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Polluters liable for “excessive annoyances”

“So long as farmers engage in normal farming practices, the normal common law of nuisance won’t apply.”

– William Amos, Ecojustice

A landmark Supreme Court of Canada ruling that companies can be sued for polluting despite operating within government regulations could have ramifications for agriculture.

Supreme Court judges ruled November 20 that a Quebec cement plant must pay damages to nearby residents who endured dust and odour from it for years.

The St. Lawrence Cement Inc. plant, located near Quebec City, argued it followed all proper procedures, even spending millions of dollars to deal with complaints about dust, odours and noise.

However, in a 6-0 ruling, the court said liability must be “based on the annoyances suffered by the victim being excessive rather than on the conduct of the person who allegedly caused them.”

St. Lawrence Cement is owned by Holcim Ltd., one of the world’s largest multinational cement manufacturers. It must now pay upwards of $15 million in damages, even though the plant in question closed in 1997.

Earlier in 2003, the Supreme Court upheld the “polluter pay” principle.

Last week’s court ruling applies only in Quebec, which has a separate civil code from the rest of Canada.

However, a lawyer representing the plaintiffs called it a significant victory for the environmental movement.

Implications

The ruling will make environmental nuisance complaints easier because people affected only have to prove that the annoyance was abnormal. They do not have to show that the company acted improperly, said William Amos, a staff lawyer and part-time professor at the University of Ottawa-Ecojustice Environmental Law Clinic.

The case raises the question of whether it strengthens the hand of residents complaining about alleged nuisances from farms, such as odours from hog barns.

Most provinces, including Manitoba, have so-called right-to-farm legislation which protects producers from nuisance suits if they use normal farming practices and do not violate environmental, health or other laws.

The Manitoba Farm Practices Protection Act says such a farmer “is not liable in nuisance to any person for any odour, noise, dust, smoke or other disturbance resulting from the agricultural operation and shall not be prevented by injunction or other order of a court from carrying on the agricultural operation because it causes or creates an odour, noise, dust, smoke or other disturbance.”

The Farm Practices Protection Board, established under the act, hears nuisance complaints brought against farmers. It can dismiss a complaint if it concerns a normal farm practice. If the practice is found not to be normal, the board can order it to cease or be modified.

Amos said he couldn’t comment specifically on the Manitoba law. But he suggested it may give farmers a “get out of jail free card” because it provides specific exemptions to nuisance complaints.

Specific exemptions

“Notwithstanding what the common law may say with respect to nuisance claims, including environmental nuisance claims, so long as farmers engage in normal farming practices, the normal common law of nuisance won’t apply,”

he said in an interview from Ottawa.

But it depends on both the nature of the exemption and the agriculture practised, Amos added.

“There’s a big difference between the family farmer and the industrial farmer,” he said. “Normal farming practice in 1950 sure ain’t what it is now.”

The Manitoba law was passed in 1992 and proclaimed in 1994. A provincial spokesperson said the Farm Practices Protection Board has heard 80 cases since then.

Of those, 62 were about odour, six involved smoke and another six concerned spraying. There were two cases about dust, one about noise and three other complaints.

Eight cases were dismissed and four were refused because they were not covered by the act. The rest were either mediated, the offending practice was modified or the case was withdrawn.

There were four cases brought in 2007 and none so far in 2008.

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