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How have recent court decisions limited civil claims for environmental damages? NEERLS/ SEER Law conference, April 2012, Vancouver
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Environmental Causes of Action
NEERLS / SEERApril 2012, Vancouver
Dianne Saxe, PhD Law
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April, 2012 Dianne Saxe
Overview
n Negligence: Berendsen n Nuisance
n Carriern Smith v. Inco; MacQueenn Heyes
n Rylands / Trespass: Inco
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April, 2012 Dianne Saxe
Berendsen v. Ontario
n 1960s - Ontario Ministry of Transportation put road waste on farm as “fill”
n 1981 - Berendsens bought farmn Cows wouldn’t drink, produced little milk
n 1989 - Berendsens discovered the waste
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April, 2012 Dianne Saxe
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
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April, 2012 Dianne Saxe
Berendsen v. Ontario
n 1994 - Berendsens sued the Province in negligencen Depositing waste in ‘60sn Failing to remediate in ‘90s
n 2001: SCC on limitationsn Trial Judge awarded $1.7 millionn Tore a strip off Ministry of the Environment
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April, 2012 Dianne Saxe
Berendsen - Appeal
n Province arguedn Causation not provenn A reasonable person in the 1960s would NOT
have foreseen the risk
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April, 2012 Dianne Saxe
Law of Negligence
n 4 partsn Duty of Caren Standard of Caren Causation in Fact and in Lawn Harm
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April, 2012 Dianne Saxe
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 harmn Standards in the industry or common practicesn Statutory standards (R. v. Sask. Wheat Pool)
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April, 2012 Dianne Saxe
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.
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April, 2012 Dianne Saxe
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
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April, 2012 Dianne Saxe
Foreseeable Harm?
n In the 1960sn Deposit of waste not regulatedn Guidelines not in effect until the late 1980sn Field of toxicology developed in 1970sn Soil geologists didn’t know chemicals could migrate
to welln Vets didn’t know chemicals in the asphalt could harm
cattlen No scientific studies showing harm
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April, 2012 Dianne Saxe
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
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April, 2012 Dianne Saxe
Overview
n Negligence: Berendsen n Nuisance
n Carriern Heyesn Smith v. Inco; MacQueen
n Rylands / Trespass: Inco
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April, 2012 Dianne Saxe
Carrier c. Québec
n CA certified action by neighbours of highwayn Equivalent to nuisancen Deafening noise since 1985n Prov / Munic squabble about cost-share for noise
barrier = no actionn Ideal for collective remedy?
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April, 2012 Dianne Saxe
Heyes v. South Coast B.C.
n 2011 BCCA 77 n Local business disrupted by the open cut
construction of a Vancouver transit linen Significant decline in business incomen Trial judge found construction was a nuisance n Awarded $600,000 in damages
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April, 2012 Dianne Saxe
Heyes v. South Coast B.C.
n Appeal Court upheld finding of nuisance, but found that defendants had established the defence of statutory authorityn Affirmed traditional view of defence
n Limited applicability of St. Lawrence Cementn Common sense approach to assessing
alternatives includes wide range of factors, including cost
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April, 2012 Dianne Saxe
Smith v. Inco - Facts
n Port Colborne Nickel refinery in operation for 66 years, closed in 1985n Lawful emissions of nickeln Carcinogenic?n Property values?
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April, 2012 Dianne Saxe
The Studies
n Repeated studies, no health effectsn But, in 2000, MOE found soil nickel > 8000 ppm
close to plantn Health Unit warningn CBRA, cleanup ordern Crescendo of public concernn Real estate warnings
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April, 2012 Dianne Saxe
Smith v. Inco - Trial
n Claimsn Trespass, nuisance, Rylands v. Fletcher
n Class actionn certified for reduced property value n health damage not certifiedn limitations issue
n Inco admitted source of nickel
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April, 2012 Dianne Saxe
Smith v. Inco - Trespass
Lost at trialn 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 voluntaryn Actionable without proof of damage
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April, 2012 Dianne Saxe
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
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April, 2012 Dianne Saxe
Result?
n Liability in nuisance and Rylandsn $36M for lost increase in property valuen Found Port Colborne values rose more slowly than
Wellandn 2000 to 2008
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April, 2012 Dianne Saxe
Trial - Nuisance
Unreasonable interference in use and enjoyment of private rightThrough physical damage to land
n Nickel physically addedn Causing public concern n Causing lost property valuen Therefore nickel a nuisance
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April, 2012 Dianne Saxe
Trial - Rylands
Rylands v. Fletchern A non-natural use of landn Brings a dangerous agent onto defendant’s
property n Which “escapes” and causes harm.
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April, 2012 Dianne Saxe
Trial - Rylands
n Refinery was “non-natural” because the nickel was brought from elsewhere
n Extra-hazardous activityn Ongoing emissions = “escape”n Strict liability
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April, 2012 Dianne Saxe
Court of Appeal
n Complete win for Inco:n No loss in valuen No danger to healthn No nuisancen No Rylands
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April, 2012 Dianne Saxe
Damages?
n “Loss” all due to one set of vacant lots in Port Colbornen Classed “agricultural” in 1999n Classed “residential” in 2008
n No trouble getting mortgages
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April, 2012 Dianne Saxe
Health?
n Possible carcinogen in workplacen Not in soiln MOE generic criteria irrelevantn CBRA criteria some evidence that no danger to
healthn (Before the cleanup?)
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April, 2012 Dianne Saxe
Nuisance?
n Presence ≠ physical damagen Actual risk requiredn 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
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April, 2012 Dianne Saxe
Rylands?
n Escapes, not emissions - Must be accidentaln Refinery not “non-natural”
n pig in china shop?n Offsite source of nickel irrelevantn No strict liability for “extra-hazardous
activities”n Refinery not “extra-hazardous” anyway
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April, 2012 Dianne Saxe
Foreseeability?
n Not decided but: n Compelling reasons to require foreseeabilityn Foreseeability of damage, rather than
foreseeability of escape
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April, 2012 Dianne Saxe
Appeal to the SCC?
n Leave application pendingn But: is there a national interest question on
damages?n If not, why give leave?
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April, 2012 Dianne Saxe
End of an Era?
n Pristine / Tridan era over?n Exceeding regulator standards: so what?n Historic contamination: what’s the tort?
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April, 2012 Dianne Saxe
What About MacQueen?
n Sydney Tar Sandsn Certification based on trial decision in Incon “Battery” in place of personal injury claimn Under appeal
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April, 2012 Dianne Saxe
Overview
n Negligence: Berendsen n Nuisance
n Carriern Heyesn Smith v. Inco; MacQueen
n Rylands / Trespass: Inco
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April, 2012 Dianne Saxe 36
Questions?
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