( Disponible en anglais seulement )
On July 30, 2021, the British Columbia Supreme Court released reasons for judgment in Ward v. Cariboo Regional District, 2021 BCSC 1495, shedding light on the wide breadth of injunctive relief available in circumstances of ongoing environmental contamination.[1] The decision shows that a party responsible for depositing a polluting substance on another’s property will bear responsibility to fix the situation, to remove that substance and remediate the property, and the legal consequences it may face if it fails to do so in a reasonable manner.[2]
Factual Background
The Plaintiffs are the owners of a rural residential property near Williams Lake, British Columbia (the “Property”). The Property is serviced by a gravity sewage system operated by the Defendant, the Cariboo Regional District (the “District”). In 2015, a power outage resulted in an estimated 49,000 gallons of raw sewage flooding the Property, including the Plaintiffs’ basement and pasture, and resulted in contamination of their well (the “2015 Flood”). The 2015 Flood was not only the third sewage spill on the Property by the District but was by far the largest. Following the 2015 Flood, the District paid for the restoration of the Plaintiffs’ basement and chlorinated the Plaintiffs’ well, but took no steps to remove any sewage from the pasture or ponds, in spite of the Plaintiffs’ requests. Instead, the District adopted the approach that sunlight would be sufficient to decontaminate the Property.
In 2017, the Plaintiffs commenced an action against the District in trespass, nuisance, negligence, and the cost recovery provisions of BC’s Environmental Management Act, which entitles property owners to recover their costs of remediation from parties responsible for contamination. The trial was scheduled to commence on September 21, 2020. Approximately six months before trial, the Plaintiffs experienced another sewage backup after creek water flooded the sewer system via a failed manhole on the Property, causing sewage to backup into the Plaintiffs’ basement (the “2020 Flood”) and on to their Property. The District denied liability for the 2020 Flood and the Plaintiffs amended their claim to seek relief in respect of both sewage floods.
The Trial
A week prior to trial the District amended its Response and admitted liability for negligence, continuing trespass and continuing nuisance for the 2015 Flood, but stated that the continuing trespass and nuisance stopped on an arbitrary date some six months later. At trial, the Plaintiffs provided evidence that the Property remained impaired by sewage, including expert evidence about the type of contaminants found in sewage, such as plastics and heavy metals that do not dissipate, by sunlight or otherwise, which remained on the Property. There was also evidence of continuing odours emanating from the Property and of changes to vegetation. The District had tested the site in 2018. The testing was ultimately found to be lacking, however, the results did prove there were exceedances of heavy metals, which were found in the 2015 sewage release. The estimated clean up costs were high and the Plaintiffs were not in a position to afford such costly measures.
The District tendered expert evidence from an environmental consultant. The consultant gave the opinion that while there were exceedances of metals identified on the Property, these exceedances likely related to background conditions or, he hypothesized, other possible reasons such as road salting of the adjacent road.
The Court’s Decision
In its 122-page reasons for judgment, the Court found the District liable in trespass, nuisance and negligence for both the 2015 and 2020 Floods. The Court found that the trespass and nuisance, rather than abating in the summer of 2015 as the District claimed, continued as of the date of trial. The Court found that the Environmental Management Act cost recovery claim was premature as the Plaintiffs had not incurred any costs of remediation to date. The Court awarded the Plaintiffs $35,000 in non-pecuniary damages, $12,000 in special damages and $30,000 for the loss of use and enjoyment of their land assuming the injunctive relief was completed within a year, in addition to the extensive injunctive relief discussed later in this article.
We have summarized some of the Court’s key findings in the following sections.
Continuing Trespass
Trespass is committed by entering upon, remaining upon, or projecting any object upon land in the possession of the plaintiff without lawful justification.[3] In support of the finding of a continuing trespass, the Court cited the Saskatchewan Court of Appeal’s decision in Peter Ballantyne Cree Nation v. Canada (Attorney General)[4] for the proposition that “… once an object is placed on another’s land, not only the initial intrusion, but also the failure to remove it constitutes an actionable wrong, and there is a ‘continuing trespass’ as long as the object remains.”[5] One of the findings of the Court was that the District had not taken the steps set out in its own emergency response plan, which recommended that spilled sewage be vacuumed up where possible. The District’s failure to follow its own protocols was particularly detrimental to its defence of the claim. The Court found that as the District had failed to follow its emergency response plan, it could not argue that it had complied with baseline standards to ensure adequate protection. The District had effectively followed a policy of “inaction.”
Continuing Nuisance
Nuisance is an interference with the claimant’s use of enjoyment of the land that is both substantial and unreasonable.[6] In order to prove a continuing nuisance, a plaintiff needs to show that the harm is suffered on a continuing basis and was not wholly past.[7] Here, the Court found that the Plaintiffs were able to show that a continuing nuisance had occurred because of the time that it took to restore the basement and the presence of sewage on the Property up until the commencement of trial. There was also considerable evidence tendered by the Plaintiffs about the significant and detrimental impacts of the ongoing contamination on their use and enjoyment of their Property and on their mental health and well-being.
Expert Evidence
At trial it became evident that the District’s environmental consultant failed to follow the Ministry of Environment’s background sampling protocol when conducting his environmental investigation of the Property. This included taking just a single background sample from one location, rather than 12 samples in total from four locations, and failing to identify in the body of his report that the soil composition of the background sample was different than in the other test samples, as he had identified to counsel in internal emails. As a result of these and other issues, the Court held that portions of the consultant’s reports were seriously flawed, false, misleading and unreliable, and were inadmissible. This included the consultant’s opinions attributing the metals exceedances to other possible background conditions.
Injunctive Relief
The Court found that awarding damages alone would not be sufficient. Given the numerous floods and the District’s history of inaction, the Court found that awarding damages alone would be akin to giving the District a license to pollute and trespass upon, and continue to pollute and trespass upon, the Property. The Court noted that the Plaintiffs wished to remain on the Property for life and it would not be reasonable to force them to live on a Property that was contaminated with sewage. The Court observed that where there is an interference with property rights, injunctive relief is strongly favoured. Consequently, the Court imposed a wide breadth of injunctive relief designed to ensure the removal of the contaminants, the restoration of the land, and the implementation of sufficient repairs and protective measures to minimize the likelihood of a future flooding event at the Property.
Specifically, the District was ordered to retain an engineering firm to create a testing plan to determine the extent of contaminants on the Property and, if contamination was found, a restoration plan to remove the contaminants and ensure the Property is restored to its condition prior to the flood. The Court further ordered the District to, among other things, repair and restore its manholes on the Property, install a gravity overflow system with a 100,000-litre storage capacity connected to the sewer system, install functional backflow preventers inside and outside of the Plaintiffs’ home, repair sinkholes above its sewer line on the Property, inspect and repair any deficiencies along the sewer line of the Property, and inspect and test drainage systems on the Property.
Takeaways
On August 30, 2021, the District appealed the BC Supreme Court’s decision. In October 2021, the District sought a stay of the primary injunctive orders requiring it to create a testing plan to determine the extent of contaminants and a resulting restoration plan, and a stay of the order requiring the District to install the gravity overflow system. The Court of Appeal found that the appeal by the District of the primary injunctive order had no merit and refused a stay.[8] However, a stay was granted on the installation of the gravity overflow system. While the appeal has yet to be heard, the lower court’s decision remains a valuable reminder that a party responsible for causing a continuing trespass or nuisance, including a municipality, will be held responsible as long as that trespass or nuisance continues. In the context of environmental contamination, this requires the polluting party to either remediate the contamination on its own initiative, or be subject to a claim for damages and injunctive orders issued by the court.
[1] Miller Thomson LLP acted as counsel for the Plaintiffs.
[2] Note: The BC Supreme Court’s decision is currently under appeal.
[3] Ward at para 49.
[4] 2016 SKCA 124.
[5] Ward at para 71.
[6] Ward at para 179.
[7] Ward at para 185.
[8] Ward v. Cariboo (Regional District) 2021 BCCA 423.
