SUPREME
COURT OF CANADA
Between:
St.
Lawrence Cement Inc.
Appellant /
Respondent on cross‑appeal
and
Huguette Barrette
and Claude Cochrane in their capacity of
representing
the designated group
Respondents /
Appellants on cross‑appeal
‑ and ‑
Friends
of the Earth, Quebec Environmental Law Centre and
Quebec Business Council on the Environment
Interveners
Official English Translation
Coram: McLachlin C.J. and
Bastarache,* LeBel, Deschamps, Fish, Abella and Charron JJ.
Joint Reasons
for Judgment:
(paras. 1 to 119)
|
LeBel and Deschamps JJ.
(McLachlin C.J. and Fish, Abella and Charron JJ. concurring)
|
* Bastarache
J. took no part in the judgment.
______________________________
St. Lawrence Cement Inc. v. Barrette, [2008] 3 S.C.R. 392,
2008 SCC 64
St. Lawrence Cement Inc. Appellant/Respondent
on cross‑appeal
v.
Huguette
Barrette and Claude Cochrane, in their capacity as
representatives of the designated group Respondents/Appellants
on cross‑appeal
and
Friends of
the Earth, Quebec Environmental Law Centre and
Quebec Business Council on the Environment Interveners
Indexed as: St. Lawrence Cement Inc. v. Barrette
Neutral citation: 2008 SCC 64.
File No.: 31782.
2008: March 27; 2008: November 20.
Present: McLachlin C.J. and Bastarache,
LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for quebec
Property _ Neighbourhood disturbances _ No‑fault
liability _ Operation of cement plant _ Whether in Quebec civil law scheme of
no‑fault civil liability in respect of neighbourhood disturbances under
art. 976 C.C.Q. applies where annoyances suffered are excessive _ Whether
special statute governing plant’s activities confers immunity on plant for
neighbourhood disturbances.
Prescription _ Interruption _ Judicial demand _
Neighbourhood disturbances resulting from operation of cement plant causing
damage that spread out over time _ Whether lawsuit interrupted prescription for
damage suffered after lawsuit filed _ Whether that damage arose from “same
source” _ Civil Code of Québec, S.Q. 1991, c. 64, art. 2896.
Damages _ Assessment _ Use of average amounts _ Class
action _ Neighbourhood disturbances resulting from operation of cement plant _
Members of group divided into four residential zones to ensure that there some
basic injury common to residents of each zone _ Recovery subject to individual
claims procedure, but amount to be awarded to each member assessed using
average determined for each zone _ Whether it appropriate to use average
amounts in assessing damages of members of group covered by class action.
A special statute passed by the Quebec legislature in
1952 authorized SLC to build a cement plant in a municipality. After the plant
began operating in 1955, neighbourhood problems arose between SLC and
neighbours who were displeased with the consequences of the plant’s activities.
The Ministère de l’Environnement stepped in several times in response to
citizens’ complaints about problems with dust, odours and noise, and the plant
itself produced several environmental incident reports. Alleging various
faults in the operation of SLC’s plant and also contending that the
neighbourhood disturbances caused by the plant were abnormal or excessive, B
and C filed a motion for authorization to institute a class action on behalf of
the other residents living in areas near the plant. The motion was granted,
and the action was filed on August 1, 1994. SLC stopped operating the plant in
1997.
The trial court allowed the class action on the basis
that a scheme of no‑fault liability in respect of neighbourhood
disturbances exists under art. 976 of the Civil Code of Québec (“C.C.Q.”).
Because, in its view, the evidence showed that there was a common injury, but
that it varied in intensity from one zone to another and from year to year, the
court awarded damages that varied from zone to zone. It also held that group
members would have to file individual claims for the damages being awarded,
since it was difficult to determine the exact number of members in each zone.
The Court of Appeal allowed SLC’s appeal in part with regard to certain aspects
of the assessment of damages, but found the company civilly liable on the basis
of proven fault under the general rules of civil liability in light of its
failure to comply with certain applicable regulatory provisions. The court
rejected the theory of no‑fault liability in respect of neighbourhood
disturbances.
SLC appealed with regard to the Court of Appeal’s
conclusion that it was liable on the basis of fault, and to the method adopted
for determining the quantum of damages, to prescription and to the immunity to
which it claims to be entitled under the special statute applicable to its
plant. B and C cross‑appealed, seeking recognition of a no‑fault
liability scheme applicable to neighbourhood annoyances that are excessive, and
seeking to restore the trial court’s conclusions on the quantum of damages.
Held: The
appeal should be dismissed and the cross‑appeal allowed.
Even though it appears to be absolute, the right of
ownership has limits. Article 976 C.C.Q. exemplifies this in
prohibiting owners of land from forcing their neighbours to suffer abnormal or
excessive annoyances. Two regimes of civil liability in respect of
neighbourhood disturbances should be recognized in Quebec law: one, under the
ordinary rules of civil liability, is based on the wrongful conduct of the
person who allegedly caused the disturbances, while the second is a regime of
no‑fault liability based on the extent of the annoyances suffered by the
victim for the purposes of art. 976 C.C.Q. [20] [86]
Where fault‑based liability is concerned, civil
fault may relate either to the abusive exercise of a right of ownership
(art. 7 C.C.Q.) or to a violation of standards of conduct that are
often set out in legislative provisions relating to the use of property.
However, conduct is not the deciding criterion when it comes to abnormal
annoyances under art. 976 C.C.Q. An owner who causes abnormal
annoyances without either intent to injure or excessive and unreasonable
conduct does not abuse his or her rights, because he or she cannot be accused
of wrongful conduct. A finding that abnormal annoyances were caused will
therefore not be enough to establish fault in the exercise of a right. On the
other hand, an owner who commits a fault may be held liable for damage even if
the damage does not reach the level of abnormal annoyances. Article 976 C.C.Q.
does not guarantee immunity from the consequences of civil fault. As for the
violation of a legislative standard, it will constitute civil fault only if it
also constitutes a violation of the standard of conduct of a reasonable person
under the general rules of civil liability set out in art. 1457 C.C.Q.
[22] [30‑31] [33‑34]
In addition to the general rules applicable to fault‑based
civil liability, it is necessary to recognize a scheme of no‑fault civil
liability in respect of neighbourhood disturbances under art. 976 C.C.Q.
that is based on the annoyances suffered by the victim being excessive rather
than on the conduct of the person who allegedly caused them. The inclusion of
art. 976 in the book on property confirms that the legislature intended to
separate neighbourhood relations from the general rules on obligations. This
provision thus relates more to the right of ownership than to the general rules
of civil liability. Next, the actual words of art. 976 do not require
evidence of wrongful conduct to establish the liability of an owner who has
caused excessive neighbourhood annoyances. Moreover, the commentaries of the Civil
Code Revision Office and the Minister of Justice support a conclusion that the
legislature’s intention was not to limit actions relating to neighbourhood
disturbances to cases involving the wrongful exercise of a right. Finally,
art. 976 is related to other provisions that focus on the result of an
act, not on an owner’s conduct. A scheme of civil liability based on the
existence of abnormal neighbourhood disturbances that does not require proven
or presumed fault is also consistent with the approaches taken in Canadian
common law and in French civil law. What is more, such a scheme is consistent
with general policy considerations, such as the objective of environmental
protection and the application of the polluter‑pay principle. [3] [20]
[37] [72‑75] [80]
The theory of real liability adopted by the Court of
Appeal must be rejected. According to this theory, the obligation not to
injure one’s neighbours must be treated as a charge on every immovable in
favour of neighbouring lands. As soon as the limit of normal annoyances is
exceeded, the neighbouring owner can set up his or her right against the owner
who is at fault by bringing an immovable real action to put an end to the
disturbance. As for claims for compensation of a personal nature, they are
governed by the traditional rules of civil liability. There are several
problems with this approach: rather than a personal action, only an immovable
real action would be possible; a remedy under art. 976 C.C.Q. would
not be available to lessees or occupants, since they would not be able to claim
to have a real right; and it would as a result be difficult, if not impossible,
to institute class actions in situations where art. 976 C.C.Q.
applies. [81‑84]
In the instant case, the trial judge concluded that SLC
had not committed a civil fault in relation to its statutory obligations. She
found that SLC had fulfilled its obligation to use the best known means to
eliminate dust and smoke and had taken reasonable precautions to ensure that
its equipment was in good working order at all times and was functioning
optimally. Her interpretation of the facts is reasonable, and her analysis of
the law is correct. B and C have not shown that the judge made an error in
this regard that justified reversing her decision. [92‑94]
Regarding no‑fault liability in respect of
neighbourhood disturbances under art. 976 C.C.Q., the trial judge
said she was convinced that, even though SLC had operated its plant in
compliance with the applicable standards, B and C and the members of the group
they are representing had suffered abnormal annoyances that were beyond the
limit of tolerance neighbours owe each other according to the nature or
location of their land. In view of her findings of fact, the trial judge was
justified in finding SLC liable under art. 976 C.C.Q. Moreover,
she did not misinterpret the word “neighbour” when she concluded that all members
living in the neighbourhoods adjacent to the plant were neighbours of the plant
for the purposes of art. 976 C.C.Q. on the basis that they lived
close enough to it. Although the plaintiff must prove a certain geographic
proximity between the annoyance and its source, the word must be construed
liberally. [94‑96]
The 1952 special statute respecting SLC did not grant
SLC immunity from actions in damages relating to its industrial activities.
Although that statute authorized the operation of the plant while requiring
that the best means available be used, it in no way exempted SLC from the
application of the ordinary law. When the legislature excludes the application
of the ordinary law, it generally does so expressly. There is no provision in
the special statute precise enough to justify a conclusion that the law of
civil liability has been excluded for all consequences of the plant’s
activities. [97‑98]
Damage relating to events subsequent to the judgment
authorizing the class action is not subject to prescription. The application
for authorization to institute a class action suspended prescription until the
judgment granting the motion was no longer susceptible of appeal
(art. 2908 C.C.Q.), and the filing of the action then interrupted
prescription (art. 2892 C.C.Q.). According to art. 2896 C.C.Q.,
such an interruption continues until judgment and has effect in respect of any
right arising from the “same source”. These words must be interpreted
liberally. Here, the source of the continuing damage suffered by B and C,
namely the acts that generated their right of action, remains the same:
activities of SLC that caused excessive neighbourhood annoyances. Since those
activities continued until 1997, it would make no sense, in addition to being
impractical, to ask B and C to repeat their motion every three years for each
annoyance suffered. [99‑103] [106]
Finally, given the trial judge’s discretion and the
difficulty of assessing environmental problems and annoyances, the trial judge’s
use of average amounts in determining the quantum of damages was reasonable and
appropriate in the circumstances. SLC has not shown that its liability
increased as a result, and there is no indication that the amount awarded was
based on a wholly erroneous estimate of the injury. The trial court’s
conclusions on the assessment of damages must therefore be restored. [116]
Distinguished: Lapierre
v. Quebec (Attorney General), [1985] 1 S.C.R. 241; Christopoulos
v. Restaurant Mazurka Inc., [1998] R.R.A. 334; considered: Drysdale
v. Dugas (1896), 26 S.C.R. 20; Canada Paper Co. v. Brown (1922), 63
S.C.R. 243; Katz v. Reitz, [1973] C.A. 230; Sirois v. Lévesque‑Gagné,
[1996] Q.J. No. 2669 (QL); Gourdeau v. Letellier de St‑Just,
[2002] R.J.Q. 1195; referred to: Houle v. Canadian National Bank,
[1990] 3 S.C.R. 122; Brodeur v. Choinière, [1945] C.S. 334; Air‑Rimouski
Ltée v. Gagnon, [1952] C.S. 149; Lessard v. Dupont Beaudoin, [1997]
R.D.I. 45; Morin v. Blais, [1977] 1 S.C.R. 570; Compagnie d’assurance
Continental du Canada v. 136500 Canada inc., [1998] R.R.A. 707; Union
commerciale Compagnie d’assurance v. Giguère, [1996] R.R.A. 286; St‑Louis
v. Goulet, [1954] B.R. 185; Comité d’environnement de Ville‑Émard
(C.E.V.E.) v. Domfer Metal Powders Ltd., [2006] Q.J. No. 13631 (QL),
application for leave to appeal granted, [2007] 1 S.C.R. viii, appeal
discontinued, [2008] 2 S.C.R. v; Dell Computer Corp. v. Union des
consommateurs, [2007] 2 S.C.R. 801, 2007 SCC 34; Imperial Oil Ltd. v.
Quebec (Minister of the Environment), [2003] 2 S.C.R. 624, 2003 SCC 58; St‑Pierre
v. Daigle, [2007] Q.J. No. 1275 (QL), 2007 QCCS 705; Coalition pour
la protection de l’environnement du parc linéaire “Petit Train du Nord” v.
Laurentides (Municipalité régionale de Comté des), [2005] R.J.Q. 116,
motions for appeal and cross‑appeal denied, [2005] Q.J. No. 9042
(QL), 2005 QCCA 664; Dicaire v. Chambly (Ville), [2000] Q.J.
No. 884 (QL); Bouchard v. Corp. Stone Consolidated, [1997] Q.J. No. 4574
(QL); Arseneault v. Société immobilière du Québec, [1997] Q.J.
No. 4570 (QL); Carey Canadian Mines Ltd. v. Plante, [1975] C.A.
893; Théâtre du Bois de Coulonge inc. v. Société nationale des québécois et
des québécoises de la Capitale inc., [1993] R.R.A. 41; Ouimette v.
Canada (Procureur général), [2002] R.J.Q. 1228; Allen v. Gulf Oil
Refining Ltd., [1981] 1 All E.R. 353; Manchester Corporation v.
Farnworth, [1930] A.C. 171; Hammersmith and City Railway Co. v. Brand
(1869), L.R. 4 H.L. 171; Ryan v. Victoria (City), [1999] 1 S.C.R. 201; Tock
v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181; Canadian
Pacific Railway Co. v. Roy, [1902] A.C. 220; Laforest v. Ciments du St‑Laurent,
[1974] C.S. 289; ABB Inc. v. Domtar Inc., [2005] R.J.Q. 2267, 2005 QCCA
733; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital
St‑Ferdinand, [1996] 3 S.C.R. 211; Hollick v. Toronto (City),
[2001] 3 S.C.R. 158, 2001 SCC 68; Thompson v. Masson, [2000] R.J.D.T.
1548; Curateur public v. Syndicat national des employés de l’hôpital St‑Ferdinand,
[1990] R.J.Q. 359; Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229.
Statutes and Regulations Cited
Act respecting Atlas Realties Co. — La Compagnie
d’Immeubles Atlas, S.Q. 1951‑52, c. 131,
s. 5.
Act respecting industrial accidents and
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s. 438.
Automobile Insurance Act, R.S.Q., c. A‑25, s. 83.57.
Civil Code of Lower Canada, arts. 1053, 2233a.
Civil Code of Québec,
S.Q. 1991, c. 64, arts. 7, 976, 988, 991, 1457, 1458, 1611, 2892,
2896, 2908.
Code of Civil Procedure, R.S.Q., c. C‑25, arts. 59, 67, 494, 999(d),
1003, 1028, 1031, 1037‑1040, 1045.
Quebec Companies Act,
R.S.Q. 1941, c. 276.
Regulation respecting pits and quarries, R.R.Q. 1981, c. Q‑2, r. 2, s. 34.
Regulation respecting the application of the
Environment Quality Act, (1993) 125 G.O. II, 5997,
s. 12.
Regulation respecting the quality
of the atmosphere, R.R.Q. 1981, c. Q‑2,
r. 20, ss. 10, 11, 42.
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APPEAL and CROSS‑APPEAL from a judgment of the
Quebec Court of Appeal (Forget, Pelletier and Morissette JJ.A.), [2006] R.J.Q.
2633, SOQUIJ AZ-50396994, [2006] Q.J. No. 13603 (QL), 2006 CarswellQue
9389, 2006 QCCA 1437, allowing in part an appeal and dismissing an incidental
appeal from a decision by Dutil J., [2003] R.J.Q. 1883, SOQUIJ AZ-50173892, [2003]
Q.J. No. 5273 (QL), 2003 CarswellQue 994. Appeal dismissed and cross‑appeal
allowed.
François Fontaine,
Andres C. Garin and Gregory Bordan, for the
appellant/respondent on cross‑appeal.
Jacques Larochelle,
for the respondents/appellants on cross‑appeal.
Michel Bélanger
and William Amos, for the interveners Friends of the Earth and Quebec
Environmental Law Centre.
Guy Du Pont, Marc‑André
Boutin and Brandon Wiener, for the intervener Quebec Business
Council on the Environment.
English version of the judgment of the Court delivered
by
LeBel and Deschamps JJ. —
I. Introduction
A. Nature
of the Case
[1]
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.
[2]
In this case, Huguette Barrette and Claude Cochrane
(the “representatives”), residents of the city of Beauport (now a borough of
the city of Québec), instituted a class action against St. Lawrence Cement
Inc. (“SLC”) for neighbourhood disturbances related to the operation of a
cement plant in that city. The Superior Court allowed the class action on the
basis that a scheme of no‑fault liability in respect of neighbourhood
disturbances exists under art. 976 of the Civil Code of Québec,
S.Q. 1991, c. 64 (“C.C.Q.”). The Court of Appeal allowed SLC’s
appeal in part with regard to certain aspects of the assessment of damages, but
found the company civilly liable on the basis of proven fault under the general
rules of civil liability.
[3]
In an appeal from the Court of Appeal’s decision, this Court must
now determine whether in Quebec civil law there is a scheme of no‑fault
civil liability in respect of neighbourhood disturbances under art. 976 C.C.Q.
that applies where the annoyances suffered are excessive. We answer this
question in the affirmative and, on that basis and for the reasons that follow,
dismiss SLC’s appeal. However, the cross‑appeal is allowed and the
damages awarded by the Superior Court are restored.
B. Origin of the Case
(1) Establishment of the
Cement Plant
[4]
This case originated when SLC implemented a plan to establish a
large cement plant in Villeneuve (which was later amalgamated with the city of
Beauport and then with the city of Québec). SLC was incorporated in 1951 under
the Quebec Companies Act, R.S.Q. 1941, c. 276, and began building
its plant in 1952. Although many lots were still vacant in the area where SLC
established its plant, some houses had been built on land adjacent to its
property. Moreover, a special statute passed by the Quebec legislature
authorized the company to establish its plant in the “municipality of the
village of Villeneuve” and conferred additional corporate powers on it (An
Act respecting Atlas Realties Co. — La Compagnie d’Immeubles Atlas,
S.Q. 1951‑52, c. 131 (“SLC Special Act”)).
(2) Development of
Neighbourhood Problems for the Plant
[5]
The plant began operating around 1955. Neighbourhood problems
quickly arose between SLC and neighbours who were displeased with the
consequences of the plant’s activities. The evidence shows that environmental
incidents occurred as early as 1956 ([2003] R.J.Q. 1883 (Sup. Ct.), at
para. 10). In 1974, the Superior Court ordered SLC to compensate a
citizen for negligence in firing its cement kilns. The Ministère de
l’Environnement then stepped in several times in the 1980s in response to
citizens’ complaints about problems with dust, odours and noise. In the spring
of 1990, SLC agreed to wash houses that had been dirtied during the winter by
debris and dust from the plant. It also offered, in 1991 and 1992, to pay to
have some residents’ cars washed.
[6]
The Ministère de l’Environnement received many complaints about
environmental incidents (dust from the plant, foul odours) between June 8,
1991 and February 1, 1996. And the plant produced several environmental
incident reports between February 6, 1992 and May 16, 1996
(Sup. Ct., at paras. 243‑45; [2006] R.J.Q. 2633, 2006 QCCA 1437, at
paras. 27‑28).
[7]
The evidence also shows that SLC invested several million dollars
for environmental protection purposes. In particular, it spent more than
$8 million between 1991 and 1995, mostly on the installation of new dust
collectors for the kilns (Sup. Ct., at para. 257). SLC stopped operating
the plant in 1997, but the disputes with its neighbours continued in the courts.
(3) The Class Action
[8]
On June 4, 1993, the representatives filed a motion in
the Quebec Superior Court for authorization to institute a class action. The
motion was granted on March 31, 1994, and the action was filed on
August 1, 1994. The representatives alleged various faults in the
operation of SLC’s plant but also contended that the neighbourhood disturbances
caused by the plant were abnormal or excessive. The proposed group was made up
of Beauport residents living in areas near the plant. SLC denied any liability
and contested the action both at the authorization stage and on the merits.
C. Judicial History
(1) Superior Court
(a) Judgment Granting
Authorization
[9]
The application for authorization to institute a class action
came before Thibault J., who held that the four conditions set out in
art. 1003 of the Code of Civil Procedure, R.S.Q., c. C‑25
(“C.C.P.”), had been met. First, regarding the requirement that identical,
similar or related questions of law or fact be raised, Thibault J.
accepted that the claims for damages were based on the same sources of injury
and that the evidence on the plant’s liability would be common. She then found
that the evidence showed a strong appearance of right and thus that the facts
alleged seemed to justify the conclusions sought. Next, the large number of
people in the group made the application of art. 59 or 67 C.C.P. difficult
and impracticable. Finally, Thibault J. concluded that the
representatives were in a position to represent the group’s members
adequately. She therefore granted the motion for authorization to institute a
class action and ascribed the status of representative to Huguette Barrette and
Claude Cochrane.
(b) Judgment on the
Merits, [2003] R.J.Q. 1883
[10]
A few years later, Dutil J. heard the action on the merits.
She affirmed the judgment authorizing the institution of a class action. She
also found that events subsequent to the filing of the motion for authorization,
up to 1997, were relevant to the proceedings.
[11]
Dutil J. held that SLC was liable on the basis that the
annoyances suffered by the representatives and the members of the group were
excessive. Despite SLC’s efforts to comply with the relevant standards in
operating its plant, its emissions of dust, odours and noise had caused
abnormal annoyances for its neighbours and it was therefore civilly liable
under art. 976 C.C.Q. However, Dutil J. did not find that SLC
had committed a fault.
[12]
Dutil J. found that the scheme of liability under
art. 976 C.C.Q. was available to all SLC’s neighbours, both lessees
and owners. In her opinion, all the group’s members lived close enough to SLC
to be considered “neighbours” for the purposes of that scheme. Even those who
had moved near SLC’s plant after it opened were entitled to damages.
Dutil J. also held that the statutory authorization given to SLC to
operate a cement plant did not give it immunity for damage suffered by its
neighbours, and she rejected a prescription argument made in relation to some
of the damage.
[13]
According to Dutil J., the evidence showed that there was a
common injury, but that it varied in intensity from one zone to another and
from year to year. As a result, she awarded damages that varied from zone to
zone. Because it was difficult to determine the exact number of members in
each zone, Dutil J. held that group members would have to file individual
claims for the damages being awarded (paras. 417 and 423).
(2) Court of Appeal,
[2006] R.J.Q. 2633, 2006 QCCA 1437
[14]
SLC appealed to the Quebec Court of Appeal. The reasons for
judgment were written by Pelletier J.A., and Forget and
Morissette JJ.A. concurred in them. Pelletier J.A. rejected the
theory of no‑fault liability in respect of neighbourhood disturbances and
instead found SLC liable on the basis of proven fault. The Court of Appeal
also intervened to reduce the amount of compensation awarded by Dutil J.
[15]
The Court of Appeal interpreted the Quebec case law on
neighbourhood obligations from the standpoint of real liability (responsabilité
propter rem) (para. 99). In its opinion, this means that
neighbourhood relations impose reciprocal passive charges on the holders of
real rights in land, which permits a balance to be struck in the use of
neighbouring properties and thus grounds a real rather than a personal action.
As a result, only owners can enjoy the protection of art. 976 C.C.Q.
Moreover, a class action cannot be based on that provision, because a class
action is a procedural vehicle designed solely for exercising rights belonging
to persons.
[16]
According to the Court of Appeal, a neighbour who seeks to have
an owner found personally liable bears the burden of proving fault, a causal
connection and injury under the traditional rules of civil liability.
Examining SLC’s liability from this standpoint, the court found that
Dutil J. had erred in assessing the extent of SLC’s obligations under the
regulatory provisions applicable to its facility. The Court of Appeal found
that SLC had an obligation to properly maintain its equipment and to ensure
that its equipment functioned optimally during production hours. The court
therefore found that SLC had to be able to cease operating, either entirely or
partially, as soon as a breakdown occurred, and for as long as was necessary to
make repairs. In the Court of Appeal’s opinion, the evidence showed that
SLC had failed to meet this requirement numerous times during the period
covered by the claim. SLC had therefore committed a fault and was, as a
result, civilly liable.
[17]
The Court of Appeal agreed with Dutil J. that the filing of
the action by the representatives had suspended and interrupted prescription
and that events subsequent to the filing of the action were relevant. It also
held that the method of compensation chosen by Dutil J. was acceptable,
and it stressed the importance of the Superior Court’s discretion in choosing
the appropriate recovery method. However, the Court of Appeal found that
basing the compensation on average amounts was not appropriate where the damage
suffered by owners owing to additional painting work was concerned. It
accepted SLC’s argument that [translation]
“the trial judge wrongly awarded an ‘average’ compensation amount to every
owner in each zone for additional painting expenses that were not incurred by
all of them” (para. 241). The Court of Appeal therefore struck out the
amount the Superior Court had awarded to the owners under this head. It also
intervened to reduce the compensation awarded to the group members by a
percentage amount. Its analysis of civil liability led it to limit the
compensation amounts to injuries resulting from the fact that SLC’s equipment
was not functioning optimally. It therefore reduced the awarded amounts to
exclude annoyances not resulting from SLC’s fault.
[18]
SLC appealed to this Court with regard to the Court of Appeal’s
conclusion that it was liable on the basis of fault and, in the alternative,
with regard to the existence of a causal connection between its fault and the
damages claimed. It also appealed with regard to the method adopted for
determining the quantum of damages, to prescription and to the immunity to which
it claims to be entitled under the special statute applicable to its Beauport
plant. The representatives cross‑appealed, seeking recognition of a no‑fault
liability scheme applicable to neighbourhood annoyances that are excessive, and
of the possibility of instituting a class action under that scheme. They also
sought to restore the Superior Court’s conclusions on the quantum of
damages.
II. Analysis
A. Issues
[19]
In this appeal, the Court must consider the following issues:
(1) Is civil liability in respect of
neighbourhood disturbances in Quebec law necessarily based on fault? Is it
possible that a no‑fault liability scheme exists? What would the nature
of such a scheme be, and how would it apply to the facts of this case?
(2) Does the special statute passed by
the Quebec legislature to govern SLC’s activities confer immunity on SLC for
neighbourhood disturbances?
(3) Did the representatives’ lawsuit
interrupt prescription for damage suffered after it was filed?
(4) Was it appropriate for the courts
below to use average amounts in assessing the damage suffered by the members of
the group covered by the class action?
B. General Framework
for the Discussion on Civil Liability in Respect of Neighbourhood Disturbances
[20]
The main issues that arise in this appeal relate to the legal
nature of the regime of civil liability in respect of neighbourhood
disturbances in Quebec law. In reviewing the disagreements among judges and
commentators over the content of this regime, it becomes clear that the basic
issue is whether the Court should recognize or reject a liability scheme based
on the extent of the annoyances suffered by the victim rather than on the
conduct of the person who allegedly caused them. A no‑fault liability
regime would be in addition to the ordinary rules of civil liability. Before
this form of liability is examined, it must be determined how civil liability
based on fault can apply in the context of neighbourhood disturbances.
C. Fault‑Based
Liability
[21]
Article 1457 C.C.Q. sets out the general rules of
fault‑based liability as follows:
1457. Every person has a duty to abide by the rules of
conduct which lie upon him, according to the circumstances, usage or law, so as
not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is
responsible for any injury he causes to another person by such fault and is
liable to reparation for the injury, whether it be bodily, moral or material in
nature.
He is also liable, in certain cases, to reparation
for injury caused to another by the act or fault of another person or by the
act of things in his custody.
The first rule
imposes a general duty to abide by the rules of conduct that lie upon a person
having regard to the law, usage or circumstances (Ministère de la Justice, Commentaires
du ministre de la Justice: Le Code civil du Québec — Un mouvement de société
(1993), vol. I, at p. 886). Civil fault [translation] “is the difference between the agent’s conduct
and the abstract, objective conduct of a person who is reasonable, prudent and
diligent” (J.‑L. Baudouin and P. Deslauriers, La
responsabilité civile (7th ed. 2007), vol. I, at p. 171; see
also J. Pineau and M. Ouellette, Théorie de la responsabilité
civile (2nd ed. 1980), at p. 7). The standard of civil fault
thus corresponds to an obligation to act reasonably, prudently and diligently
and can be characterized as an obligation of means (J.‑L. Baudouin
and P.‑G. Jobin, Les obligations (6th ed. 2005), by P.‑G. Jobin
in collaboration with N. Vézina, at p. 38; P.‑A. Crépeau, L’intensité
de l’obligation juridique ou Des obligations de diligence, de résultat et de
garantie (1989), at p. 55). The basis for civil liability remains the
same whether the impugned conduct is intentional or unintentional (Baudouin and
Deslauriers, at p. 165). The purpose of civil liability is [translation] “not to blame or punish but
only to compensate for loss” (Baudouin and Deslauriers, at p. 9; see
also Pineau and Ouellette, at p. 60). Intent to injure is therefore
not necessary to trigger liability (Baudouin and Deslauriers, at p. 9).
[22]
In the context of neighbourhood disturbances, civil fault may
relate either to the abusive exercise of a right of ownership or to a violation
of standards of conduct that are often set out in statutory or regulatory
provisions relating to the use of property. We will consider these two types
of civil fault.
(1) Abuse of Rights
and Fault
[23]
Although the doctrine of abuse of rights has long been the
subject of debate or dispute, there is no question that it has been accepted in
Quebec civil law, in which it now has an important place, as this Court
recognized in Houle v. Canadian National Bank, [1990] 3 S.C.R.
122. The doctrine has now been codified in art. 7 C.C.Q.:
7. No right may be exercised with the intent of injuring
another or in an excessive and unreasonable manner which is contrary to the
requirements of good faith.
(See Commentaires du ministre de la Justice,
vol. I, at p. 8.)
[24]
Article 7 C.C.Q. thus gives effect to the principle
of the relativity of rights, which applies to rights as absolute in theory as
the right of ownership. According to this principle, one person’s right
necessarily limits that of another person, and to uphold all such rights
concurrently will reduce the absoluteness of each (A. Nadeau and
R. Nadeau, Traité pratique de la responsabilité civile délictuelle (1971),
at pp. 227‑28). This is true of all rights that are protected in
civil law. Such rights remain limited by their coexistence and by the fact
that they conflict with one another. As Albert Mayrand writes, “[a]ll rights
have limitations; when a person under the pretense of exercising an actual
right goes beyond the sphere of that right, it is said that he has committed an
abuse of right” (“Abuse of Rights in France and Quebec” (1974), 34 La. L.
Rev. 993, at p. 993; see also J. Ghestin and G. Goubeaux, Traité
de droit civil — Introduction générale (3rd ed. 1990), at
p. 678).
[25]
Article 7 C.C.Q. places two limits on rights: a
right may be exercised neither with the intent of causing injury nor in an
excessive and unreasonable manner. These limits constitute a codification of
the prior case law and establish the point beyond which the exercise of a right
becomes abusive (M. Ouellette, “Book One: Persons”, in Reform of the
Civil Code (1993), vol. 1‑A, at p. 5; for examples of
judgments on neighbourhood disturbances, see Brodeur v. Choinière,
[1945] C.S. 334; Air‑Rimouski Ltée v. Gagnon, [1952]
C.S. 149; Lessard v. Dupont Beaudoin, [1997] R.D.I. 45
(Sup. Ct.)). An abuse of rights relates to the exercise of a right whose
legitimacy is not at issue (Commentaires du ministre de la Justice,
vol. I, at p. 8; Ghestin and Goubeaux, at pp. 678‑79).
[26]
This leads to the following question: Does the concept of abuse
of rights under art. 7 C.C.Q. correspond to a scheme of civil
liability separate from that of arts. 1457 and 1458 C.C.Q.? Civil
law commentators in Quebec generally answer that abuse of rights constitutes
civil fault in the exercise of a right (Baudouin and Deslauriers, at
pp. 192‑93; P.‑C. Lafond, Précis de droit des biens (2nd ed.
2007), at pp. 425‑26; Ouellette, at p. 5; D.‑C. Lamontagne,
“Special Rules on the Ownership of Immovables and Servitudes”, in Reform of
the Civil Code (1993), vol. 1‑A, at p. 6; Pineau and
Ouellette, at p. 73; Mayrand, at p. 997; Nadeau and Nadeau, at
pp. 228‑29). French civil law commentators seem to take a similar
view (P. Malaurie, L. Aynès and P. Stoffel‑Munck, Les
obligations (2nd ed. 2005), at p. 56; J. Flour, J.‑L. Aubert
and É. Savaux, Les obligations, vol. 2, Le fait juridique (10th ed.
2003), at p. 118; B. Starck, H. Roland and L. Boyer,
Obligations, vol. 1, Responsabilité délictuelle (5th ed.
1996), at pp. 176‑77; Ghestin and Goubeaux, at p. 694;
G. Marty and P. Raynaud, Les obligations, vol. 1, Les
sources (2nd ed. 1988), at p. 542; H. and L. Mazeaud and
A. Tunc, Traité théorique et pratique de la responsabilité civile
délictuelle et contractuelle (6th ed. 1965), t. 1, at p. 640).
[27]
However, Ghestin and Goubeaux rightly point out that there is
something peculiar about extending the concept of fault to abuse of rights:
[translation] Of
course, most decisions penalizing abuse of rights refer to article 1382 of
the [French] Civil Code. This does not necessarily mean that abuse constitutes
fault in the exercise of a right. If . . . it is accepted that the
term “abuse of rights” refers to a specific limit on a right, it is clear that
a person who so “abuses” his or her right actually acts wrongfully and becomes
liable. Article 1382 of the Civil Code does indeed provide a basis for a
penalty for the abusive act. However, the presumption that the act is lawful
must first be rebutted by proving abuse, which makes it possible to show
fault.
There is certainly some truth to the theory of fault
in the exercise of rights, but this is not really how the question is
resolved. Control is exercised through the mechanism of civil liability.
However, to say that abuse results from fault “is to answer the question with a
question and to see a cause in what is merely a consequence”. Thus, “to get to
the question of liability, the question of abuse of rights must be resolved
first”. This is why the identification of an autonomous criterion for abuse of
rights remains of the utmost importance. [Emphasis in original; footnotes
omitted; pp. 693‑94.]
[28]
French authors Flour, Aubert and Savaux also comment on the need
to consider the context when analysing the application of the concept of fault
to abuse of rights:
[translation] [F]ault in the exercise
of a right cannot be judged by the same standards as fault in other
circumstances. Usually, the mere fact of not foreseeing the possibility of
avoidable damage and not doing something to prevent it is wrongful. A right
necessarily gives its holder a degree of impunity,
however. . . .
This leads to the conclusion that, in most cases, the
fact that a person who causes damage has a right does not constitute an
automatic justification. However, this circumstance will likely result in a
relaxation of the usual conditions of liability. [p. 118]
(See also Lafond, at p. 426.)
[29]
Where a right exists, therefore, the usual application of the
concept of fault is qualified. The holder of a right has a sphere of autonomy
in exercising that right. In such a context, it thus becomes crucial, when
analysing civil liability, to consider the nature of the right in issue and the
circumstances in which it is exercised, since, as Ghestin and Goubeaux note, an
abuse of rights must be found in order to show fault. Once an abuse is
found, the holder of the right loses the protection of the sphere of autonomy
that flows from the right. Violation of a standard of conduct is therefore
inextricably linked to the concept of abuse of rights.
(2) Abuse of Rights, Abnormal
Annoyances and Art. 976 C.C.Q.
[30]
However, conduct is not the deciding criterion when it comes to
abnormal annoyances under art. 976 C.C.Q.:
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.
An owner who
causes abnormal annoyances without either intent to injure or excessive and
unreasonable conduct [translation]
“does not abuse his or her rights, because he or she cannot be accused of
wrongful conduct” (Lafond, at p. 404). The word “abuse” implies blame and
[translation] “is ill‑suited
to an attitude that may in itself be beyond reproach” (Ghestin and Goubeaux, at
p. 686).
[31]
A finding that abnormal annoyances were caused will therefore not
be enough to establish fault in the exercise of a right. On the other hand, an
owner who commits a fault may be held liable for damage even if the damage does
not reach the level of abnormal annoyances. Article 976 C.C.Q.
does not guarantee immunity from the consequences of civil fault. According to
Professors G. Viney and P. Jourdain, such an immunity, if accepted, [translation] “would make the existence
of a neighbourhood disturbance the only possible ground for liability, one that
would apply even in cases of proven fault, and would encourage polluters not to
comply with regulations in the hope that any nuisances they caused would be
found tolerable” (Traité de droit civil — Les conditions de la
responsabilité (2nd ed. 1998), at p. 1086). Even though
art. 976 C.C.Q. incorporates a duty to tolerate normal
neighbourhood annoyances, this does not mean that it authorizes wrongful
conduct.
(3) Fault and
Violation of the Law
[32]
Standards provided for in statutes and regulations also place
limits on rights and on the exercise thereof. Many examples of this can be
found in the Civil Code of Québec, in zoning rules and in environmental
standards. As a result, the question of the relationship between
violations of the law and civil liability needs to be examined.
[33]
As we noted above, the general rules of civil liability set out
in art. 1457 C.C.Q. are based on fault (Baudouin and Deslauriers,
at p. 149). [translation]
“This is a universal concept, since it applies every time a victim alleges that
a person who caused injury is liable under the general rules” of art. 1457
C.C.Q. (P.‑G. Jobin, “La violation d’une loi ou d’un
règlement entraîne‑t‑elle la responsabilité civile?” (1984),
44 R. du B. 222, at p. 223). To answer this question,
the standards provided for in statutes and regulations, often called
“legislative standards”, must be analysed in light of the basic concept of
civil fault.
[34]
In Quebec civil law, the violation of a legislative standard does
not in itself constitute civil fault (Morin v. Blais, [1977]
1 S.C.R. 570; Compagnie d’assurance Continental du Canada v. 136500
Canada inc., [1998] R.R.A. 707 (C.A.), at p. 712; Jobin, at
p. 226). For that, an offence provided for in legislation must also
constitute a violation of the standard of conduct of a reasonable person under
the general rules of civil liability set out in art. 1457 C.C.Q. (Union
commerciale Compagnie d’assurance v. Giguère, [1996] R.R.A. 286 (C.A.), at
p. 293). The standard of civil fault corresponds to an obligation of
means. Consequently, what must be determined is whether there was negligence
or carelessness having regard to the specific circumstances of each disputed
act or each instance of disputed conduct. This rule applies to the assessment
of the nature and consequences of a violation of a legislative standard.
[35]
The French position is different. In French law, the violation
of a legislative standard in itself constitutes civil fault (Jobin, at
p. 229). This means that it is not necessary [translation] “to find . . . negligence, imprudence,
carelessness or something deficient in the conduct of the person who caused the
injury” (Viney and Jourdain, at p. 328). Thus, where a legislative
standard is violated, the general rules of civil liability transform the
standard into an obligation of result, since the victim can [translation] “establish fault by proving
a simple material fact without having to show that the conduct of the person
who caused the injury was also morally or socially blameworthy” (Viney and
Jourdain, at p. 342).
[36]
In Quebec, art. 1457 C.C.Q. imposes a general duty to
abide by the rules of conduct that lie upon a person having regard to the law,
usage or circumstances. As a result, the content of a legislative standard may
influence the assessment of the duty of prudence and diligence that applies in
a given context. In a civil liability action, it will be up to the judge to
determine the applicable standard of conduct — the content of which may be
reflected in the relevant legislative standards — having regard to the law,
usage and circumstances.
D. No‑Fault
Liability
(1) Preliminary
Comments
[37]
In addition to the general rules applicable to fault‑based
civil liability, it is necessary to consider the possibility of liability in
situations where neighbours suffer abnormal annoyances but the owner who causes
the damage has not committed a fault.
[38]
There is no consensus regarding the theory of no‑fault
liability in the context of neighbourhood annoyances. As we will see, however,
the existence of this form of liability is not precluded by the wording or
legislative history of art. 976 C.C.Q. or by developments in the
case law and commentaries from before and after the enactment of the Civil
Code of Québec. On the contrary, these sources provide support for it. In
addition, reviews of both comparative law and general policy considerations
favour the acceptance of no‑fault liability.
(2) Case Law and
Commentaries Predating the Enactment of Art. 976 C.C.Q.
[39]
Although the Civil Code of Lower Canada (“C.C.L.C.”)
contained no provisions governing neighbourhood relations, there were several
decisions in which courts explicitly recognized, if not the theory of no‑fault
liability in the context of neighbourhood relations, at least the principle
that an owner must compensate neighbours to whom he or she has caused excessive
annoyances.
[40]
It should be mentioned, however, that prior to the enactment of
the new Code, neighbours involved in legal proceedings, and the courts hearing
such cases, generally relied on art. 1053 C.C.L.C. Nonetheless, in
some cases courts allowed actions on the basis of evidence of excessive
annoyances without requiring that the existence of a fault be established.
Moreover, absence of fault was not always a defence. After analysing numerous
Quebec judgments from the first half of the 20th century in which the
defendants were found civilly liable owing to excessive annoyances (nuisance),
Ronald I. Cohen observed:
To most
civilian legal minds, art. 1053 means “fault” and “fault” connotes an illicit
act or at least an actor who has not acted “en bon père de famille”, who has
not, in other words, taken all reasonable care to avoid the
damage. . . .
Although a few isolated Quebec cases support the above view
. . . the jurisprudence almost uniformly supports the proposition
that the proprietor is subject to liability as regards the damage caused once
he is shown to be the author of the nuisance.
In general, the Quebec courts have not boldly articulated this
principle and have been content, upon finding the existence of a nuisance of
unreasonable dimensions, to close their inquiry there without deciding whether
reasonable care was, or could have been, taken to avoid the damage, thus coming
to the same thing in the end. . . . The problem, not
surprisingly, arises where there is unequivocal evidence to the effect that all
reasonable care has been taken to avoid the damage. On the several
occasions when the Quebec courts have been faced with the situation where the
greatest care had evidently been taken to avoid the nuisance, they have held
that it was no defence to the action.
(“Nuisance: A Proprietary Delict” (1968), 14 McGill L.J. 124, at
pp. 136‑38 (emphasis in original))
[41]
Three decisions of the Supreme Court of Canada and the Quebec
Court of Appeal are often relied on in support of the argument that prior to
the 1994 codification, the concept of no‑fault liability triggered by a
finding of excessive annoyances was accepted in Quebec civil law. Those
judgments need to be examined more closely.
[42]
The first is Drysdale v. Dugas (1896), 26 S.C.R. 20.
In it, Dugas, the owner of a house located in a residential area near a stable
operated by Drysdale, complained of disagreeable odours, noise made by the
horses at night and fetid liquids penetrating the basement of his house. Dugas
claimed damages and asked that the stable cease operating. This Court affirmed
the decisions of the lower courts, which had awarded him damages for the
annoyances he had suffered. Although Strong C.J. began by finding that
the law applicable to the case was the law set out in art. 1053 C.C.L.C.,
he added that, in Quebec law as in English common law, enjoyment of the right
of ownership was subject to respect for the rights of neighbouring owners. The
Chief Justice also stressed the similarity between English and French law on
the subject of nuisance. He then stated the proposition, based on an analysis
of English case law, that “occupiers of lands and houses have a right of action
to recover damages for any interference with the comfort and convenience of
their occupation” (p. 23). Finding that there was no question that Dugas
had suffered annoyances and that the disagreeable odours from the stable
constituted a nuisance, Strong C.J. concluded that Drysdale was liable to
Dugas and that Dugas was entitled to damages. The fact that Drysdale had shown
care and caution in operating his stable — and thus that there was no
fault — did not exempt him from liability (pp. 25‑26).
[43]
In concurring reasons with which Strong C.J. agreed
(p. 23), Taschereau J. situated his analysis in the framework
established by French authorities. Noting that in the case before the Court,
the odours, [translation] “by
their continuity and intensity, exceed the limits of the normal inconveniences
that cannot be dissociated from the neighbourhood”, Taschereau J. wrote
that the commentators and the courts [translation]
“agree that, in such a case, an action in damages lies against the person who
committed the injurious act” (p. 27). As a result, Drysdale could operate
his stable only if he compensated his neighbours for the damage he caused
them. Taschereau J. therefore attached more importance to the damage
suffered by the plaintiff than to the defendant’s acts. Thus, Strong C.J.
and Taschereau J. agreed on the existence of a scheme of no‑fault
liability even though their reasons were based on different analytical
frameworks.
[44]
The second decision is Canada Paper Co. v. Brown (1922),
63 S.C.R. 243. In that case, Brown, a neighbour of a pulp and paper mill,
sued the mill’s operator over noxious odours and fumes that resulted from the
use of sulphate‑based manufacturing processes. The reasons for judgment
in the case, which began as a demand for an injunction, show that the judges
agreed only in part. Thus, in allowing Brown’s demand, Duff J. favoured
the theory of liability based on fault pursuant to art. 1053 C.C.L.C.
(p. 251). Anglin J., writing for himself and Davies C.J.,
referred to the concept of nuisance and confirmed that the annoyances suffered
by the plaintiff were in excess of anything that could be justified in the context
of neighbourhood relations and were therefore actionable (pp. 254‑55).
Finally, Brodeur J. relied both on abuse of the right of ownership and on
excessive annoyances caused by the odours (p. 260).
[45]
Despite these differences in the reasons of the members of the
Court, some Quebec commentators viewed the case as amounting to a recognition
of no‑fault liability in respect of neighbourhood disturbances. For
example, Louis Baudouin wrote in 1953 that in Drysdale and Canada
Paper, the Court had sought to identify an excessive injury [translation] “whose cause lay not in
malicious intent in exercising a legitimate right, but rather in
objective limits on the right of ownership” (Le droit civil de la
Province de Québec: Modèle vivant de Droit comparé (1953), at p. 1285
(emphasis added)). This concept of objective limits on the right of ownership
relates not to the owner’s conduct, but to the consequences of the
owner’s use of his or her property. Likewise, Pratte J.A. of the Quebec
Court of Appeal pointed out in an oft‑quoted passage that in those two
cases, this Court had accepted a principle of inherent limits on the right of
ownership:
[translation] The right of owners to
use their things as they see fit entails an obligation not to exercise that
right in a manner that prevents neighbours from enjoying their own property.
Of course, because we live in society, each person must suffer the unavoidable
annoyances resulting from this situation, but the sum of those annoyances
must not be greater than is necessary to reconcile conflicting rights.
(St‑Louis v. Goulet, [1954] B.R. 185, at p. 191
(emphasis added))
[46]
Despite the vagueness of the legal concepts referred to by the
judges of this Court in Canada Paper, the judges expressed an intention
to protect neighbours from excessive annoyances that arise in neighbourhood
relations. Moreover, it is difficult to explain the Court’s decision in terms
of the concept of civil fault based on the diligent person standard.
[47]
Finally, in Katz v. Reitz, [1973] C.A. 230, the Quebec
Court of Appeal explicitly endorsed the theory of no‑fault liability in
respect of neighbourhood disturbances. Reitz owned a lot and a house when Katz
purchased neighbouring lots separated from Reitz’s property by a lane. In
order to build an apartment building, a company hired by Katz dug a deep hole
on Katz’s lot that caused Reitz’s house to collapse (pp. 231‑34).
[48]
The Court of Appeal found that Katz had not committed a fault.
He had hired a third party with the necessary experience and skill to perform
the work (pp. 235‑36). However, Katz’s right to exercise his right
of ownership remained limited by Reitz’s right to enjoy his property:
[translation]
However absolute it may be, the exercise of the right of ownership includes an
obligation not to injure one’s neighbours and to compensate them for damage
which the exercise of this right may cause them. This obligation exists even
in the absence of fault, and in that case results from the neighbours’
right to enjoy their property undisturbed and to be compensated for losses
which they suffer against their will from work done by another for the other’s
advantage and profit. [Emphasis added; p. 237.]
[49]
These three decisions thus showed at least partial acceptance,
even prior to the new codification, of no‑fault liability in respect of
neighbourhood disturbances. However, following a subsequent judgment of this
Court, Lapierre v. Quebec (Attorney General), [1985] 1 S.C.R. 241,
there was some question whether this view was still valid.
[50]
In Lapierre, a child had contracted encephalitis after
being vaccinated for measles pursuant to a provincial routine vaccination
policy. The Superior Court found the government civilly liable on a no‑fault
basis. The Court of Appeal set aside that judgment and dismissed the
action. This Court affirmed the Court of Appeal’s judgment and refused to find
the government liable. Chouinard J., writing for the Court, criticized, inter alia,
the theory of risk, pursuant to which fault is not necessary. According to
that theory, any act that causes damage, whether due to fault or not, attracts
liability (p. 265, referring to Mazeaud and Tunc, at p. 431,
No. 339). In Chouinard J.’s view, the theory of risk was not
accepted in Quebec law. Chouinard J. also briefly considered the argument that
Katz had opened the door to “recognizing the theory of risk”
(p. 265). He rejected that view and preferred to interpret Katz as
a decision based on fault and abuse of rights (p. 266).
[51]
In light of that decision, some judges have denied any
possibility of no‑fault liability in respect of neighbourhood
disturbances in Quebec law. For example, that was the basis for the Court of
Appeal’s decision in Christopoulos v. Restaurant Mazurka Inc., [1998]
R.R.A. 334, to exempt from liability two owners who had not been at fault when
the collapse of their building caused a wall between it and a neighbouring
building to collapse.
[52]
In view of Chouinard J.’s comments on the non‑acceptance
of the theory of risk in Quebec law, the real scope of Lapierre requires
some clarification. The case concerned not neighbourhood disturbances, but a
provincial routine vaccination policy, which, according to the plaintiff in
that case, had caused a problem of delictual liability. As Professor Lafond
points out, Chouinard J. did not rule out the possibility of no‑fault
liability in respect of the exercise of rights of ownership, particularly in
the context of neighbourhood disturbances. In fact, the Court did not deal
with the issue in Lapierre:
[translation] [I]n Lapierre, the
. . . Court did not conclusively rule out the possibility of strict
liability in connection with the right of ownership . . . . It seems
clear to us that [the Court], in deciding a traditional civil liability case,
did not want to hold that no‑fault liability is widely available
in Quebec law.
(Lafond, at p. 449 (emphasis in original))
The relevance of
that decision to neighbourhood disturbances becomes even more questionable in
the context of the Civil Code of Québec, as the wording of the new Code’s
relevant provision, and the inspiration for it, differ from those of the former
Code in this regard. At this point, a review of the legal situation created
when the new Code came into force in 1994 is relevant.
(3) Coming Into Force of
the Civil Code of Québec: Art. 976 C.C.Q. and No‑Fault
Liability
[53]
We will begin by examining the legislature’s intention in
codifying art. 976 C.C.Q. and will then discuss the cases and
commentaries in which the nature of liability in respect of neighbourhood
disturbances under the Civil Code of Québec has been considered.
(a) Legislature’s Intention
[54]
The legislative history of art. 976 C.C.Q. begins
with the work of the Civil Code Revision Office. In its 1975 Report on
Obligations to the Office, the Committee on the Law of Obligations
suggested that a specific provision on neighbourhood relations be included in
the book on obligations. The proposed provision read as follows:
95. No person may cause any damage to another
beyond the normal inconveniences resulting from proximity.
The jurists who
made this recommendation explained that the source of this obligation in Quebec
law was either the remedy for abuse of rights or the remedies based on nuisance.
They took care to distinguish the obligation described in this art. 95
from the one provided for in art. 1053 C.C.L.C. and explained that
the obligation not to inconvenience one’s neighbour applied even in the absence
of fault:
The legal obligation of good‑neighbourliness, set forth in
Article 1057 C.C., is here further defined as an obligation not only of
diligence, but of refrainment from causing any “gênes intolérables”, regardless
of whatever measures have been taken to eliminate such inconveniences.
This obligation has long been acknowledged by Quebec law, which has
referred to it as either an abuse of right or, as in Common Law, a “nuisance”.
It has recently been correctly defined as a specific legal obligation, distinct
from both the obligation set forth in Article 1053 C.C. and the concept of
fault implied by that article.
Thus, this article compels all persons, and not only landowners, not to
inconvenience their neighbours. This obligation holds even if there is no
fault and regardless of any administrative authorization.
(Civil Code Revision Office, Committee on the Law of Obligations, Report
on Obligations (1975), at p. 149)
[55]
In its 1977 Report on the Québec Civil Code, the Office in
turn proposed including a provision on neighbourhood disturbances in the book
on obligations. The recommendation in this report was worded in substantially
the same way as the one made two years earlier:
96 No
person may cause to another damage which exceeds the normal inconveniences
resulting from proximity.
(Civil Code Revision Office, Report on the Québec Civil Code
(1978), vol. I, Draft Civil Code, at p. 346)
This proposal
was supported by a commentary identical to the above‑quoted commentary by
the Committee on the Law of Obligations (Civil Code Revision Office, Report
on the Québec Civil Code (1978), vol. II, t. 2, Commentaries,
at pp. 619‑20).
[56]
However, the legislature did not adopt the two proposals
reproduced above, which would have imposed a positive obligation on owners not
to cause excessive inconveniences to neighbours. Instead, art. 976 C.C.Q.
was included in the book entitled “Property”. It provides for a passive
obligation of tolerance, as neighbours are told to suffer normal neighbourhood
annoyances. Once again, this article reads as follows:
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.
[57]
This provision is silent on the question of liability resulting
from neighbourhood annoyances.
[58]
The Minister’s commentaries concerning the chapter on the
ownership of immovables referred to [translation]
“the general principle of tolerance to be observed in neighbourhood relations”
(Commentaires du ministre de la Justice, vol. I, at p. 569).
The Minister noted that [translation]
“the new Code restates most of the traditional rules but modernizes them by
taking greater account of environmental legislation, the value of water and the
quality of life” (Commentaires du ministre de la Justice, vol. I,
at p. 570). According to the Minister, art. 976 C.C.Q. is
based on judge‑made law. Initially developing that case law on the basis
of the concept of abuse of rights, the courts had gradually created specific
legal rules for neighbourhood disturbances:
[translation] This article
is new. It refers to the principle that tolerance must be shown in
neighbourhood relations and codifies that principle in a general provision that
heads up and underlies the entire chapter. It thus codifies the academic
commentaries and case law on neighbourhood disturbances, which were originally
founded primarily on abuse of the right of ownership before a specific
framework was established for neighbourhood disturbances. [p. 573]
Thus, the
Minister’s view was that the courts, in decisions on neighbourhood relations,
had adopted a rule that owners must compensate neighbours to whom they cause
excessive annoyances. Even though art. 976 C.C.Q. is worded as a
duty of tolerance, therefore, it codifies a line of authority according to
which owners are not to be exempted from liability for damage associated with
excessive annoyances they have caused for their neighbours. Moreover,
consistently with Drysdale, Canada Paper and Katz, the
article does not state that fault must be proved to obtain compensation for
abnormal neighbourhood annoyances.
[59]
Since the enactment of the Civil Code of Québec, there
have been cases in which the Quebec Court of Appeal has decided in favour of a
scheme of no‑fault liability based on art. 976 C.C.Q. In
other decisions, however, the same court has disagreed with relying on this
provision as a source of civil liability.
(b) Case Law of the Court
of Appeal on Art. 976 C.C.Q.
[60]
Some hesitation about the basis of civil liability in respect of
neighbourhood disturbances and, more specifically, about accepting no‑fault
liability can be seen in the decisions of the Court of Appeal since the new
Civil Code came into force.
[61]
As we mentioned above, the Court of Appeal rejected no‑fault
liability in Christopoulos. In that case, the Court of Appeal
expressed the view that the theory of no‑fault liability had been
rejected in Lapierre in the context of the Civil Code of Lower Canada
(p. 350). It added that art. 976 C.C.Q. had not changed the
state of the law. The court cited Professor Claude Masse, who asserted that
the addition of art. 976 C.C.Q. had not established a scheme of no‑fault
liability in respect of neighbourhood disturbances (p. 350). We mentioned
above our reservations about the application of Lapierre to cases
concerning neighbourhood disturbances. We cannot accept Christopoulos
insofar as it is based on Lapierre. It should also be noted that the
applicable law in Christopoulos was that of the Civil Code of Lower
Canada and that the Court of Appeal referred only briefly to art. 976 C.C.Q.
[62]
However, the Court of Appeal adopted the same position more
recently in Comité d’environnement de Ville‑Émard (C.E.V.E.) v. Domfer
Metal Powders Ltd., [2006] Q.J. No. 13631 (QL), leave to appeal granted,
[2007] 1 S.C.R. viii; appeal discontinued on August 31, 2007, [2008]
2 S.C.R. v. In that case, Forget J.A., relying on the Court of Appeal’s
reasons in the judgment under appeal in the case at bar, stated that he would
be reviewing the facts in light of the [translation]
“standard theory of fault-related civil liability” (para. 125). He thus
rejected the theory of no‑fault civil liability in respect of
neighbourhood disturbances. The judgment in Domfer was rendered the
same day as the Court of Appeal’s judgment in the instant case. We will
explain below why the theory of real liability that the Court of Appeal adopted
in these two cases should be rejected.
[63]
The Court of Appeal has also accepted the possibility of no‑fault
liability for neighbourhood disturbances in two cases. In the first, Sirois
v. Lévesque‑Gagné, [1996] Q.J. No. 2669 (QL), two lots
overlooked Ms. Lévesque‑Gagné’s property. A hill with an irregular
slope rose above the line separating the three lots. The foot of the hill
crossed over that line. Ms. Lévesque‑Gagné, who wanted to level her
lot, began excavation work that eliminated the slope on it but caused erosion
on the neighbouring lots.
[64]
Mailhot J.A., writing for a unanimous Court of Appeal,
quoted Katz with approval and held that Ms. Lévesque‑Gagné’s
right to modify her own property [translation]
“is of course limited by the equally indisputable right of [her neighbours] to
the peaceful enjoyment of their property” (para. 40). Mailhot J.A.
found that the facts in Katz differed from those of the appeal before
her, because [translation]
“Ms. Lévesque‑Gagné knew that the excavation work she was
undertaking could cause the partial ruin and slumping of parts of the
neighbouring properties” (para. 41). Nevertheless, in her view, the
principle stated in Katz still applied. Mailhot J.A. accordingly
concluded that [translation] “an
owner of land, although enjoying the freedom of an owner, may not alter the property
in such a way as to cause, as here, a significant foreseeable loss on or
deterioration of neighbouring properties” (para. 43).
[65]
The question of liability for damage resulting from neighbourhood
disturbances came before the Court of Appeal again in Gourdeau v. Letellier
de St‑Just, [2002] R.J.Q. 1195. In that case, the owner of an
immovable had built two concrete walls that were supported by the wall of the
building next door. Over time, the presence of the concrete walls caused his
neighbour annoyances and use problems that gave rise to an action to demolish
them that was based on abuse of rights. In discussing the legal problems
caused by the construction of the walls, Thibault J.A., writing for the
majority of the Court of Appeal, accepted a theory of liability based on the
extent of the annoyances suffered rather than on proof of fault
(para. 44).
[66]
In support of that conclusion, Thibault J.A. relied, inter alia,
on the wording of art. 976 C.C.Q., which [translation] “does not suggest that it applies only where
fault is demonstrated” (para. 39). She added that the source of
art. 976 C.C.Q. [translation]
“seems to lie in a balance between the use of one property and the use of
neighbouring properties”, and she referred to the principles laid down in Katz
(paras. 40‑41). Turning to the case before her, Thibault J.A.
found that the owners — whose predecessor in title had built the walls — were
liable because the work, although lawful, had caused abnormal annoyances for
the neighbours:
[translation] In the
absence of a servitude of view in favour of the appellants’ immovable, the
respondent’s predecessor in title had the right, and a very legitimate one at
that, to protect his privacy. But the chosen method far exceeded what was
normal and acceptable. In light of the objective being pursued, the height of
the walls was disproportionate and excessive, and the configuration of the
walls was totally unacceptable. In exercising the right to privacy, it was
necessary to respect the neighbours’ right to have access to their property and
to enjoy, not a right of view, but the benefits of air and light.
It is precisely in such situations that the rules of
good neighbourliness must apply. Competing rights come into conflict, but no
one has to suffer abnormal annoyances resulting from a neighbour’s excessive
acts. [paras. 47‑48]
[67]
Thus, in Gourdeau, the Court of Appeal explicitly accepted
an interpretation of art. 976 C.C.Q. based on the extent of the
annoyances suffered rather than on an assessment of the owner’s conduct.
(c) Quebec Commentators
and No‑Fault Liability in Respect of Neighbourhood Disturbances
[68]
Most Quebec commentators seem to favour the theory of no‑fault
liability in respect of neighbourhood disturbances. For example,
Professor Lafond agrees that an action relating to neighbourhood disturbances
lies even where there is no proof of fault, malice or excessive conduct by an
owner of land. In his view, proof of abnormal or intolerable annoyances
suffered by a neighbour will be enough to justify such an action (Lafond, at
p. 404; contra: C. Masse, “Civil Liability”, in Reform of
the Civil Code (1993), vol. 2‑B, at pp. 13‑14).
According to A. Popovici, the determining factor is the result of
the owner’s act (that is, the abnormal disturbance or excessive annoyance)
rather than the owner’s conduct (“La poule et l’homme: sur
l’article 976 C.c.Q.” (1997), 99 R. du N. 214, at
p. 221).
[69]
Baudouin and Deslauriers point out that art. 976 C.C.Q.
does not explicitly refer either to intent to injure or to excessive and
unreasonable exercise of the right of ownership. In their opinion,
art. 976 C.C.Q. confirms the line of cases in which liability was
recognized as being based on the existence of abnormal neighbourhood annoyances
rather than on proof of fault (p. 202).
[70]
However, noting that there is disagreement on this point,
Baudouin and Deslauriers associate liability in this area with fault‑based
liability. Where an excessive annoyance (and thus an injury) exists, fault can
be presumed. According to these authors, since art. 1457 C.C.Q.
makes [translation] “breaking the
law a civil fault” and art. 976 C.C.Q. sets out [translation] “an objective legislative
standard in this regard” (at p. 202), an owner will necessarily be liable
for abnormal annoyances:
[translation] The
controversy over whether fault is necessary may thus be more apparent than
real; fault exists once excess does, and the recognition of an injury gives
rise to a presumption of fault. [p. 203]
[71]
With respect, we are not convinced that relying on the concept of
presumed fault is helpful. The assessment of fault is based on the way a
reasonable, prudent and diligent person would behave in objectively similar
circumstances. By presuming fault on an owner’s part solely because his
or her neighbour has suffered excessive annoyances, the analysis confuses an
examination of conduct (whether the owner acted as a reasonable, prudent
and diligent owner) with an examination of the result (whether the
neighbour suffered excessive annoyances). Finally, it is contradictory to
conclude that for an owner to cause abnormal annoyances for a neighbour amounts
to fault after finding that the owner did not, in actual fact, commit any fault
(Lafond, at p. 406, and Popovici, at p. 221). A finding of abnormal
annoyances is therefore not enough to establish that a fault has been
committed.
(d) Summary of the
Legislative History, of the Case Law, and of Commentaries on Art. 976
C.C.Q.
[72]
Although the drafts prepared by the Civil Code Revision Office
proposed that an article on neighbourhood relations be included in the book on
obligations, the legislature ultimately decided to put art. 976 C.C.Q.
in the book on property. The decision to do so is important to the
interpretation and application of this provision. In this regard, this Court
recently noted that “[t]he organization of rules is an essential feature of
codification” (Dell Computer Corp. v. Union des consommateurs,
[2007] 2 S.C.R. 801, 2007 SCC 34, at para. 14; see also para. 15).
It might be thought that the inclusion of the provision on neighbourhood
relations in the book on property confirms that the legislature intended to
separate neighbourhood relations from the general rules on obligations and
those on civil liability. On this point, we agree with Thibault J.A., who
explained in Gourdeau why, owing to the location of art. 976 in the
Code, this provision relates more to the right of ownership than to the general
rules of civil liability:
[translation]
[A]rticle 976 C.C.Q. is found under Title Two, Ownership
(arts. 947 to 1008), and is the general provision of Chapter III, Special
rules on the ownership of immovables (arts. 976 to 1008), in which the
legislature has grouped together various limits or restrictions on the right of
ownership. This is the chapter that contains the old servitudes “arising from
the position of the property or established by law”. The word “servitude” of
course refers to a charge imposed on one property for the benefit of another.
This suggests that the legislature intended to dissociate these limits from the
rules of civil liability and attach them instead to a rule creating a real
right that, in itself, is unrelated to the concept of fault. The source of the
right established in this article seems to lie in the balance between the use
of one property and the use of neighbouring properties, and the right therefore
resembles a legal servitude that results from the human environment of a given
property. [para. 40]
[73]
Next, it must be remembered that the actual words of
art. 976 C.C.Q. do not require evidence of wrongful conduct to
establish the liability of an owner who has caused excessive neighbourhood
annoyances (see, inter alia, Gourdeau, at para. 39;
Baudouin and Deslauriers, at p. 202). Moreover, the commentaries of the
Civil Code Revision Office and the Minister of Justice support a conclusion
that the legislature’s intention was not to limit actions relating to
neighbourhood disturbances to cases involving the wrongful exercise of a right.
[74]
In addition, art. 976 C.C.Q. is related to other
provisions that appear to be based on the same principles regarding the
exercise of rights of ownership. For example, arts. 988 and 991 C.C.Q.
— which govern the rights and obligations of neighbours — support the argument
that an owner can be found liable even though he or she has committed no fault
(Lafond, at p. 455). These provisions focus on the result of an act, not
on an owner’s conduct.
[75]
In short, although they do not rule out the possibility of
actions based on the usual principles of civil liability, the legislative
history, the case law and academic commentaries favour the recognition of a
scheme of civil liability based on the existence of abnormal neighbourhood
disturbances that does not require proven or presumed fault. Such a scheme is
also consistent with the approaches taken in Canadian common law and in French
civil law, and with general policy considerations.
(4) Comparative Review of
Canadian Common Law and French Civil Law
[76]
At this stage in our analysis of liability in respect of
neighbourhood disturbances, we believe it will be helpful to consider how
certain other legal systems approach the same kinds of problems. We will
therefore briefly review the solutions adopted in Canadian common law and
French civil law.
[77]
At common law, nuisance is a field of liability that focuses on
the harm suffered rather than on prohibited conduct (A. M. Linden and
B. Feldthusen, Canadian Tort Law (8th ed. 2006), at
p. 559; L. N. Klar, Tort Law (2nd ed. 1996), at
p. 535). Nuisance is defined as unreasonable interference with the use of
land (Linden and Feldthusen, at p. 559; Klar, at p. 535). Whether
the interference results from intentional, negligent or non‑faulty
conduct is of no consequence provided that the harm can be characterized as a
nuisance (Linden and Feldthusen, at p. 559). The interference must be
intolerable to an ordinary person (p. 568). This is 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 (p. 569). The interference must be substantial,
which means that compensation will not be awarded for trivial annoyances
(Linden and Feldthusen, at p. 569; Klar, at p. 536).
[78]
In France, the Court of Cassation accepts as a principle of law
that [translation] “no one may
cause an abnormal neighbourhood disturbance to another” (J. Carbonnier, Droit
civil (2004), vol. II, at p. 1785; P. Malinvaud, Droit
des obligations (8th ed. 2003), at p. 404; Viney and Jourdain, at
pp. 1069‑70). This principle is not based on art. 1382 of the
French Civil Code (Malinvaud, at p. 404; Viney and Jourdain, at
p. 1069). Liability for damage resulting from abnormal neighbourhood
disturbances is thus independent of fault, and a finding of excessive injury or
abnormal disturbance is all that is needed to trigger it (Viney and Jourdain,
at pp. 1069 and 1079). However, trivial annoyances caused by relations
between neighbours will not trigger liability (Starck, Roland and Boyer, at
p. 169).
[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.
(5) General Policy
Considerations
[80]
Finally, it must be mentioned that the acceptance of no‑fault
liability furthers environmental protection objectives. The Minister stressed
the importance of the environment and the quality of life in his commentaries
on the chapter concerning the ownership of immovables (Commentaires du
ministre de la Justice, vol. I, at p. 570). 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:
To encourage sustainable development, that principle
assigns polluters the responsibility for remedying contamination for which they
are responsible and imposes on them the direct and immediate costs of
pollution. At the same time, polluters are asked to pay more attention to the
need to protect ecosystems in the course of their economic activities.
[para. 24]
(6) Rejection of Real
Liability
[81]
At this point, we must explain why it is necessary to reject the
theory of real liability adopted by the Court of Appeal. According to this
theory, which was not discussed or contemplated in the documented preparatory
work for the Civil Code, the obligation not to injure one’s neighbours must be
treated as a charge on every immovable in favour of neighbouring lands, and the
rights and obligations associated with good neighbourliness are dependent on
land ownership:
[translation] Since only
a person who has a right of ownership has an obligation of good
neighbourliness, the obligation becomes a charge for that person, that is, a
real obligation, since it imposes certain limits on the exercise of his or her
right.
(L. Laflamme, “Les rapports de voisinage expliqués
par l’obligation propter rem”, in S. Normand, ed., Mélanges
offerts au professeur François Frenette: Études portant sur le droit
patrimonial (2006), 229, at pp. 233‑34)
According to the
theory of real liability, the obligation not to impose abnormal annoyances on a
neighbour is inherent in the right of ownership. As soon as the limit of
“normal” annoyances is exceeded, the neighbouring owner can set up his or her
right against the owner who is at fault by bringing an immovable real action to
put an end to the disturbance. As for claims for compensation of a personal
nature, the Court of Appeal suggested that they should be governed by the
traditional rules of civil liability, which require proof of wrongful conduct
by the neighbouring owner (para. 175).
[82]
The approach adopted by the Court of Appeal raises several
problems. The fact remains that, in principle, as Professor Lafond points
out, behind any real obligation is a [translation]
“person who is the debtor of the charge” and must compensate a neighbour who
suffers excessive annoyances (Lafond, at p. 455; see also Popovici, at
p. 225). Thus, the remedy under art. 976 C.C.Q. remains first
and foremost a claim that a person (and not land) has against another person,
as the Court of Appeal held in Gourdeau in allowing the action for
demolition brought by the appellants, who were the owners of the neighbouring
property. Furthermore, the Court of Appeal’s approach would significantly
restrict and limit the scope of art. 976 C.C.Q. Under this
approach, only an immovable real action would be possible even though a person,
and not land, actually suffers the annoyances and claims compensation.
[83]
The Court of Appeal’s approach would also mean that a remedy
under art. 976 C.C.Q. would not be available to lessees or
occupants, since they would not be able to claim to have a real right. Yet the
courts have already found that lessees, too, may benefit from this scheme even
though they do not have such a right. One author points out that no court has
yet held an action under art. 976 C.C.Q. to be inadmissible [translation] “on the basis that it was
brought by someone other than the holder of a right of ownership” (Laflamme, at
p. 232). Indeed, it seems incongruous to tie the right to enjoy a
neighbourhood without excessive disturbances solely to status as an owner even
though the damage is suffered by the plaintiff, not the plaintiff’s property.
On that basis, the Superior Court has held that the term “neighbour” refers not
only to the holder of a real right in land, but also to any person who
exercises a right to enjoy or use land (St‑Pierre v. Daigle,
[2007] Q.J. No. 1275 (QL), 2007 QCCS 705, at para. 19;
Coalition pour la protection de l’environnement du parc linéaire “Petit
Train du Nord” v. Laurentides (Municipalité régionale de Comté des), [2005]
R.J.Q. 116, at para. 100, main appeal and incidental appeal
dismissed on motions, [2005] Q.J. No. 9042 (QL), 2005 QCCA 664).
[84]
Moreover, the narrow approach adopted by the Court of Appeal
would make it difficult, if not impossible, to institute class actions in
situations where art. 976 C.C.Q. applies. In addition to
limiting this provision to purely real rights, the Court of Appeal used this
characterization to conclude that class actions are precluded because, in its
opinion, the class action procedure is reserved exclusively for the exercise of
rights belonging to persons (C.A., at para. 178; see also the criticisms
by Lafond, at pp. 454‑55). This position contradicts a number of
judgments in which the courts have authorized class actions where the plaintiff
members held real rights and were claiming damages (K. Delaney‑Beausoleil,
“Livre IX: Le recours collectif”, in D. Ferland and B. Émery,
eds., Précis de procédure civile du Québec (4th ed. 2003),
vol. 2, 875, at p. 906; see Dicaire v. Chambly (Ville), [2000]
Q.J. No. 884 (QL) (C.A.); Bouchard v. Corp. Stone Consolidated,
[1997] Q.J. No. 4574 (QL) (Sup. Ct.); and Arseneault v. Société
immobilière du Québec, [1997] Q.J. No. 4570 (QL) (Sup. Ct.)).
[85]
We will not comment further on the theory of real liability,
which appears to us to unduly limit the scope of art. 976 C.C.Q.
and the possibility of instituting a class action.
(7) Conclusion
[86]
Even though it appears to be absolute, the right of ownership has
limits. Article 976 C.C.Q. establishes one such limit in
prohibiting owners of land from forcing their neighbours to suffer abnormal or
excessive annoyances. This limit relates to the result of the owner’s
act rather than to the owner’s conduct. It can therefore be said that
in Quebec civil law, there is, in respect of neighbourhood disturbances, a no‑fault
liability regime based on art. 976 C.C.Q. which does not require
recourse to the concept of abuse of rights or to the general rules of civil
liability. With this form of liability, a fair balance is struck between the
rights of owners or occupants of neighbouring lands.
E. Application of the
Principles of Civil Liability to the Facts of This Case
(1) Review of the
Superior Court’s Findings
[87]
The question of the effect of environmental standards or
standards for operating the cement plant and their impact on SLC’s civil
liability arose in the Superior Court. There were several environmental
standards that applied to SLC, and all of them limited its right of ownership.
First of all, SLC had to comply with the Regulation respecting the quality
of the atmosphere, R.R.Q. 1981, c. Q‑2, r. 20, which
establishes opacity standards to be met by a business when discharging
contaminants into the atmosphere (ss. 10 and 11), and standards for the
emission of particulate matters into the atmosphere by a cement plant
(s. 42). As well, the Regulation respecting the application of the
Environment Quality Act, (1993) 125 G.O. II, 5997 (“RAEQA”),
provides that “[a]ny equipment used or installed for the purpose of reducing
the emission . . . of contaminants into the environment shall at all
times be in good working order and shall function optimally during production
hours” (s. 12). SLC was also subject to standards for blasting in quarries
(Regulation respecting pits and quarries, R.R.Q. 1981, c. Q‑2,
r. 2, s. 34). Finally, the SLC Special Act required it to
“use the best known means to eliminate dust and smoke”:
5. The corporation shall favour local labour
first and regional labour afterwards, save as regards administrative employees,
technicians and experts, and shall pay reasonable wages, procure suitable
working conditions, maintain hygienic and sanitary conditions conducive to
public health and safety and use the best known means to eliminate dust and
smoke.
[88]
SLC’s cement mills were equipped with bag filters.
According to the evidence, if a filter of this type is in good condition, the
air coming out of it will remain relatively clean, with no cloud of smoke (Sup.
Ct., at para. 241). The evidence also showed that the electrostatic
precipitators used with SLC’s equipment were efficient but fragile and that to
function properly, they required regular maintenance (para. 242).
[89]
The tests conducted on the chimneys of the kilns and clinker
coolers (the two main sources of particulate matter emissions) showed that, at
the time of the tests, the standards for emissions of particulate matters into
the atmosphere were being complied with. Although this did not prove that
these standards were always met at other times, Dutil J. noted that there
was no evidence on this point (para. 238).
[90]
Dutil J. nonetheless acknowledged that the evidence showed
that many incidents had occurred as of June 4, 1991. She referred to the
environmental incident reports completed at the plant between
February 6, 1992 and May 16, 1996 and to documents from the
Ministère de l’Environnement prepared between June 8, 1991 and
February 1, 1996, which contained notes taken by government officials
during telephone calls or meetings with SLC representatives or concerning
complaints received from citizens (paras. 244‑45). The judge also
noted that clouds of dust coming from hatches or windows on the east side of
the plant (where the cement mills were located) were visible on videotapes
recorded by a resident between 1992 and 1997, and SLC did not deny this
(para. 240). The videotapes also showed dust at the base of the chimney
for the kilns, which were equipped with electrostatic precipitators
(para. 242).
[91]
Although Dutil J. observed that there had been frequent
deposits of dust and flakes (para. 246), she stated that the evidence did
not make it possible to attribute them to a failure to maintain the plant’s
equipment (para. 255). Dutil J. noted that SLC had hired an
environmental manager, invested several million dollars on projects relating to
environmental protection, used the best dust control systems available for wet
process kilns (paras. 256‑58) and hired a maintenance team that was
responsible for keeping the equipment in good working order (para. 263).
She therefore refused to find fault on SLC’s part on the basis of a presumption
of fact:
[translation]
In the Court’s opinion, the plaintiffs have not shown that the defendant
committed faults by failing to comply with section 12 of the Regulation
respecting the application of the Environment Quality Act, which concerns
the maintenance of its equipment. To find the defendant liable on the basis of
presumptions of fact, the presumptions must be serious, precise and
concordant. [para. 252]
[92]
Dutil J. added that SLC had fulfilled its obligation under
s. 5 of the SLC Special Act to use the best known means to
eliminate dust and smoke (para. 264).
(2) Absence of Fault, Including Fault Related to
the Violation of Statutory Obligations
[93]
In this context, the Superior Court had to consider whether SLC
had committed a civil fault in relation to its statutory obligations. In
analysing s. 12 RAEQA from the standpoint of a failure by SLC to
maintain its equipment, Dutil J. was attempting, without expressly saying
so, to determine whether SLC had taken reasonable precautions to ensure that
its equipment was in good working order at all times and was functioning
optimally, and whether its conduct in this regard may have constituted
wrongdoing that would justify a finding of civil fault.
[94]
As we mentioned above, Dutil J. appears to have concluded
that the respondents had failed to prove fault and that she could not draw
presumptions of fact about the appellant’s liability from the evidence. Her
interpretation of the facts is reasonable, and her analysis of the law is
correct. The respondents have not shown that the Superior Court judge made an
error in this regard that justified the Court of Appeal intervening to reverse
her decision. Section 12 RAEQA does inform the interpretation of
the applicable standard of conduct, but without a finding that this standard
has not been met, we must confine ourselves to no‑fault liability in
respect of neighbourhood disturbances.
(3) Finding of No‑Fault
Liability Under Art. 976 C.C.Q.
[95]
After hearing the evidence, Dutil J. said she was convinced
that, even though SLC had operated its plant in compliance with the applicable
standards, the representatives and members of the group had suffered abnormal
annoyances that were beyond the limit of tolerance neighbours owe each other
according to the nature or location of their land (para. 304). First,
clinker dust or cement dust had caused the most serious annoyances in all the
zones she had identified, namely the red, blue, yellow and purple zones.
Because of the dust deposits, many residents had to wash their cars, windows
and garden furniture frequently and could not enjoy their property. This led
to considerable annoyances associated with maintenance and painting and with
the use of outdoor spaces (paras. 305 et seq.). As well, sulphur,
smoke and cement odours caused abnormal annoyances in all zones except the
purple zone (paras. 323 et seq.). Finally, the noise from the
cement plant’s operation caused annoyances that were beyond the limit of
tolerance in the red zone and, to a lesser extent, in the blue zone
(paras. 328 et seq.). In view of Dutil J.’s findings of fact, it
seems clear to us that the group members suffered abnormal annoyances that varied
in their intensity but were beyond the limit of tolerance neighbours owe each
other. The trial judge was therefore justified in finding SLC liable under
art. 976 C.C.Q.
[96]
We note in closing that Dutil J. did not misinterpret the
word “neighbour” as used in art. 976 C.C.Q. when she concluded that
all members living in the neighbourhoods adjacent to the plant were neighbours
of the plant for the purposes of that provision on the basis that they lived
close enough to it (paras. 354‑59). Article 976 C.C.Q.
does not define the scope of the concept of “neighbour”. Obviously, the
plaintiff must prove a certain geographic proximity between the annoyance and
its source. However, the word must be construed liberally. The leading case
on this point, which dates back to 1975, is Carey Canadian Mines Ltd. v.
Plante, [1975] C.A. 893. In that case, the plaintiff claimed damages from
Carey Canadian Mines after a river crossing his land became polluted; the
evidence showed that the pollution came from an asbestos deposit two miles
away. The Quebec Court of Appeal confirmed that the obligation extended to the
entire neighbourhood and that the properties concerned did not have to be
adjacent (p. 899; see also Théâtre du Bois de Coulonge inc. v. Société
nationale des québécois et des québécoises de la Capitale inc., [1993]
R.R.A. 41 (Sup. Ct.), at pp. 42‑43; Ouimette v. Canada (Procureur
général), [2002] R.J.Q. 1228 (C.A.), at p. 1244). The conditions for
finding SLC liable under art. 976 C.C.Q. were therefore met.
However, SLC has raised other defences to avoid or limit its civil liability
that must now be considered.
F. SLC Special Act and
the Immunity Argument
[97]
First, SLC argues that as a result of the SLC Special Act
passed by the Quebec legislature in 1952 to govern its activities, it has
immunity from actions in damages relating to its industrial activities. In its
view, this immunity results from the rule that a person or a corporation may
not be held liable in nuisance if the activity in question is authorized by
statute and it is proved that the nuisance is the inevitable result or
consequence of exercising that authority. According to SLC, although this rule
derives from English law (Allen v. Gulf Oil Refining Ltd., [1981]
1 All E.R. 353 (H.L.); Manchester Corporation v. Farnworth, [1930]
A.C. 171 (H.L.); Hammersmith and City Railway Co. v. Brand (1869), L.R.
4 H.L. 171), it is recognized in Canadian common law (Ryan v. Victoria
(City), [1999] 1 S.C.R. 201; Tock v. St. John’s Metropolitan Area
Board, [1989] 2 S.C.R. 1181) and is also applicable in Quebec law (Canadian
Pacific Railway Co. v. Roy, [1902] A.C. 220 (P.C.); Ouimette; Laforest
v. Ciments du St‑Laurent, [1974] C.S. 289).
[98]
The statute relied on by SLC provides no basis for this defence.
Although the SLC Special Act authorized the operation of the plant while
requiring that the best means available be used, it in no way exempted SLC from
the application of the ordinary law. When the legislature excludes the
application of the ordinary law, it generally does so expressly. For example,
the Act respecting industrial accidents and occupational diseases,
R.S.Q., c. A‑3.001, provides that “[n]o worker who has suffered an
employment injury may institute a civil liability action against his employer
by reason of his employment injury” (s. 438). Likewise, with regard to
bodily injury, the Automobile Insurance Act, R.S.Q., c. A‑25,
provides that “[c]ompensation under this title stands in lieu of all rights and
remedies by reason of bodily injury and no action in that respect shall be
admitted before any court of justice” (s. 83.57). There is no provision
in the SLC Special Act precise enough to justify a conclusion that the
law of civil liability has been excluded for all consequences of the plant’s
activities.
G. Prescription and
Future Damage
[99]
SLC also makes an argument based on prescription. According to
this argument, prescription was not interrupted for damage relating to events
subsequent to the judgment authorizing the class action, and the action is thus
prescribed as regards such events. It must therefore be determined whether events
subsequent to the filing of the application for authorization to institute a
class action are relevant to this case, and whether the representatives can be
compensated for damage suffered after that date.
[100]
Article 2908 C.C.Q. restates the principle set out in
art. 2233a C.C.L.C. that an application for leave to bring a
class action suspends prescription until the judgment granting the motion is no
longer susceptible of appeal:
2908. A motion for leave to bring a class action suspends
prescription in favour of all the members of the group for whose benefit it is
made or, as the case may be, in favour of the group described in the judgment
granting the motion.
The suspension lasts until the motion is dismissed or annulled or until
the judgment granting the motion is set aside; . . .
In the case of a judgment, however, prescription runs again only when
the judgment is no longer susceptible of appeal.
(See Commentaires du ministre de la Justice,
vol. II, at pp. 1824-25.)
[101]
In the instant case, the action was authorized on
March 31, 1994 by Thibault J. Prescription was therefore suspended
between the date of the application, June 4, 1993, and the date when
Thibault J.’s judgment was no longer susceptible of appeal, namely
30 days after March 31, 1994 (art. 494 C.C.P.).
Prescription then ran again until the action was filed on
August 1, 1994. The Civil Code of Québec provides that the
filing of a judicial demand interrupts prescription:
2892. The filing of a judicial demand before
the expiry of the prescriptive period constitutes a civil interruption,
provided the demand is served on the person to be prevented from prescribing
not later than sixty days following the expiry of the prescriptive period.
[102]
Article 2896 C.C.Q. adds that the interruption
continues until judgment and has effect in respect of any right arising from
the same source:
2896. An interruption resulting from a judicial demand
continues until the judgment acquires the authority of a final judgment (res
judicata) or, as the case may be, until a transaction is agreed between the
parties.
The interruption has effect with regard to all the
parties in respect of any right arising from the same source.
The question is
therefore whether the damage suffered by the representatives after the filing
of the judicial demand in August 1994 arose from the “same source”. The
analysis on this point will make it possible to decide whether the
representatives can be compensated not only for neighbourhood disturbances that
occurred between June 4, 1991 and the date of filing of the demand,
June 4, 1993, but also for damage suffered up to the time SLC ceased
operations in 1997.
[103]
In this case, the courts below correctly adopted a liberal
interpretation of the words “same source”. Dutil J. held that the Civil
Code of Québec does not limit the general scope of the word “source” in
art. 2896 C.C.Q. (para. 223) and concluded that it is possible
to claim compensation for damage that has the same cause but is spread out over
time. Moreover, in her judgment authorizing the class action, Thibault J.
did not limit the members’ claims to the period starting on
June 4, 1991 and ending with the filing of the motion for
authorization on June 4, 1993. The Court of Appeal confirmed the
validity of Dutil J.’s liberal interpretation of the expression “same
source” (paras. 224‑25).
[104]
The Court of Appeal had also concluded in ABB Inc. v.
Domtar Inc., [2005] R.J.Q. 2267, 2005 QCCA 733, that the word “source”
must be interpreted broadly rather than narrowly. The following passage shows
that that court’s decisions have been consistent. The provision’s purpose is
to maintain, not to extinguish, rights associated with proceedings that are
under way:
[translation] In Québec
(Procureur général) v. Armand Sicotte & Fils Ltée [[1987] R.R.A. 290,
at p. 294], this court stated:
Article 2224
C.C.L.C. provides that the filing of a judicial demand creates a civil
interruption that is effective for every party to the action for any right and
recourse arising from the same source as the demand. . . .
Later, in D’Anjou v. Thériault [C.A., Montréal, 200‑09‑002267‑984,
2001‑05‑01], this court held that:
[44] This conclusion is made all the more necessary by the need to bear
in mind the legislature’s purpose in making successive amendments to
art. 2224 C.C.L.C. In my opinion, that purpose was a liberal one, namely
to ensure that rights closely connected with legal proceedings already under
way would be maintained rather than extinguished. Naturally, this objective
required a flexible interpretation of the criterion of identity of sources,
which this Court adopted, inter alia, in Banque de Nouvelle‑Écosse
v. Exarhos . . . . [Emphasis deleted; paras. 96‑97.]
[105]
Baudouin and Deslauriers also discuss the concept of “continuing
damage and its consequences for prescription”. This type of damage involves an
injury that recurs or persists over time. In such a case, it makes sense to
allow the victim to bring a single action to put a permanent end to the damage
rather than requiring him or her to bring a series of actions.
[translation]
1‑1422 — Continuing damage — This is a single injury that
persists rather than occurring just once, generally because the fault of the
person who causes it is also spread over time. One example is a polluter whose
conduct causes the victim an injury that is renewed every day. . . .
Since there are several wrongful acts as well as simultaneous recurring damage
that is related to those acts, it makes sense to accept, as the courts do, that
prescription starts running each day. . . . The plaintiff thus has
the option of either suing once and for all and seeking an end to the injury or
compensation for future damage, or periodically renewing his or her judicial
demands. [pp. 1200‑1201]
Although
Baudouin and Deslauriers are referring to a more typical situation involving
extracontractual liability (where fault has been proved), their analysis
relates mainly to the question of damage. It therefore applies even in the
present context where the defendant’s liability is based on the extent of the annoyances
suffered by the victims rather than on fault.
[106]
Here, the “source” of the continuing damage suffered by the
representatives, namely the acts that generated their right of action, remains
the same: activities of SLC that caused excessive neighbourhood annoyances.
Since those activities continued until 1997, it would make no sense (in
addition to being impractical, as Dutil J. pointed out at para. 230)
to ask the group’s representatives to repeat their motion every three years for
each annoyance suffered. In conclusion, we agree with the courts below that
all events subsequent to the filing of the action were relevant, and in our
opinion, they did not err in law or in fact in this regard.
H. Appropriateness of
Using Average Amounts in Assessing Damages
[107]
SLC criticizes the method chosen by the courts below respecting
compensation: determining an “average” for each of the residential zones that
had been established rather than making an order requiring each resident to
prove his or her injury. The representatives contest the intervention of the
Court of Appeal, which reduced the compensation awarded by Dutil J. They
ask that the Superior Court’s conclusions on the quantum of damages be
restored.
[108]
A distinction must be drawn between evidence of similar
injury and the assessment of that injury. On the question of evidence,
this Court stated in Quebec (Public Curator) v. Syndicat national des
employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211, that “in
the context of an action in civil liability brought in the form of a class
action, the elements of fault, prejudice and causal connection must be
established in respect of the members of the group, by the normal evidentiary
rules” (para. 33). L’Heureux‑Dubé J., writing for the Court,
noted that the rules of proof by presumptions apply to class actions
(para. 39) and that presumptions of fact can be used to prove that a
similar injury has been suffered:
In my opinion,
Nichols J.A. correctly described the process followed by the trial judge
(at p. 2784):
[translation] When the
trial judge spoke of a “presumption of similarity”, he did not use a
presumption of law but rather looked at it as an objective toward which his
analysis of the evidence was leading. He never drew the conclusion that all
the patients had suffered the same prejudice because the representative of the
group had herself suffered discomfort. Rather, he sought to find an element
of damage common to everyone, and only after reviewing the evidence as a whole
did he find enough evidence to be able to infer that there were serious,
precise and concordant presumptions that all the patients had at least suffered
discomfort.
If we consider that no member of the group was capable here of
expressing himself or herself to describe the subjective prejudice he or she
felt, the necessary conclusion is that, in the circumstances, proof by
presumptions was the most appropriate method of proof for establishing the
existence of such prejudice.
I agree with Nichols J.A. on this point and I would add that the
trial judge did not rely solely on presumptions of fact, but also took into
account the evidence as a whole, including that of witnesses and expert
witnesses, in reaching his conclusions. [Emphasis added by L’Heureux-Dubé J.;
paras. 41‑42.]
Therefore, the
court can draw from the evidence a presumption of fact that the members of the
group have suffered a similar injury (J.‑C. Royer, La preuve
civile (3rd ed. 2003), at p. 649). It may also divide the group
into subgroups, each of them made up of members who have suffered a similar
injury.
[109]
At the hearing in the instant case, 62 witnesses residing in
the four zones described the annoyances they had suffered (Sup. Ct., at
paras. 23‑24). Relying on their testimony, Dutil J. found that
the evidence showed a form of injury that was common to all members of the
group, but that varied in intensity (para. 398). Dust emissions, odours
and noise from the plant had affected the residents of some zones less than
others. For this reason, Dutil J. divided the group members into four
zones to ensure that there was some basic injury common to the residents of
each zone. She thus ensured that there was a common injury in each zone.
[110]
It is true that in Hollick v. Toronto (City), [2001]
3 S.C.R. 158, 2001 SCC 68, this Court expressed the opinion that the class
action was not the preferable means of resolving the claims of the class
members. However, in that case, the Divisional Court had noted that “[e]ven if
one considers only the 150 persons who made complaints — those complaints
relate to different dates and different locations spread out over seven years
and 16 square miles” (para. 32). In the instant case, the
representatives provided detailed evidence of the injury they had suffered.
Dutil J. considered all that evidence and was able to infer from it that
the members in each zone had suffered similar injuries. Her analysis contains
no error warranting this Court’s intervention.
[111]
However, one aspect of Dutil J.’s decision is unusual: she
ordered that recovery be subject to an individual claims procedure but assessed
the amount to be awarded to each member using an average determined for each
zone. The procedure chosen for recovery should not be confused with the
assessment of injury. From a procedural standpoint, the trial judge must
decide whether “the claims of the members [will] be recovered collectively or
be the object of individual claims” (art. 1028 C.C.P.). Regardless
of whether recovery is collective or individual, each member will, in theory,
be compensated for “the amount of the loss he has sustained and the profit of
which he has been deprived” (art. 1611 C.C.Q.). This is because a
class action is only a “procedure which enables one member to sue
without a mandate on behalf of all the members” (art. 999(d) C.C.P.;
see Dell Computer, at paras. 105‑8). The nature of the
action itself remains unchanged. Thus, even in the context of an order for
collective recovery, the injury the trial judge must assess is, at first
glance, individual rather than common.
[112]
The provisions of the Code of Civil Procedure on
individual claims do not suggest that the trial judge may not decide the amount
to be awarded in respect of an individual injury (see arts. 1037 to 1040 C.C.P.).
Moreover, a judge who opts for collective recovery does so “if the evidence
produced enables the establishment with sufficient accuracy of the total
amount of the claims of the members; [the judge] then determines the amount
owed by the debtor even if the identity of each of the members or the exact
amount of their claims is not established” (art. 1031 C.C.P.).
This suggests that the total amount is based on an assessment of the sum of the
members’ individual injuries. Finally, the trial judge has considerable
discretion in making this assessment in the context of a class action
(arts. 1039 and 1045 C.C.P.; see also Thompson v. Masson, [2000]
R.J.D.T. 1548 (C.A.), at paras. 38‑40).
[113]
Professor Lafond makes the following comment about the trial
judge’s discretion:
[translation] In a class action, the
judge has a different role, as his or her participation continues until the
final judgment is executed. The collective or individual processing of claims
and the distribution of compensation constitute an essential step in the class
action and largely determine the effectiveness of the procedure. The
legislature has assigned responsibility for this to the judge, who turns into a
genuine administrator for purposes of the execution of his or her decision.
(Le recours collectif, le rôle du juge et sa
conception de la justice: impact et évolution (2006), at p. 189)
Thus, a trial
judge who, as in the case at bar, decides to proceed by way of individual
claims is not precluded from determining the amount to be awarded in respect of
an individual injury. This approach also simplifies the individual claims
procedure, since it will then be possible to limit what must be proved at that
stage.
[114]
The question that remains is whether it was appropriate for
Dutil J. to use average amounts to determine the compensation in this
case. It must be recognized that the annoyances suffered by victims of
environmental injury are difficult to assess. In Domfer,
4,000 residents of Ville‑Émard suffered damage and annoyances caused
mainly by dust, noise and odours from Domfer’s plants. Forget J.A.
rightly noted that it was difficult to put a dollar amount on the problems and
annoyances the residents had suffered (para. 162). In that case, too, the
Court of Appeal used average amounts and based the plaintiffs’ compensation on
the zones in which they resided, although its reasoning was grounded in fault‑based
liability (para. 164). Thus, the Court of Appeal’s approach was analogous
to the one taken by Dutil J. in the instant case.
[115]
An average amount was also used to determine compensation for
moral injury in St‑Ferdinand. In that case, the trial judge had
expressed the opinion that [translation]
“[w]here all members of the group have suffered the same kind of prejudice, the
prejudice can be assessed on the basis of an average without increasing the
debtor’s liability” ([1990] R.J.Q. 359, at p. 397). L’Heureux‑Dubé J.,
writing for this Court, noted that “because of the nature of the prejudice, the
quantum of moral damages cannot be determined exactly” (para. 85).
[116]
Given the trial judge’s discretion and the difficulty of
assessing environmental problems and annoyances, we consider Dutil J.’s
use of average amounts to have been reasonable and appropriate in the
circumstances. Moreover, SLC has not shown that its liability increased as a
result. There is no indication that the amount awarded by Dutil J. was
based on a wholly erroneous estimate of the injury (Andrews v. Grand &
Toy Alberta Ltd., [1978] 2 S.C.R. 229, at p. 235). We will therefore
allow the cross‑appeal and restore the Superior Court’s conclusions on
the assessment of damages (with the exception of para. 419, corrected by the
Court of Appeal with the respondents’ agreement), which the Court of Appeal
varied because of its findings concerning the bases for SLC’s liability.
[117]
Moreover, it is our view that the amount awarded by Dutil J.
to the owners for additional painting expenses should also be restored. In
light of the evidence before the court, we are not convinced that that
assessment was inconsistent with the latitude the trial judge is recognized to
have. Dutil J. gave a precise description of the additional painting
expenses incurred by Claude Cochrane, one of the representatives, who lived in
the red zone (paras. 57‑60). She subsequently noted that another
witness from the red zone had painted every year until he moved in 1994
(para. 78); that house exteriors had had to be repainted regularly in the
yellow zone (para. 94); that lessees in the purple zone had not referred
to painting in their testimony (para. 101); that two owners from the
purple zone had said they had to paint wooden window frames every two years
(para. 102); and that many witnesses had confirmed that after the plant
closed, they no longer had to paint every year or two (para. 313).
Dutil J. also distinguished environmental problems and annoyances from
injury in the form of painting expenses (paras. 312‑13).
[118]
The test to be applied by an appellate court before intervening
with respect to the quantum of damages is “very strict and gives preference to
the evaluation done by the trier of fact” (St‑Ferdinand (S.C.C.),
at para. 84). It is our opinion that SLC has not proved that
Dutil J. applied a wrong principle of law or that the amount she awarded
to the owners was based on a wholly erroneous estimate of the injury. That
amount should therefore be restored.
III. Disposition
[119]
For these reasons, we would dismiss the appeal and allow the
cross‑appeal, with costs throughout.
Appeal dismissed and cross‑appeal allowed, with costs.
Solicitors for the appellant/respondent on cross‑appeal: Ogilvy
Renault, Montréal.
Solicitor for the respondents/appellants on cross‑appeal: Jacques
Larochelle, Québec.
Solicitors for the interveners Friends of the Earth and Quebec
Environmental Law Centre: Lauzon Bélanger, Montréal;
uOttawa-Ecojustice Environmental Law Clinic, Ottawa.
Solicitors for the intervener Quebec Business Council on the
Environment: Davies Ward Phillips & Vineberg, Montréal.
Bastarache J. took no part in the judgment.