Environmental Causes Of Action Apr 2012

Environmental Causes of Action

NEERLS / SEERApril 2012, Vancouver

Dianne Saxe, PhD Law

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April, 2012 Dianne Saxe

Overview

n Negligence: Berendsen n Nuisance

n Carriern Smith v. Inco; MacQueenn Heyes

n Rylands / Trespass: Inco

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Berendsen v. Ontario

n 1960s - Ontario Ministry of Transportation put road waste on farm as “fill”

n 1981 - Berendsens bought farmn Cows wouldn’t drink, produced little milk

n 1989 - Berendsens discovered the waste

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n 1990 - Province paid for clean water delivery.n Cows’ health improved.n But water did not exceed ODWQO.n Odour?

n 1993 - Province stopped paying for water, cows stopped drinking

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n 1994 - Berendsens sued the Province in negligencen Depositing waste in ‘60sn Failing to remediate in ‘90s

n 2001: SCC on limitationsn Trial Judge awarded $1.7 millionn Tore a strip off Ministry of the Environment

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Berendsen - Appeal

n Province arguedn Causation not provenn A reasonable person in the 1960s would NOT

have foreseen the risk

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Law of Negligence

n 4 partsn Duty of Caren Standard of Caren Causation in Fact and in Lawn Harm

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Standard of Care

n Standard of care = what is expected of an ordinary, reasonable and prudent person in the same circumstances (Ryan v. Victoria (City))n What is “reasonable” influenced by:

n Perspective of the reasonable and prudent person (Blyth v. Birmingham Waterworks)

n Foreseeability of harmn Standards in the industry or common practicesn Statutory standards (R. v. Sask. Wheat Pool)

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Standard of Care

n What is foreseeable?n Mistaken delivery of fuel oil into a

decommissioned pipe (Bingley v. Morrison Fuels)n Radioactive war material (Heighington v. Ontario)n Overseas Tankship (U.K.) Ltd. v. Mort’s Dock -

The Wagon Mound (No. 1)n Assiniboine South School Division No. 3 v.

Greater Winnipeg Gas Co.

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Standard of Care

n Per CA: the harm was not foreseeable at the time the conduct occurred

n Even if OWRA prohibited depositing material that may impair water quality

n “Common sense” insufficient when experts disagree

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Foreseeable Harm?

n In the 1960sn Deposit of waste not regulatedn Guidelines not in effect until the late 1980sn Field of toxicology developed in 1970sn Soil geologists didn’t know chemicals could migrate

to welln Vets didn’t know chemicals in the asphalt could harm

cattlen No scientific studies showing harm

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Standard of Care

“Although this result may seem harsh in the light of what we now know about the environment, it is inappropriate to use our current knowledge to measure conduct occurring more than 30 years ago.”

nCourt of Appeal at para. 72

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Overview


n Carriern Heyesn Smith v. Inco; MacQueen


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Carrier c. Québec

n CA certified action by neighbours of highwayn Equivalent to nuisancen Deafening noise since 1985n Prov / Munic squabble about cost-share for noise

barrier = no actionn Ideal for collective remedy?

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Heyes v. South Coast B.C.

n 2011 BCCA 77 n Local business disrupted by the open cut

construction of a Vancouver transit linen Significant decline in business incomen Trial judge found construction was a nuisance n Awarded $600,000 in damages

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Heyes v. South Coast B.C.

n Appeal Court upheld finding of nuisance, but found that defendants had established the defence of statutory authorityn Affirmed traditional view of defence

n Limited applicability of St. Lawrence Cementn Common sense approach to assessing

alternatives includes wide range of factors, including cost

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Smith v. Inco - Facts

n Port Colborne Nickel refinery in operation for 66 years, closed in 1985n Lawful emissions of nickeln Carcinogenic?n Property values?

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The Studies

n Repeated studies, no health effectsn But, in 2000, MOE found soil nickel > 8000 ppm

close to plantn Health Unit warningn CBRA, cleanup ordern Crescendo of public concernn Real estate warnings

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Smith v. Inco - Trial

n Claimsn Trespass, nuisance, Rylands v. Fletcher

n Class actionn certified for reduced property value n health damage not certifiedn limitations issue

n Inco admitted source of nickel

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Smith v. Inco - Trespass

Lost at trialn Direct and physical intrusion n May involve placing or propelling an object, or

discharging some substance onto, the plaintiff’s land

n Maybe not intentional, but must be voluntaryn Actionable without proof of damage

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Smith v. Inco - Trespass

n “closer to... allowing stones from a ruinous chimney to fall onto neighbouring properties as opposed to ... throwing stones onto the properties.”

n Anmore Development Corp. v. Burnaby (City)n Waste fell, not placed, on neighbouring land -

no trespass

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Result?

n Liability in nuisance and Rylandsn $36M for lost increase in property valuen Found Port Colborne values rose more slowly than

Wellandn 2000 to 2008

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Trial - Nuisance

Unreasonable interference in use and enjoyment of private rightThrough physical damage to land

n Nickel physically addedn Causing public concern n Causing lost property valuen Therefore nickel a nuisance

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Trial - Rylands

Rylands v. Fletchern A non-natural use of landn Brings a dangerous agent onto defendant’s

property n Which “escapes” and causes harm.

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Trial - Rylands

n Refinery was “non-natural” because the nickel was brought from elsewhere

n Extra-hazardous activityn Ongoing emissions = “escape”n Strict liability

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Court of Appeal

n Complete win for Inco:n No loss in valuen No danger to healthn No nuisancen No Rylands

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Damages?

n “Loss” all due to one set of vacant lots in Port Colbornen Classed “agricultural” in 1999n Classed “residential” in 2008

n No trouble getting mortgages

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Health?

n Possible carcinogen in workplacen Not in soiln MOE generic criteria irrelevantn CBRA criteria some evidence that no danger to

healthn (Before the cleanup?)

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Nuisance?

n Presence ≠ physical damagen Actual risk requiredn Current activities only - intended to stop activities

that are causing nuisance n eg. Barrette v. St. Lawrence

n So: Exceedance of MOE standard ≠ physical damage

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Rylands?

n Escapes, not emissions - Must be accidentaln Refinery not “non-natural”

n pig in china shop?n Offsite source of nickel irrelevantn No strict liability for “extra-hazardous

activities”n Refinery not “extra-hazardous” anyway

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Foreseeability?

n Not decided but: n Compelling reasons to require foreseeabilityn Foreseeability of damage, rather than

foreseeability of escape

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Appeal to the SCC?

n Leave application pendingn But: is there a national interest question on

damages?n If not, why give leave?

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End of an Era?

n Pristine / Tridan era over?n Exceeding regulator standards: so what?n Historic contamination: what’s the tort?

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What About MacQueen?

n Sydney Tar Sandsn Certification based on trial decision in Incon “Battery” in place of personal injury claimn Under appeal

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Overview


n Carriern Heyesn Smith v. Inco; MacQueen


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April, 2012 Dianne Saxe 36

Questions?

SAXE LAW OFFICE248 Russell Hill Road

Toronto, Ontario M4V 2T2Tel: 416 - 962 - 5882Fax: 416 - 962 - 8817

Email: [email protected] popular blog: envirolaw.com

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