It didn’t receive much attention in the United States, but a few weeks ago Canada’s Supreme Court issued a decision that is tremendously significant for environmental protection. I’m very grateful that Professor Marcia Valiante of the University of Windsor Faculty of Law accepted my request to write the following brief summary of the decision and its implications. Prof. Valiante is a leading expert on Canadian environmental law with a special focus on water and the Great Lakes. She is a member of the International Joint Commission’s Great Lakes Science Advisory Board and active in environmental protection issues regarding the Detroit River. I had the pleasure of co-teaching a course with Prof. Valiante on U.S.-Canadian transboundary environmental law a few years ago and continue to rely on her expertise on issues north of the border. From Prof. Valiante:
On November 20, 2008, the Supreme Court of Canada issued its long-awaited decision in St. Lawrence Cement Inc. v. Barrette, a class action brought by neighbours of a cement plant in Beauport, Quebec for damages caused by dust, odour and noise emanating from the plant.
The central issue in the case was the nature of liability for “neighbourhood annoyances” under the Civil Code of Quebec, which governs all aspects of civil law in the province. This was an unsettled area of the law, particularly following adoption of the new Civil Code in 1994. The Superior Court had found that the evidence did not support a finding of fault, in large part because the company complied with all regulatory requirements, but held that under Article 976 of the Civil Code intolerable levels of annoyance give rise to liability without the need to prove fault. Because the annoyances were beyond the tolerable level, the company was required to pay damages. The Court of Appeal rejected the principle of no-fault liability but found the company was at fault because it had failed to ensure its equipment always functioned optimally. The Court of Appeal interpreted Article 976 to give rise to a “real” action – the impact of which would be that only owners could bring a claim and that claims could not be brought as class actions, which are limited to personal actions. It was to argue against this outcome that Friends of the Earth and the Quebec Environmental Law Centre intervened in the Supreme Court.
A unanimous Supreme Court agreed with the Superior Court, concluding that the wording of Article 976, its statutory context, the legislative history and scholarly commentary all supported no-fault liability for neighbourhood annoyances. The Supreme Court also took a broad view of the meaning of “neighbour” and accepted the Superior Court’s calculation of class damages on an average basis across a number of zones around the plant. In reaching its decision, the Court was influenced by the fact that recognition of no-fault liability would bring Quebec law into line with nuisance law in the common law provinces and reinforce application of the polluter pay principle.
It was feared that a decision upholding the Court of Appeal would have put class actions for nuisance claims in jeopardy. However, this decision ensures that nuisance actions in Quebec will be easier to prove and can continue to be brought as class actions, fostering access to justice. Facilities that meet all regulatory standards will still have to ensure that they do not cause annoyances to their neighbours beyond the “normal” level of tolerance.
