Civil Liability for Environmental Harm

• Author: Jamie Benidickson
• Pages: 101-121

101

CHAPTER 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 environmental in nature. Nuisance

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

rights have all been asserted — 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 damage.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 itself, consti-

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

obstacles in pursuing environmental claims. The challenges naturally

include specif‌ic doctrinal requirements, but encompass as well com-

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

responsibility for defendants’ costs where environmental claims ultim-

ately fail. Some of the constraints — notably in connection with class

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 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

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 health and safety, or discomfort or

inconvenience. A signif‌icant distinction has been drawn between nuis-

ance entailing physical damage and interference described as 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 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 defend-

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

interference 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 benef‌ici al to the community. The plaintiff satisf‌ie s the

substantive requirement of the tort if he can point to tangible dam-

age resulting from the defendant’s activity or a signif‌icant degree of

discomfor t or inconvenience.4

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, ir-

respective of his position in life, age, or state of health; it must 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.