in ”optimal” working order and ordered it to pay damages.
The appeal court based its ruling on a different section of the province's civil code stating that by causing injury to another, a defendant may be liable for reparations.
St. Lawrence Cement based much of its appeal on its contention that it had consistent complied with regulatory standards.
An legal intervenor in the case – the Quebec Business Council on the Environment – argued that companies will be unfairly affected if they dutifully adhere to regulations yet can still be found civilly liable.
The other concurring judges were Madam Justice Beverley McLachlin, Mr. Justice Morris Fish, Madam Justice Rosalie Abella and Madam Justice Louise Charron.
