Canada: Environmental Liabilities – Recent Quebec Case Law

Copyright 2008, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Environmental Law, December 2008


The Federal Court recently dismissed three applications by the environmental group Friends of the Earth (FOE) for orders against the federal government and the federal environment minister in connection with implementation of the Kyoto Protocol. In each instance, FOE asked the court to order the government to fulfill its obligations under the Kyoto Protocol Implementation Act (2007) (KPIA). FOE maintained that the government had failed to adopt a plan and regulations under the KPIA that would allow it to honour its commitments under paragraph 3.1 of the Kyoto Protocol (greenhouse gas emissions reduced to 6% below 1990 levels by 2008-2012).

The court noted that the KPIA came to Parliament as a private member's bill (Bill C-288) and therefore does not and cannot authorize the expenditure of money. It observed that if the intent of the act was to ensure that the Government of Canada complied strictly with Canada's obligations under the Kyoto Protocol, "the approach taken was unduly cumbersome." It pointed to the repeated use of the words "shall ensure" and indicated that this is not the same as "shall", the word normally used to impose on the government an enforceable duty to act. The court also noted that while it can enforce the government's obligation to adopt a climate change plan, it cannot venture to assess the merits of such a plan without exceeding its jurisdiction. Given the act's many policy-laden, "non-justiciable" provisions (absence of objective legal criteria which can be applied and no facts to be determined which would allow a court to decide whether compliance had been achieved) and the fact the act requires annual reporting to Parliament, the court found that implementation of the KPIA is intended to be subject to political, rather than judicial, oversight.


The Superior Court of Quebec has dismissed an application brought by homeowners in Sept-Îles who claimed that the municipality was shifting to them the cost of an effluent clean-up order it had received from the Quebec environment ministry. The court confirmed that residents are not subject to complying with the provincial order. However, they are directly responsible for complying with Quebec's 1981 Regulation respecting waste water disposal systems for isolated dwellings (the Regulation), whose enforcement has been delegated to Quebec municipalities by government decree. That is so even if, as in this case, the municipality only announced that it would begin enforcing the Regulation after it received the provincial clean-up order in 2002.

In 2002, in the face of growing concerns regarding groundwater and surface water quality at the eastern end of the Town of Sept-Îles, the Quebec environment minister ordered the town to extend its drinking water system into the area and to table a clean-up plan for the part of the sector that is not connected to the municipal sewer system. The town prepared a plan that included inspecting all the septic systems in the area and requiring residents to bring systems into compliance with the Regulation. A majority of residents whose systems had been inspected and found to be deficient signed undertakings which stated that the town would take no enforcement action against them under the Regulation provided their septic systems were upgraded by a certain date. Others refused to sign an undertaking and applied for a declaration from the Superior Court that the order issued by the Quebec environment minister and the clean-up plan tabled by the municipality did not bind them. Those who had signed undertakings joined in the action and asked to have the undertakings declared invalid. In turn, the municipality applied for an injunction to force the homeowners to comply with the Regulation. The injunction was granted. The citizen's application was dismissed.

It is noteworthy that the municipality had received federal and provincial funding to extend its sewer system into part of the sector, known as the Beaches. Residents of the other part of the sector, where population density is too low to be eligible for federal and provincial infrastructure subsidies, were forced to upgrade their septic systems so that the municipality could comply with the provincial clean-up order. Reminding the plaintiffs that the prohibition against polluting applies to everyone, the court noted that residents of the Beaches, whose dwellings had recently been connected to the sewer system, have to pay a special tax to offset part of the project costs.

Enforcing the Regulation against owners of homes in outlying areas is one of the conditions imposed by Quebec on municipalities that wish to access federal-provincial infrastructure funding to upgrade their wastewater treatment systems. We can therefore expect more disputes of this kind as home and cottage owners around the province are notified that non-compliance with the Regulation is no longer an option, and that they will have to pay for the upgrades themselves.


In a decision that is currently under appeal, the Superior Court of Quebec has awarded damages to landowners whose properties continued to be used for municipal waste disposal purposes after the municipality's lease expired (and before the properties were expropriated).

Part of the municipal waste disposal site ran alongside private properties and encroached on them. The municipality leased the lands it encroached on. Around the year 2000, the leases were nearing expiry but the owners refused the municipality's offers to purchase and declined to negotiate new leases. After the leases expired, the municipality continued to dispose of waste on the private properties for about two years, after which the properties were expropriated. The Superior Court held that the owners are entitled to compensation for the moral and material damage they have suffered by reason of the unauthorized occupation of their land during the period between the expiry of the leases and the date the expropriation took effect. The court rejected the municipality's claim that the owners are entitled only to indemnification (basically, rent), rather than damages (compensation for loss of the use of their properties and distress caused by the disdainful/secretive attitude of municipal employees). It underscored that the right of property is a right protected by the Quebec Charter of Human Rights and Freedoms. Further, the court calculated the compensation to which the owners are entitled on the basis of profits made by the municipality (price charged per ton of waste disposed of minus operating costs) rather than the value assigned to the properties during the expropriation process.


In September 2008, the Superior Court of Quebec granted a real estate developer's motion to cancel a legal hypothec for construction (akin to a construction lien) that an environmental services firm had registered against the developer's lands. After studying articles 900 and 902 of the Civil Code of Québec (defining immovables) and articles 2726 and 2728 concerning construction hypothecs, the court held that no legal hypothec for construction existed in this case because of the absence of a connection between the service rendered (offsite soil remediation) and the construction of the immovable. The court acknowledged that the removal and offsite treatment of the soil added value to the immovable. Indeed, no development project could have gone forward had the soils remained in place. However, the contaminated soil, once remediated, was not returned to the site, as this is prohibited under applicable environmental rules. Because the soil was not returned to the immovable, the legal hypothec was not created.

Assessing and remediating contaminated sites prior to reuse has been the law in Quebec since 2003. Legislative change may eventually be needed to protect those who make compliance possible by taking delivery of, and decontaminating, the soils from Quebec's legacy sites.


In June 2008, the Superior Court of Quebec granted an action concerning hidden defects and canceled the 2004 sale of a home built on a site used in the 1950s and '60s to burn and bury domestic waste. Under the Environment Quality Act (Quebec) (EQA), no one may carry on construction work on a former landfill without an authorization from the Ministry of Sustainable Development, Environment and Parks. The 2004 sellers (who did not know about the landfill) and the previous (2001) sellers (who did know about it but did not obtain an EQA authorization) were held solidarily (jointly and severally) liable for the reimbursement of the purchase price. The 2001 sellers were also held liable for damages claimed by the plaintiffs, and for reimbursing all expenses incurred by the 2004 sellers in connection with the lawsuit. Under the Civil Code of Québec, a plaintiff must establish that it would not have purchased the home or would have paid a lower price, had it known about the defect. It is not necessary to prove that the seller knew about the defect and, in this case, the 2001 sellers did not. The plaintiffs established that the site contained contaminants in concentrations above those that apply to residential immovables, and that the cost of replacing waste on the property with clean soil was almost equal to the C$160,000 purchase price of the home. The court accepted the plaintiffs' testimony that the defect – which prevented them from allowing their child to play outside – was serious enough to warrant cancelling the sale.

This decision is a reminder that liability for latent defects exists regardless of whether a seller is in good faith – in other words, even if the seller is unaware of the defect. Given the large number of former dumps and landfills in and around cities and towns in Quebec, investors should proceed with caution when assessing vacant land for development purposes.

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.

In association with
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
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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