On November 20, the Supreme Court of Canada rendered its much anticipated judgment in St. Lawrence Cement Inc. v. Barrette, allowing a class action for neighborhood annoyances in connection with the operation of the cement plant.
This decision marks a turning point in environmental liability in Quebec because it endorses the controversial legal doctrine of civil liability without fault for abnormal neighborhood annoyances.
There now exist two regimes of civil liability in environmental matters in Quebec, the first being the traditional regime of civil liability based on fault (article 1457 of the Civil Code of Quebec (the "C.C.Q.")) and the second being an autonomous regime of civil liability for abnormal neighborhood annoyances "which does not require recourse to the concept of abuse of rights or to the general rules of civil liability" (article 976 C.C.Q.). Within this second regime, the liability of a person will be determined, not on the basis of his conduct, but rather with regard to the "result of the owner's act" upon his neighbors.
That being said, the Supreme Court established an important distinction between the notion of damage and that of "abnormal" neighborhood annoyances. In effect, the Supreme Court decided, with regard to the general regime of civil liability based on fault, that "an owner who commits a fault may be held liable for damage even if the damage does not reach the level of abnormal annoyances". Thus, according to the Supreme Court, not all damages will engage liability without fault because they may not rise to the level of abnormal annoyances. In other words, the simple existence of damage is not sufficient in and of itself for a plaintiff to successfully invoke the regime of liability without fault.
It is desirable that the notion of abnormal annoyance be clarified as quickly and as clearly as possible in order to favour foreseeability in juridical relations. It will be useful in this regard to obtain guidance from the common law tort of nuisance which is, according to the Supreme Court, analogous to the cause of action set out by article 976 C.C.Q. Under the common law tort of nuisance, the unreasonable character of an annoyance is examined in light of "factors such as the nature, severity and duration of the interference, the character of the neighborhood, the sensitivity of the plaintiff and the utility of the activity".
Moreover, with respect to the regime of civil liability with fault, the Supreme Court endorsed the observations of the Quebec Business Council on the Environment, represented by Davies (a team comprised of Guy Du Pont, Marc-André Boutin and Brandon Wiener), and clarified the important question of the interrelationship between the violation of a legislative norm and the existence of a civil fault. Specifically, the Supreme Court rejected the theory according to which the violation of a legislative norm constitutes in and of itself a civil fault and decided that "an offense 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 as set out in art. 1457 C.C.Q.". Thus, it will not be sufficient, in the context of an action based upon an alleged fault in an environmental matter, to establish liability solely by invoking the failure of a company to conform to obligations imposed upon it, for example, by a law such as the Environment Quality Act. The plaintiff will in addition have the burden to establish, given "the specific circumstances of each disputed act or each instance of disputed conduct", a civil fault.
Finally, the Supreme Court endorsed the method of evaluation of damages by way of average in class action cases.
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