Recognizing No-Fault Civil Liability in Respect of Neighbourhood Disturbances in Québec Civil Law
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.
So begins the Supreme Court of Canada’s (“SCC”) decision in St. Lawrence Cement Inc v Barrette, 2008 SCC 64, a case from Québec dealing with a class action by the residents of a community against a cement plant in their midst.
In the early 1950s, St. Lawrence Cement Inc. (SLC) built a large cement plant in Villeneuve (later amalgamated with the city of Beauport and then with the city of Québec). Soon after the plant began operating in 1955, problems arose with the residents of houses on land adjacent to SLC’s property, and environmental incidents began occuring as early as 1956. On several occasions in the 1980s, the Ministère de l’Environnement responded to complaints about problems with dust, odours and noise and, between 1991 and 1996, received many complaints about environmental incidents. During the same period, SLC invested several million dollars for environmental protection purposes, including almost $8 million on the installation of new dust collectors for the kilns, between 1991 and 1995. SLC stopped operating the plant in 1997.
On June 4, 1993, Huguette Barrette and Claude Cochrane filed a motion in the Quebec Superior Court for authorization to institute a class action, naming themselves as the representatives litigants of a class consisting of Beauport residents living in areas near the plant. The motion was granted on March 31, 1994, and the action filed on August 1, 1994.
Recognizing SLC’s efforts to comply with the relevant legislative standards, the trial judge found that SLC had committed no fault (see 2003 RJC 1883). However, she held that article 976 of the Civil Code of Québec, RLRQ, c C-1991 [the Code], established a scheme of no-fault liability such that SLC could be held civilly liable on the basis that the cement plant’s emissions of dust, odours and noise had caused annoyances to the representatives and the members of the class that were abnormal and excessive.
SLC appealed to the Québec Court of Appeal (“QCCA”) who rejected the trial judge’s theory of no-fault liability and instead found SLC liable based on proven fault (see 2006 QCCA 1437). According to the Court of Appeal, SLC had an obligation to ensure that its equipment functioned optimally; as soon as a breakdown occurred, the plant must cease operating until the equipment properly repaired. SLC had failed to do so on numerous occasions during the period covered by the claim. The QCCA therefore found that SLC had committed a fault and was, as a result, civilly liable. Based on this analysis of civil liability, the trial judge’s damages awards were reduced to exclude annoyances that had not resulting from SLC’s fault.
SLC appealed with regard to the Court of Appeal’s conclusion that it was liable on the basis of fault. The representatives cross-appealed, seeking recognition of a no-fault liability scheme in respect of neighbourhood annoyances that are excessive and to restore the trial judge’s conclusions on the quantum of damages.
While SLC raised several defences to avoid or limit its civil liablility for damages, the main issue before the Court was whether there is, under article 976 of the Code, a liability scheme based on the extent of the annoyances suffered by the victim rather than on the conduct of the party who allegedly caused them. A no-fault liability regime would expand the scope of the existing rules regarding civil liability in Québec.
A unanimous Court dismissed the appeal by SLC and allowed the cross-appeal, restoring the decision of the trial judge with respect to no-fault liability and the damages to be awarded to the plaintiffs. The Court expressly rejected the theory of real liability adopted by the QCCAl, which unduly limited the scope of art. 976 and the possibility of instituting a class action.
Article 976 of the Code states that:
976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.
In the process of determining that art. 976 permitted scheme of no-fault liability, the Court examined three cases from the SCC and the QCCA dating as far back as 1896, in which no-fault liability was imposed in Québec upon a finding of excessive neighbourhood annoyances. These cases confirmed that where there is excessive interference with one’s enjoyment of their property, he or she should have the right to recover damages even where there is absence of fault; the fact that the defendant had shown care and caution did not exempt him from liability.
There was also evidence that the Québec legislature rejected prior drafts of art. 976 that imposed a positive obligation on owners to not cause excessive inconveniences to neighbours. Instead, it adopted a version that was silent on the question of liability resulting from neighbourhood annoyances.
The Court also reviewed academic commentaries that favoured the recognition of a scheme of civil liability based on the simple existence of abnormal neighbourhood disturbances without the requirement of proving fault, as it would be consistent with the approach taken in Canadian common law.
At common law, the tort of nuisance – defined as unreasonable interference with the use of land – is focused on the harm suffered by the victim rather than on wrongful conduct by the defending party. The interference must be intolerable to an ordinary person, which must be assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff’s use and the utility of the activity.
The principle of the relativity of rights states that one party’s right to exercise his or her right of ownership of property must necessarily limited by the other party’s right to enjoy his or her property. The Court concluded that a no-fault liability regime in respect of nieghbourhood disturbances struck a fair balance between the rights of owners or occupants of neighbouring lands.
It was almost disappointing to find that the SCC decision with the best opening paragraph of the year turned out to be so unexciting; even the facts of the case and the injuries suffered by the class were mundane. Without disrespect to the plaintiffs, the annoyances complained of consisted of clinker dust or cement dust that demanded many residents to wash their cars, windows and garden furniture frequently; there was sulphur, smoke and cement odours as well as noise from the cement plant’s operation which “caused annoyances that were beyond the limit of tolerance” in different parts of the community. (para. 95)
As this case dealt specifically with article. 976 of the Code, it would have little application to other provinces beyond Quebec. However, the Court’s disposition of this case was not at all surprising. It seems only proper to interpret the Québec civil law in a manner that will be consistent with the English common law that applies to the rest of the country, by applying principles from the tort of nuisance in addressing the provision regarding neighbourhood disturbances in the Code.