Environmental Causes Of Action Apr 2012
- 1. Environmental Causes of Action NEERLS / SEER April 2012, Vancouver Dianne Saxe, PhD Law 1
- 2. Overview n Negligence: Berendsen n Nuisance n Carrier n Smith v. Inco; MacQueen n Heyes n Rylands / Trespass: Inco April, 2012 Dianne Saxe 2
- 3. Berendsen v. Ontario n 1960s - Ontario Ministry of Transportation put road waste on farm as “fill” n 1981 - Berendsens bought farm n Cows wouldn’t drink, produced little milk n 1989 - Berendsens discovered the waste April, 2012 Dianne Saxe 3
- 4. Berendsen v. Ontario n 1990 - Province paid for clean water delivery. n Cows’ health improved. n But water did not exceed ODWQO. n Odour? n 1993 - Province stopped paying for water, cows stopped drinking April, 2012 Dianne Saxe 4
- 5. Berendsen v. Ontario n 1994 - Berendsens sued the Province in negligence n Depositing waste in ‘60s n Failing to remediate in ‘90s n 2001: SCC on limitations n Trial Judge awarded $1.7 million n Tore a strip off Ministry of the Environment April, 2012 Dianne Saxe 5
- 6. Berendsen - Appeal n Province argued n Causation not proven n A reasonable person in the 1960s would NOT have foreseen the risk April, 2012 Dianne Saxe 6
- 7. Law of Negligence n 4 parts n Duty of Care n Standard of Care n Causation in Fact and in Law n Harm April, 2012 Dianne Saxe 7
- 8. Standard of Care n Standard of care = what is expected of an ordinary, reasonable and prudent person in the same circumstances (Ryan v. Victoria (City)) n What is “reasonable” influenced by: n Perspective of the reasonable and prudent person (Blyth v. Birmingham Waterworks) n Foreseeability of harm n Standards in the industry or common practices n Statutory standards (R. v. Sask. Wheat Pool) April, 2012 Dianne Saxe 8
- 9. Standard of Care n What is foreseeable? n Mistaken delivery of fuel oil into a decommissioned pipe (Bingley v. Morrison Fuels) n Radioactive war material (Heighington v. Ontario) n Overseas Tankship (U.K.) Ltd. v. Mort’s Dock - The Wagon Mound (No. 1) n Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co. April, 2012 Dianne Saxe 9
- 10. Standard of Care n Per CA: the harm was not foreseeable at the time the conduct occurred n Even if OWRA prohibited depositing material that may impair water quality n “Common sense” insufficient when experts disagree April, 2012 Dianne Saxe 10
- 11. Foreseeable Harm? n In the 1960s n Deposit of waste not regulated n Guidelines not in effect until the late 1980s n Field of toxicology developed in 1970s n Soil geologists didn’t know chemicals could migrate to well n Vets didn’t know chemicals in the asphalt could harm cattle n No scientific studies showing harm April, 2012 Dianne Saxe 11
- 12. Standard of Care “Although this result may seem harsh in the light of what we now know about the environment, it is inappropriate to use our current knowledge to measure conduct occurring more than 30 years ago.” nCourt of Appeal at para. 72 April, 2012 Dianne Saxe 12
- 13. Overview n Negligence: Berendsen n Nuisance n Carrier n Heyes n Smith v. Inco; MacQueen n Rylands / Trespass: Inco April, 2012 Dianne Saxe 13
- 14. Carrier c. Québec n CA certified action by neighbours of highway n Equivalent to nuisance n Deafening noise since 1985 n Prov / Munic squabble about cost-share for noise barrier = no action n Ideal for collective remedy? April, 2012 Dianne Saxe 14
- 15. Heyes v. South Coast B.C. n 2011 BCCA 77 n Local business disrupted by the open cut construction of a Vancouver transit line n Significant decline in business income n Trial judge found construction was a nuisance n Awarded $600,000 in damages April, 2012 Dianne Saxe 15
- 16. Heyes v. South Coast B.C. n Appeal Court upheld finding of nuisance, but found that defendants had established the defence of statutory authority n Affirmed traditional view of defence n Limited applicability of St. Lawrence Cement n Common sense approach to assessing alternatives includes wide range of factors, including cost April, 2012 Dianne Saxe 16
- 17. Smith v. Inco - Facts n Port Colborne Nickel refinery in operation for 66 years, closed in 1985 n Lawful emissions of nickel n Carcinogenic? n Property values? April, 2012 Dianne Saxe 17
- 18. The Studies n Repeated studies, no health effects n But, in 2000, MOE found soil nickel > 8000 ppm close to plant n Health Unit warning n CBRA, cleanup order n Crescendo of public concern n Real estate warnings April, 2012 Dianne Saxe 18
- 19. Smith v. Inco - Trial n Claims n Trespass, nuisance, Rylands v. Fletcher n Class action n certified for reduced property value n health damage not certified n limitations issue n Inco admitted source of nickel April, 2012 Dianne Saxe 19
- 20. Smith v. Inco - Trespass Lost at trial n Direct and physical intrusion n May involve placing or propelling an object, or discharging some substance onto, the plaintiff’s land n Maybe not intentional, but must be voluntary n Actionable without proof of damage April, 2012 Dianne Saxe 20
- 21. Smith v. Inco - Trespass n “closer to... allowing stones from a ruinous chimney to fall onto neighbouring properties as opposed to ... throwing stones onto the properties.” n Anmore Development Corp. v. Burnaby (City) n Waste fell, not placed, on neighbouring land - no trespass April, 2012 Dianne Saxe 21
- 22. Result? n Liability in nuisance and Rylands n $36M for lost increase in property value n Found Port Colborne values rose more slowly than Welland n 2000 to 2008 April, 2012 Dianne Saxe 22
- 23. Trial - Nuisance Unreasonable interference in use and enjoyment of private right Through physical damage to land n Nickel physically added n Causing public concern n Causing lost property value n Therefore nickel a nuisance April, 2012 Dianne Saxe 23
- 24. Trial - Rylands Rylands v. Fletcher n A non-natural use of land n Brings a dangerous agent onto defendant’s property n Which “escapes” and causes harm. April, 2012 Dianne Saxe 24
- 25. Trial - Rylands n Refinery was “non-natural” because the nickel was brought from elsewhere n Extra-hazardous activity n Ongoing emissions = “escape” n Strict liability April, 2012 Dianne Saxe 25
- 26. Court of Appeal n Complete win for Inco: n No loss in value n No danger to health n No nuisance n No Rylands April, 2012 Dianne Saxe 26
- 27. Damages? n “Loss” all due to one set of vacant lots in Port Colborne n Classed “agricultural” in 1999 n Classed “residential” in 2008 n No trouble getting mortgages April, 2012 Dianne Saxe 27
- 28. Health? n Possible carcinogen in workplace n Not in soil n MOE generic criteria irrelevant n CBRA criteria some evidence that no danger to health n (Before the cleanup?) April, 2012 Dianne Saxe 28
- 29. Nuisance? n Presence ≠ physical damage n Actual risk required n Current activities only - intended to stop activities that are causing nuisance n eg. Barrette v. St. Lawrence n So: Exceedance of MOE standard ≠ physical damage April, 2012 Dianne Saxe 29
- 30. Rylands? n Escapes, not emissions - Must be accidental n Refinery not “non-natural” n pig in china shop? n Offsite source of nickel irrelevant n No strict liability for “extra-hazardous activities” n Refinery not “extra-hazardous” anyway April, 2012 Dianne Saxe 30
- 31. Foreseeability? n Not decided but: n Compelling reasons to require foreseeability n Foreseeability of damage, rather than foreseeability of escape April, 2012 Dianne Saxe 31
- 32. Appeal to the SCC? n Leave application pending n But: is there a national interest question on damages? n If not, why give leave? April, 2012 Dianne Saxe 32
- 33. End of an Era? n Pristine / Tridan era over? n Exceeding regulator standards: so what? n Historic contamination: what’s the tort? April, 2012 Dianne Saxe 33
- 34. What About MacQueen? n Sydney Tar Sands n Certification based on trial decision in Inco n “Battery” in place of personal injury claim n Under appeal April, 2012 Dianne Saxe 34
- 35. Overview n Negligence: Berendsen n Nuisance n Carrier n Heyes n Smith v. Inco; MacQueen n Rylands / Trespass: Inco April, 2012 Dianne Saxe 35
- 36. Questions? SAXE LAW OFFICE 248 Russell Hill Road Toronto, Ontario M4V 2T2 Tel: 416 - 962 - 5882 Fax: 416 - 962 - 8817 Email: admin@envirolaw.com Our popular blog: envirolaw.com April, 2012 Dianne Saxe 36