Civil Liability for Environmental Harm

• Author: Jamie Benidickson
• Pages: 106-127

106

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 r iparian

rights have all been a sserted — occasionally in combination — on behalf

of those seeking judicia l protection from the effects of conduct that has

resulted, or that may result, in some form of environmental damage.1

Intermittently, courts have provided strong encouragement for pri-

vate claims of thi s nature. Justice Rinfret rema rked, for example, that

“[p]ollution is always unlawful and, in itsel f, constitutes a nuisance.”2

Nevertheless, private litigant s have faced signif‌icant obstacles in pur-

suing environmental cl aims. The challenges naturally include specif‌ic

doctrinal requirements, but encompass as well complex evidentiar y

burdens, and the costs of litigation, pos sibly including responsibility

for defendants’ costs where environmental cl aims ultimately fail. Some

of the constraints — notably in connection with class actions — have

recently been addressed t hrough statutory reforms.

1 For an example of nuis ance, negligence, trespas s, and strict liability c laims

advanced in combin ation, see Huang v Fraser Hillary’s Ltd, 2015 ONSC 7645;

Canadian Tire Real Estat e v Huron Concrete Supply, 2014 ONSC 288. Analogous

claims ar ise under the Civil Code of Québec [CCQ]. See, for exa mple, c III, s III,

arts 980, 981, & 982 concern ing riparian right s and water quality. For discus -

sion of no-fault liabi lity under art 976 respecting env ironmental distur bances,

see St Lawrence Ceme nt Inc v Barrette, 2008 SCC 64.

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

Civil Liabi lity for Environmental H arm 107

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 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 m ight 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 between nuis-

ance entailing physical d amage and interference described a s amenity

nuisance.3

The courts’ central concern in nuis ance is to determine whether the

activity complained of substantially and unreasonably interferes with

the plaintiff ’s own reasonable use of the land:

[T]he interference must be unre asonable in the sens e that the plain-

tiff should not be requir ed to suffer it, not that the defenda nt failed

to take appropriate ca re. By the same token, if the level of inter fer-

ence is unreas onable, it is irrelevant that the defend ant was taking all

possible care. Fur thermore, it makes no di fference that in his m ind

he was makin g reasonable use of his l and, or that his operat ion was

benef‌icial to the com munity. The plaintiff satisf‌ie s the substantive

requirement of the tort if he c an point to tangible da mage resulting

from the defendant’s activ ity or a signif‌icant deg ree of discomfort or

inconvenience.4

A judicial formulation of the requirements d rawing 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,

irrespect ive of his position in life, age, or state of he alth; it must be

an “inconvenience mater ially interferi ng with the ordina ry comfort

physically of human e xistence, not merely according to elegant or

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 Canadian Cases on t he Law of Torts 29 at 300.