Civil Liability for Environmental Harm

• Author: Jamie Benidickson
• Pages: 101-121

101

CHA PTER 5

CIVIL LIABILITY FOR

ENVIRONMENTAL

HARM

The civil courts have a long histor y of dealing with d isputes that would

readily be acknowledged today as env ironmental in nature. Nuisa nce

claims, along with negl igence, strict liability, trespass, and riparian

rights have all been a sserted — occasionally in combination — on be-

half of those seeking judicial protection from the effects of conduct

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

vironmental d amage.1 Intermittently, courts have provided strong en-

couragement for private claims of this nature. Justice Rinfret remarked,

for example, that “[p]ollution is always unlawful and, in it self, consti-

tutes a nuisance.”2 Nevertheless, private litigants have faced sig nif‌icant

obstacles in pursuing env ironmental claims. The cha llenges naturally

include specif‌ic doctrinal requirements, but encompass as well com-

plex evidentiary burden s, and the costs of litigation, possibly including

responsibility for defendants’ cost s where environmental claims ultim-

ately fail. Some of the constraint s — notably in connection with cl ass

actions — have recently been addressed through statutory reforms.

1 Analogous cla ims arise under the Civil Code of Q uébec (CCQ). See, for example,

c III, s III, arts 98 0, 981, & 982 concerning r iparian rights and w ater quality.

For discuss ion of no-fault liability under ar t 976 r especting environ mental dis-

turbances, s ee St Lawrence Cement Inc v Barrette, 20 08 SCC 64.

2 Groat v Edmonton (City), [1928] SCR 522 at 532.

ENVIRONMENTAL L AW

102

A. COMMON LAW CAUSES OF AC TION

1) Nuisance

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

sons whose use and enjoyment of land is un reasonably interfered with

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

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

icals 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 hea lth and safety, or discomfort or

inconvenience. A signif‌icant distinction has been drawn bet ween nuis-

ance entailing physical d amage and interference described a s amenity

nuisance.3

The courts’ central concern in nuisa nce is to determine whether the

activity complained of substantially and unreasonably interferes with

the plaintiff ’s own reasonable use of the land:

[I]t i s the impact of the defendant’s activ ity on the plaintif f’s interest

which is the focus of attent ion and not the nature of the defendant’s

conduct. The interference must be unre asonable in the sense t hat

the plaintif f should not be required to suffer it, not th at the defend-

ant failed to ta ke appropriate care. By the same token, i f the level of

interference is unre asonable, it is irreleva nt that the defendant was

taking al l possible care. Furt hermore, it makes no differe nce that

in his mind he wa s making reas onable use of his land, or th at his

operation was benef‌ici al to the community. The plaintiff satisf‌ie s the

substantive requi rement of the tort if he can point to t angible dam-

age resulting from t he defendant’s activity or a sign if‌icant degree of

discomfor t or inconvenience.4

A judicial formulation of the requirements drawing upon a scholarly

synthe sis indic ates that act ionable nuisa nce

must be such as to be rea l interference with the com fort or conven-

ience of living according t o the standards of t he average man. . . .

Moreover, the discomfort must be subst antial and not merely wit h

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

be substanti al to any person occupyi ng the plaintiff ’s premises, ir-

respective of hi s position in life, age, or state of health; it mu st be

3 Smith v Inco Ltd, 2011 ONCA 628 at paras 39– 67 (Smith v Inco), leave to appeal

to SCC refused, [2011] SCCA No. 539.

4 JPS McLaren, “Annotat ion” (1976) 1 CCLT 29 at 300.