Civil Liability for Environmental Harm

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 88-104

88

CHAPTER 5

CIVIL LIABILITY FOR

ENVIRONMENTAL

HARM

1 Analogous claims arise under the Civil Code of Quebec (C.C.Q.). See, for exam-

ple, chapter III, section III, Articles 980, 981, and 982 concerning riparian rights

and water quality.

2Groat v. Edmonton (City), [1928] S.C.R. 522 at 532.

The civil courts have a long history of dealing with disputes that would

readily be acknowledged today as environmental in nature. Nuisance

claims, along with negligence, strict liability, trespass, and riparian

rights have all been asserted — often in combination — on behalf of

those seeking judicial protection from the effects of conduct that has

resulted, or that may result in the future, in some form of environ-

mental damage.1Courts have occasionally provided seemingly strong

encouragement for private claims of this nature, such as Justice

Rinfret’s remark that “[p]ollution is always unlawful and, in itself, con-

stitutes a nuisance.”2Nevertheless litigants have faced significant

obstacles, some of which have recently been addressed through statu-

tory reforms.

A. COMMON LAW CAUSES OF ACTION

1) Nuisance

The common law doctrine of nuisance affords some protection to per-

sons whose use and enjoyment of land is unreasonably interfered with

Civil Liability for Environmental Harm 89

3 J.P.S. McLaren, “Annotation” (1976) 1 C.C.L.T. 29 at 300.

4 Morden J. in Walker v. Pioneer Construction Co. (1975), 8 O.R. (2d) 35 at 48

(H.C.J.), quoting with approval from Clerk and Lindsell on Torts, 11th ed.

(London: Sweet & Maxwell, 1954) at 564.

by the actions of another, typically though not exclusively a neighbour.

The cause of the plaintiff’s complaint might be toxic fumes, chemicals

or smoke, unpleasant odours, or excessive light or noise, while the

interference experienced might involve actual physical damage to

property, personal injury or risk to health and safety, or discomfort or

inconvenience.

The courts’ central concern in nuisance is to determine whether

the activity complained of substantially and unreasonably interferes

with the plaintiff’s own reasonable use of the land:

[I]t is the impact of the defendant’s activity on the plaintiff’s interest

which is the focus of attention and not the nature of the defendant’s

conduct. The interference must be unreasonable in the sense that the

plaintiff should not be required to suffer it, not that the defendant

failed to take appropriate care. By the same token, if the level of inter-

ference is unreasonable, it is irrelevant that the defendant was taking

all possible care. Furthermore, it makes no difference that in his mind

he was making reasonable use of his land, or that his operation was

beneficial to the community. The plaintiff satisfies the substantive

requirement of the tort if he can point to tangible damage resulting

from the defendant’s activity or a significant degree of discomfort or

inconvenience.3

A judicial formulation of the requirements drawing upon a scholarly

synthesis indicates that actionable nuisance

must be such as to be real interference with the comfort or conven-

ience of living according to the standards of the average man. . . .

Moreover, the discomfort must be substantial and not merely with

reference to the plaintiff; it must be of such a degree that it would be

substantial to any person occupying the plaintiff’s premises, irrespec-

tive of his position in life, age, or state of health; it must be an “incon-

venience materially interfering with the ordinary comfort physically

of human existence, not merely according to elegant or dainty modes

and habits of living, but according to plain and sober and simple

notions among the [Canadian] people.”4

A few examples will help to illustrate the applicability of the doctrine

in an environmental context.