March 1, 2015
Of road salt, soybeans and wheat
BY ROBERT KENNALEYOn January 16, 2015, Mr. Justice Carey of the Ontario Superior Court released his decision in Steadman v. The Corporation of the County of Lambton, [2015] ONSC 101 (CanLii). The case before him was a claim for damages for ‘private nuisance,’ brought by Joseph and Evelyn Steadman, whose farmlands adjoin a regional highway. The tort of ‘private nuisance’ is in essence an unreasonable interference with the use and enjoyment of land. What makes the tort ‘private’ is the fact that the person making the complaint need not establish that the nuisance impacts the public at large, but only that it unreasonably impacts his or her use or enjoyment of the land in question. What is unreasonable will, of course, vary in the circumstances.
The Steadmans’ claim against the County was for damage to their soybean and wheat crops, and soils, caused by the County’s use of road salt. In response to the claims, the County relied on the social utility of salting and its statutory obligation to keep its roads safe. It also argued that the Steadmans had not proven that salt caused the damage and that the farmer should have, in any event, mitigated by fencing the property, creating a drainage ditch or spreading gypsum to counteract the effects of the salt.
Salt damage intrusive
Mr. Justice Carey found, upon hearing evidence on wind patterns, soil tests, controlled experiments and farm land real estate values, that the road salt had damaged the soils, impacting both crop production and the land’s value. In applying the law of private nuisance, Mr. Justice Carey followed a previous Ontario road salting case (Schenck v. The Queen; Rokeby v. The Queen (1981), 34 O.R. (2d) 595, which had been affirmed by both the Ontario Court of Appeal and the Supreme Court of Canada), in which the Court, in balancing the interests in that case, gave “full recognition to the importance of proper highway maintenance” but held that the plaintiffs were entitled to “vindication in damages against the continuing intrusion on their lands,” concluding that the interference with the use and enjoyment in that circumstances was of sufficient magnitude to support the action for nuisance. His Honour also followed a more recent Supreme Court of Canada decision (Truck Centre Ltd. v. Ontario (Ministry of Transportation), [2013] SCC 13, in which our highest Court followed Schneck in stating that liability for damages in such circumstances is imposed where “the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation” (Supreme Court’s emphasis).
This is where, in my view, the analysis becomes interesting. After 12 days of trial, Justice Carey found that 15 of 80 acres were salt damaged and that the farmer was entitled to $45,000 for crop loss for the years 1998-2013 (or $200 per acre per year,) and damages of $56,700 (or roughly six per cent of the clean assessed value) for the diminished value of the land. In doing so, His Honour clearly found that the damages exceeded what the farmer ought reasonably have been expected to bear as an adjoining property owner.
One might wonder, however, if there was any amount of road salt damage that the farmer should have been expected to bear, without compensation. Although Justice Carey did not address that question, it appears he made his decision, at least in part, based on the fact that the County’s own road manager had admitted that he was “shocked” at how much salt the county had used in 1997, that some maintenance operators were “old school” and slow to adopt some of the new standards, and that the County had, since 2009, ensured that all drivers were “compliant with the new guidelines” for salt distribution on the roads. The plaintiff’s expert had also testified that these guidelines (which included distribution rates of between 135 and 200 kgs per two-lane kilometer) were 54 per cent higher than the MTO guidelines, such that the County was possibly over-salting. (There does not appear to have been any consideration to whether or not the MTO rates would have been applicable, given the potential for different traffic volumes).
Accepted salt standards will help
It is not clear how His Honour would have decided the case had the County been applying salt at demonstrably reasonable rates during the applicable time frames. The decision, accordingly, may have little precedential value in such a circumstance. Still, the decision does raise some significant messages, issues and concerns. First, the decision highlights what the Canadian Nursery Landscape Association, Landscape Ontario and others (including Smart About Salt and the University of Waterloo) have been saying and working at for years: it is neither wise nor responsible to simply ‘throw more salt’ at roads and parking lots in an effort to manage ice, given the significant environmental impacts that can occur as a result. Nonetheless, the decision does appear to pit a municipality’s obligations to protect public safety on the roads against the need to ensure that salt does not unreasonably impact the environment. In this context, the decision provides little guidance. Where a farmer, for example, might question the need for a higher distribution rate, someone injured in a car accident would no doubt argue in favour of more salt. It is here where Mr. Justice Carey’s decision highlights the need for a legislative solution: a set of accepted distribution rates which balance the need for public safety and the need to protect the environment. A set of rates are required which will allow those responsible for road and parking lot maintenance to know just how much is enough, and how much would be too much. It is only in this way that we can avoid the prospect of asking that very question — how much was enough — in each circumstance. The good news is that many, including CNLA, LO and Smart About Salt are working towards this.
Robert Kennaley of McLauchlin & Associates practices construction law in Toronto and Simcoe, Ont., and speaks and writes regularly on construction issues. He can be reached for comment at (416) 368-2522 or at kennaley@mclauchlin.ca. This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.