Lambton County (the "County") was recently held liable
in nuisance for damage to a farmer's crops caused by roadway
salting during winter maintenance operations. The Court awarded
over $100,000 to Evelyn and Joseph Steadman for 15 years of crop
losses and a diminution in their property value.
Mr. Steadman had been a farmer his entire adult life and had
lived with his wife on the farm in question for over 40 years.
Beginning in the mid to late-1990s Mr. Steadman began noticing crop
damage along a road maintained during the winter by the County. Mr.
Steadman began investigating the damage as it spread, obtaining
evidence that the salt applied by the County had resulted in
elevated levels of sodium chloride in his crops.
The Steadmans commenced a claim initially framed in both
negligence and nuisance, but only nuisance was pursued at trial.
Nuisance is established where a defendant's conduct results in
the unreasonable and substantial interference with a
plaintiff's use of their land. Neither the social utility of
the conduct nor the lack of negligence of the defendant is a
defence to a claim in nuisance.
Based on Mr. Steadman's evidence about the damage to his
crops, the evidence of various witnesses of a local co-op, and the
parties' expert evidence, including that of an environmental
engineer, the Court was satisfied that the dispersion of road salt
by the County along a portion of the Steadmans' farm was the
cause of damage to their land and crops.
Pursuant to the Municipal Act, 2001 the County was
statutorily mandated to maintain the roadway, and the "social
utility" of applying salt during the winter to maintain a
roadway was acknowledged at trial. However, the trial judge
nevertheless found that the damage caused by the salt was a
significant and unreasonable interference with the Steadmans'
use of their property and that they were entitled to compensation.
The trial judge accepted that 15% of the Steadmans' 80+ acre
farm had been significantly damaged and that there was a diminution
in the value of the farm.
The trial judge also held that the Steadmans did not fail to
mitigate their damages, for instance by way of fencing, crop
rotation, or applying gypsum to the soil, as the contamination
could not have been reasonably avoided.
This result is not without precedent. In fact, the trial judge
relied on the earlier case of Schenck v. The Queen; Rokeby v.
The Queen (1981), 34 O.R. (2d) 595, aff'd (1984), 49 O.R.
(2d) 556, (ONCA), aff'd  2 S.C.R. 289, which established
that the impact of the application of salt for winter roadway
maintenance upon a farmer's property constituted a nuisance.
The County had argued that the law as set out in Schenk was dated
and ought to be set aside. The trial judge disagreed. Quoting the
following passage from the initial decision of the trial judge in
Schenk (Robins J., as he then was), the trial judge in
Steadman noted that the damage to the plaintiff's farm
was the "cost of highway maintenance" and that fairness
"between the citizen and the state demands that the burden
imposed be borne by the public generally and not by the plaintiff
fruit farmers alone."
Although a defendant's lack of negligence is not relevant in
a nuisance claim, in this case, there was evidence at trial that
the County's application rate of salt was 54% greater than that
recommended by the Ontario Ministry of Transportation. Also, a
witness on behalf of the County expressed "shock" at how
much salt was being used in 1997 and acknowledged that some of the
road salt operators were "old school" and slow to adopt
new standards with respect to reducing the amount of salt used. One
wonders whether the Court may have arrived at a different
conclusion if the County's use of salt was consistent with
Ministry of Transportation recommendations and reflected attempts
to reduce overall salt use.
Is the cost of damage to land adjacent to roads simply part of
the cost of municipal roadway winter maintenance programs? Courts
over 30 years apart seem to think so. This decision highlights the
challenge faced by municipalities as they balance the goal of
protecting the environment with their statutory obligation to
maintain roadways. It also raises a number of risk management
issues for municipalities and underscores the importance of
complying with recommended salting rates and considering steps to
prevent damage to property adjacent to road salting routes.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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).