Civil Liability for Environmental Harm

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 100-119

100

CHA PTER 5

CIVIL LIABILITY FOR

ENVIRONMENTAL

HARM

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

readily be acknowledged today as envi ronmental 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 unlawf ul and, i n itself, consti-

tutes a nuisance.”2 Nevertheless private litigants have faced signi f‌icant

obstacles in pursuing environmental claims. The challenges naturally

include sp ecif‌ic doctrina l requirements, but encompass as well com-

plex evidentiary burdens, and the costs of litigation, possibly including

responsibility for defendants’ costs where envi ronmental claims ult im-

ately fail. Some of the constr aints — notably in connection w ith class

actions — have recently been addressed through statutory reform s.

1 Analogous cla ims arise under the Civil Code of Q uebec (C.C.Q.). See, for ex-

ample, chapter III, se ction III, Articles 980, 981, & 982 concerni ng riparian

rights and wat er quality.

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

Civil Liab ility for Environmental H arm 101

A. COMMON LAW CAUSES OF ACTION

1) Nuisance

The common law doctr ine of nuisance affords some protection to per-

sons whose use and enjoyment of land is unreasonably interfered w ith

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

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

icals or smoke, unplea sant odours, or excessive light or noise, while

the interference exper ienced might involve actu al physical damage to

property, personal injury or risk to health and s afety, 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 reas onable use of the land:

[I]t is t he impact of the defendant’s act ivity on the plaintiff ’s interest

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

conduct. The interference must be unrea sonable in the sense t hat

the plaint iff should not be re quired to suffer it, not that the defend-

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

interference is unreasonable, it is i rrelevant that the defendant w as

taking all possible care. Furt hermore, it makes no di fference that

in h is mind he was making rea sonable use of his land, or that his

operation was benef‌ici al to the community. The plaintif f satisf‌ies the

substantive requirement of the tort if he can p oint to t angible dam-

age resulti ng from the defend ant’s activit y or a signif‌ic ant degree of

discomfort or inconvenience.3

A judicial formulation of the requirements drawing upon a scholarly

synthesis i ndicates that actionable nuisance

must be such as to be real inte rference wit h the comfort or conven-

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

Moreover, the discomfort mu st be substantial and not merely with

reference to the plai ntif f; it must be of such a degree that it would

be s ubsta ntial to any person occupying the pla intiff’s prem ises, ir-

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

an “inconven ience mater ially interfering with the ordinary comfort

physically of human existence, not merely according to elegant or

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