Environmental Causes of Action NEERLS / SEER April 2012, Vancouver, PhD Law 1
Overview n Negligence: Berendsen n Nuisance n Carrier n Smith v. Inco; MacQueen n Heyes n Rylands / Trespass: Inco 2
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 3
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 4
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 5
Berendsen - Appeal n Province argued n Causation not proven n A reasonable person in the 1960s would NOT have foreseen the risk 6
Law of Negligence n 4 parts n Duty of Care n Standard of Care n Causation in Fact and in Law n Harm 7
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) 8
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. 9
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 10
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 11
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. n Court of Appeal at para. 72 12
Overview n Negligence: Berendsen n Nuisance n Carrier n Heyes n Smith v. Inco; MacQueen n Rylands / Trespass: Inco 13
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? 14
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 15
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 16
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? 17
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 18
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 19
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 20
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 21
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 22
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 23
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. 24
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 25
Court of Appeal n Complete win for Inco: n No loss in value n No danger to health n No nuisance n No Rylands 26
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 27
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?) 28
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 29
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 30
Foreseeability? n Not decided but: n Compelling reasons to require foreseeability n Foreseeability of damage, rather than foreseeability of escape 31
Appeal to the SCC? n Leave application pending n But: is there a national interest question on damages? n If not, why give leave? 32
End of an Era? n Pristine / Tridan era over? n Exceeding regulator standards: so what? n Historic contamination: what s the tort? 33
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 34
Overview n Negligence: Berendsen n Nuisance n Carrier n Heyes n Smith v. Inco; MacQueen n Rylands / Trespass: Inco 35
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