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
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.
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