Civil Liability for Environmental Harm

• Author: Jamie Benidickson
• Pages: 106-127

106

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 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 this nature. Justice Rinfret remarked, for example, that

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

Nevertheless, private litigants have faced signif‌icant obstacles in pur-

suing environmental claims. The challenges naturally include specif‌ic

doctrinal requirements, but encompass as well complex evidentiary

burdens, and the costs of litigation, possibly including responsibility

for defendants’ costs where environmental claims ultimately fail. Some

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

recently been addressed through 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 arm107

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 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 unreasonable in the sense that the plain-

tiff should not be required to suffer it, not that the defendant failed

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

ence is unreas onable, it is irrelevant that the defend ant 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.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,

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

an “inconvenience materially interfering with the ordinary comfort

physically of human existence, 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.