Canada: The Supreme Court Clarifies The Application Of The St. Lawrence Cement Inc. v. Barrette Decision

Last Updated: April 16 2013
Article by Michel Gagné

Most Read Contributor in Canada, September 2018

On March 7, 2013, the Supreme Court of Canada (SCC) rendered a decision in which it clarified the application of St. Lawrence Cement Inc. v. Barrette1(St. Lawrence Cement), a decision that had recognized a strict liability regime for neighbourhood disturbances in Québec, a liability regime similar to that of common law nuisance. Such lawsuits can be instituted by class action which may have major consequences for corporate defendants.

In Antrim Truck Centre Ltd. v. Ontario (Transportation)2(Antrim), the SCC clarified the criteria for nuisance in a case involving a claim for injurious affection under the Expropriation Act3 of Ontario.

The Facts of the Antrim Case

The appellant in this case was the owner of a lot on Highway 17 in Ontario on which it operated a truck stop with a restaurant and a gas station. It enjoyed the patronage of drivers travelling along the highway. In 2004, the Ministry of Transportation of Ontario opened a new section of Highway 417. The construction of the 417 Highway significantly altered the conditions from which the appellant benefited, as the motorists on the new stretch of highway had no direct access to the truck stop. This situation led the appellant to close his truck stop, causing him damages for loss of market value of property and loss of business.

The SCC recognized that such circumstances may give rise to compensation for the adverse effect under the Expropriation Act (Act) of Ontario. To be entitled to compensation, the appellant has to meet three statutory requirements, namely:

1. the damage must result from action taken under statutory authority;

2. the action would give rise to liability but for that statutory authority; and

3. the damage must result from the construction and not the use of the works.

When these three conditions are met, the Act entitles the plaintiff to compensation for such reduction in the market value of the land attributable to the infringement of his rights, and such personal and business damages.4

The first and third conditions were clearly met in this case, and the SCC had to determine whether the second requirement was met. The SCC ruled in favour of the appellant and decided that the second requirement was met, confirming the decision of the Ontario Municipal Board to grant compensation and to reverse the decision of the Ontario Court of Appeal. The issue addressed by the SCC was whether the appellant could have, under the law of private nuisance, obtained damages if the construction of the highway was not made under statutory authority. The SCC gave an affirmative answer to this question because of the particular facts of the case. As part of its judgment, it went through a comprehensive review of the rules relating to nuisance.

The Clarifications Brought to the Principles Laid Out in St. LawrenceCement

The recognition by the SCC in 2008 of a strict liability regime for neighbourhood disturbances had raised concerns from industry. In effect, the SCC had recognized that a business could be held liable for having caused abnormal disturbances to its neighbours without having committed a fault. The circumstances giving rise to the recognition of abnormal disturbances were not elaborated upon in detail by the SCC in its decision in St. Lawrence Cement. Such a principle of no-fault liability raised legitimate concerns with regard to the predictability of the law by businesses whose operations cause some inconvenience to neighbours and were concerned about ensuring that their business activities did not incur their liability.

In Antrim, the SCC made some clarifications that could turn out to be very useful in the application of the liability regime applicable to common law nuisance and neighbourhood disturbances in civil law.

The SCC elaborated upon the constitutive elements of a nuisance claim in referring to the St. Lawrence Cement decision as its most recent analysis of the concept of nuisance. It specified in Antrim that the elements of a nuisance claim are based on a two-pronged test. Such a claim must be based on an impairment that is both a substantial and an unreasonable interference with the occupation or enjoyment of land by its owner. A substantial interference is one that is non-trivial. The SCC stated that if this test is met, the focus is then on whether the non-trivial interference was also unreasonable in light of all the circumstances.

The SCC stated that the threshold of substantial impairment highlights the importance of the fact that not all interferences, however slight or trivial, would give rise to an action in nuisance; certain interferences constitute the normal "give and take" expected of everyone as part of normal life in society. The SCC recalled that, in applying this threshold of substantial impairment, minor inconveniences will not be compensated. The SCC stated that only interferences that significantly alter the nature of the complainant's property or interfere, to a significant extent, with the actual use are sufficient to ground a claim in nuisance. The SCC also considered that substantial impairment caused to a landowner is one that is more than a slight annoyance or a trifling interference. Claims based on the prompting of excessive delicacy and fastidiousness do not meet the threshold of substantial impairment.

The SCC indicated that nuisance may take a variety of forms and may include not only actual physical damage to land, but also interference with the health, comfort or convenience of the owner or occupier.

Then, the SCC stated how the reasonableness test must be applied to the interference, particularly in the context where it is caused by projects that further the public good. The SCC noted that, in all nuisance cases, the reasonableness of the interference must be assessed in light of all of the relevant circumstances. The SCC suggested that this balancing exercise focus on whether the interference is such that it would be unreasonable in all of the circumstances to require the claimant to suffer it without compensation. The gravity of the harm, on the one hand, and the utility of the defendant's conduct, on the other hand, must be balanced. To assess the gravity of the harm, the character of the neighborhood, the sensitivity of the plaintiff, as well as the frequency and duration of the interference are relevant factors to be taken into account.

Even if the analysis of reasonableness of the interference is focused on the nature and extent of the interference with the plaintiff's property rather than the defendant's conduct, the latter is not an irrelevant consideration. Evidence that the defendant took all possible precaution to avoid harm may have a bearing on whether he or she subjected the plaintiff to an unreasonable interference. The fact that work is carried out with reasonable care and due diligence for the citizens affected is part of the analysis of the reasonableness of the interference. The SCC noted that there is no doubt that everyone must put up with a certain amount of temporary disruption caused by essential construction. Prolonged interferences are more likely to give rise to compensation than temporary interferences.

The Application to Québec of the Right to Compensation in a Similar Context to the Antrim Case

The right to be compensated in a similar context to that which gave rise to the Antrim case is less clear in Québec, because unlike Ontarian law, the Québec Expropriation Act5 is silent on the matter. The conditions giving rise to compensation for injurious affection of a work of public utility were integrated into the Ontario legislation and were derived from the rules laid down by authors and case law on the subject. Thus, the right to compensation in similar circumstances had already been recognized by the SCC in a 19626 decision on a case from Québec. We can therefore assume that these principles would probably still be applicable today in Québec, despite the fact that they are not explicitly codified in Québec's Expropriation Act.


When the SCC recognized a strict liability regime for neighbourhood disturbances in the St. Lawrence Cement case, many feared that this would open the door to compensation for the slightest inconveniences imposed on neighbours of industrial facilities. Many also feared that this no-fault liability regime would prevent businesses from knowing with a reasonable degree of certainty that their operations respecting all applicable standards and laws and would not incur any liability.

The Antrim case provides useful clarifications with regard to how the principle of strict liability recognized in St. Lawrence Cement should be applied; these clarifications are positive for businesses. Indeed, minor and slight inconveniences to neighbours are expected to be tolerated and not give rise to compensation so long as they do not become substantial. It is also reassuring that the SCC clearly recognized that the defendant's conduct and compliance with applicable standards remain relevant in cases of neighbourhood disturbances. We can now safely assume that St. Lawrence Cement will not have consequences as adverse to industry as many thought in 2008.

To view original article, please click here


1 (2008) 3 S.C.R. 392.
2 2013 S.C.C. 13.
3 L.R.O. 1990 ch. E.26.
4 Art. 1(1) et 21, L.R.O. 1990, ch. E.26.
5 L.R.Q. c. E-24.
The Queen v. Loiselle (1962) S.C.R. 624.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions