Road Salt Contamination: Steadman v Lambton County

On January 16, 2015, the Ontario Superior Court (“ONSC”) in Sarnia released its decision in Steadman v Lambton (City), 2015 ONSC 101 [Steadman]. The decision awarded over $107,000 to Evelyn and Joseph Steadman, who sued the County of Lambton for 15 years of crop losses and a drop in property value, which was caused by the municipality’s use of salt during winter road maintenance.

Based on the reaction of the Ontario Good Roads Association, an advocacy group representing municipal transportation and public works interests, the Steadman decision has caused great concern among municipal officials. Given municipalities’ statutory obligation to keep roadways in a reasonable state of repair, local governments feel the decision places them in a no-win situation. Municipalities in Ontario maintain thousands of kilometers of road that abuts farmland. They face potential liability for not doing enough to maintain roads and potential liability for doing too much. Since the decision was released there have been calls to amend the Municipal Act, 2001, SO 2001, c 25, to protect municipalities from nuisance claims related the use of road salts.

In this post, I will examine Justice T.J. Carey’s analysis in the Steadman decision and explain why the ability of farmers and other landowners to pursue nuisance claims against municipalities should be maintained.

Background

At the time of the decision, Joseph Steadman was a full-time farmer who had been farming the same property for over 40 years. He began to suspect crop damage caused by the County’s use of road salt in the mid-1990s and decided to investigate and record the damage as it spread. He contacted the County and showed the roads manager his soil sample results. The County and its insurer denied any involvement or responsibility for the contamination.

After collecting more evidence Mr. and Ms. Steadman “reluctantly” initiated litigation and claimed damages for crop losses from 1998 to 2013, the cost of soil and plant analysis, and the diminished value of the farm.

Damage Caused by Road Salt an Unreasonable Interference with Land

Private nuisance is defined as the unreasonable interference with the use and enjoyment of land. The term “unreasonable” indicates that only substantial interference, intolerable by the ordinary occupier, will gives rise to nuisance.

A claim of nuisance against a government for the application of salt upon a farm property is not unprecedented. Schenck et al v The Queen; Rokeby v The Queen (1981), 34 OR (2d) 595 [Schenck], found the contamination of peach and apple orchards by salt spray originating from Ontario highways was a nuisance. The case later affirmed by the Supreme Court of Canada (“SCC”) (see [1987] 2 SCR 289).

The law of nuisance is a line drawing exercise. It attempts to draw a line between the harms the individual must tolerate as a member of society and those that impose a disproportionate burden.

At paragraph 27, Schenck addressed this balancing of interests:

On a balancing of the conflicting interests appropriate to this department of the law, it would be unreasonable to compel these plaintiffs to continue to suffer this interference for an indeterminate time, as the government would have it, without compensation. In reality, their injury is a cost of highway maintenance and the harm suffered by them is greater than they should be required to bear in the circumstances, at least without compensation. Fairness between the citizen and the state demands that the burden imposed be borne by the public generally and not by the plaintiff fruit farmers alone.

In Steadman, Carey notes the rationale in Schenck remains persuasive and has been quoted with approval by the SCC, most recently in Antrim Truck Centre Ltd v Ontario (Transportation), [2013] 1 SCR 594.

Nuisance, unlike negligence, does not focus on the defendant’s conduct. A defendant’s conduct may be reasonable and yet result in an unreasonable interference with the plaintiff’s property rights. As a result, the social utility of the use of salt in road maintenance and the lack of negligence on the part of the County does not excuse its liability.

Justice Carey accepted the evidence of the environmental engineer commissioned by Mr. Steadman regarding the dispersal, spreading and infiltration of the road salt into the farm’s soil. He concluded that the damage caused by the salt to Evelyn and Joseph Steadman’s farm was a significant harm that amounted to an unreasonable interference with his property for which he is entitled to be compensated.

No Mitigation Required

The County argued that if road salt was the cause of the damage to the Steadman’s farm, they had a duty to mitigate the effects of the damage by digging irrigation ditches, erecting fences to stop the wind from carrying the salt across the fields and tilling gypsum into their soil.

Justice Carey rejected this argument. The digging of ditches is expensive and requires engineering expertise and equipment, the erection of snow fencing is ineffective and the use of gypsum imposes an unreasonable burden on Mr. Steadman.

Justice Casey concluded:

The County is in the best position to determine and bring about remediation of the road salt contamination to the Steadman’s property and measures to reduce or eliminate future damage. It would think it reasonable to conclude that their failure to do so could have further ramifications.

Evelyn and Joseph were awarded $45,000 for crop losses, $5,652 for soil and plant analysis, and $56,700 for diminution of value of property.

Conclusion

The degradation of soil that abuts municipal roadways is an environmental cost and an externality of highway maintenance. The use of nuisance claims by landowners who have been injured by the application of salt forces municipalities to internalize this cost and seek ways to lower future liability.

In the decision, Justice Carey notes that the application rate for the County was 54% percent higher than that recommended by the Ontario Ministry of Transportation. The specter of liability may cause municipalities like Lambton to reduce the quantity of salt used on their roads. This could reduce the soil degradation of abutting properties and increase crop yields.