Canada: Salt – A Bad Taste For Municipalities?

Steadman v. Corporation of the County of Lambton, 2015 ONSC 101 (CANLii)

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 [1987] 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.

This decision is not under appeal.

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