Thursday, December 11, 2008

Canadian Supreme Court ruling on nuisance and Class Action against polluters

The Supreme Court of Canada recently (November 2008) ruled on a Class-Action Case regarding St. Lawrence Cement in Quebec and dust emissions leading to "nuisance" even though their emissions were below guidelines. This opens up the possibility of communities affected by electrical pollution, following the same route based on nuisance rather than health as "health" is more difficult to get a ruling on.

The Gazette, Montreal, downloaded December 11, 2008.

Supreme Court upholds $15-million award against cement company

Neighbours of Quebec City-area plant launched class action over pollution, noise

Published: Friday, November 21

At least 2,000 people who suffered from the effects of dust and other pollution from a plant operated by St. Lawrence Cement Inc. near Quebec City are eligible for a payout that could total thousands of dollars to some individuals after a Supreme Court ruling yesterday.

Canada's top court upheld a $15-million environmental class action award against the company in a case that lawyers say has important implications for how firms operate and the recourse open to people who live nearby and are affected by pollution from business operations.

"This is an extremely important judgment and a big victory for citizens because it recognizes they have a right to claim damages in cases where the effects (of pollution) are excessive, without having to prove fault by the company," said Line Magnon, the Quebec City lawyer who won the case, along with lead lawyer Jacques Larochelle.

The case was filed on behalf of people living near a Beauport plant that St. Lawrence Cement closed in 1997.

Even though the company was found to have respected its obligations under existing environmental law, the Supreme Court upheld a Quebec Superior Court ruling that ordered the company to pay compensation to residents near the plant, under a provision of the Quebec Civil Code that states neighbours do not have to suffer annoyances that are beyond the limit of tolerance.

The residents launched the class action 15 years ago for "considerable annoyances," notably the deposit of cement residue on houses, land and cars, as well as problems with dust, odours and noise and loss of property value between 1991 and 1997.

Those living nearest the plant - either tenants or property owners - are eligible for the most amount of compensation, up to $2,500 per year per person for the period covered in the lawsuit, Magnon said.

St. Lawrence Cement, now majority owned by Holcim Group of Switzerland, could not be reached for comment.

In 2006, after St. Lawrence lost its case at the Quebec Court of Appeal, the company recorded a special expense of $13.6 million to cover the estimated cost of the award at that time.


Here is another report on the same case.

Saxe Envirolaw News
Environmental law updates (not advice) by a top Canadian lawyer

St. Lawrence Cement must pay millions for no-fault class-action damages

by Dianne Saxe

Dust they are, and unto dust they shall return, yet human beings have difficulty resigning themselves to living in dust. Sometimes, weary of brooms and buckets of water, they are not unwilling to turn to the courts to get rid of it. This case is proof of that.

The Supreme Court of Canada has upheld a Québec ruling awarding $15 million to neighbours of a cement plant, despite no fault by the company and a specific statute authorizing it to operate in that particular location. In St. Lawrence Cement Inc. v. Barrette, adult neighbours of a cement plant were awarded between $935 and $11,000 each for six years of odour, noise and dust, sometimes amounting to "storms of cement". While St. Lawrence Cement had used due diligence, spending huge sums on pollution control equipment capable of excellent performance, the equipment sometimes broke down. The decision was based on a special no-fault liability scheme under the Québec Civil Code, which applies where neighbourhood annoyances are "excessive". Thus, the case could be of limited relevance in the common law provinces. However, the Supreme Court went out of its way to draw a parallel between the Civil Code provisions and the common law of nuisance, and to laud the environmental benefits of a no-fault system.

[77] At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct …. [79] Thus, in both these legal systems, a scheme of no?fault liability in respect of neighbourhood disturbances is accepted in one form or another. Their schemes seem analogous to the one that can be inferred from art. 976 C.C.Q.

[80] Finally, it must be mentioned that the acceptance of no?fault liability furthers environmental protection objectives… No?fault liability also reinforces the application of the polluter?pay principle, which this Court discussed in Imperial Oil Ltd. v. Quebec (Minister of the Environment), , [2003] 2 S.C.R. 624, 2003 SCC 58.

After 40 years of operation, the plant closed shortly after the class-action was certified.