On November 20, the Supreme Court of Canada rendered its
much anticipated judgment inSt. 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
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
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
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.
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.
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