Québec water case law 18: Authorisation denied for a class action further to rains and sewer backflow

(BY HUGO)

In Côté v. Montréal (Ville de) (in French), the Superior Court must decide whether to authorise a class action on behalf of all the persons having sustained damages further to the heavy rains of 2 August 2008 on the territory serviced by the water works and sewers of Montréal.

The motion to obtain authorisation alleges that the City's sewer system is outdated and inadequate, and that the City failed to take appropriate measures to ensure that flooding and sewer backflow would be avoided.

The Court first provides a brief overview of the principles applicable at the prior authorisation stage (see sections 1002 and ff. Code of Civil Procedure (CCP)).

Then, the Court proceeds to establish that the cumulative conditions required by section 1003 CCP have not been met: although the facts alleged seem to justify the conclusions sought, the recourses of the members of the group do not raise identical, similar or related questions of law or fact, notably because the sewer system is a fragmented patchwork under the responsibility of 19 different sub-municipal authorities and the amount of rain on 2 August 2008 varied significantly over the municipal territory.

Because of this, the Court does not decide whether the representative seeking to obtain the authorisation is in a position to represent the members of the class action adequately. The authorisation is denied.

Québec water case law 17: «Lower land is subject to receiving water flowing onto it naturally from higher land»

(BY HUGO)

In Petrecca v. Théodore (in French), the owner of a residence sues in civil liability his neighbour, the contractor who completed earthworks on the neighbour’s property, the seller/developer of his and his neighbour’s property, as well as the city where the two properties are situated. The damages claimed result from the swamping of the Plaintiff’s property further to the earthworks raised on the neighbour’s property.

The Superior Court decides that the neighbour is responsible on the basis of section 976 of the Civil Code of Québec (CCQ). Section 976 CCQ provides that neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom. In other words, the earthworks created an abnormal neighbouring annoyance. The tribunal reminds that liability for neighbouring annoyances is a no fault regime according to the Supreme Court’s teachings in Ciment Saint-Laurent v. Barrette.

The property seller/developer is responsible only as a seller - and not as a developer - on the basis of contractual liability for false representations.

The contractor is not responsible under the general extra-contractual liability regime. The city acted correctly in all respect and also cannot be held liable.

Significantly, section 979 CCQ is only invoked when the tribunal proceeds to determine whether the damages claimed for stress, troubles and inconvenience are justified and establish their exact quantum (see §216).

WWD webcast

(BY HUGO)

Professor Patricia Wouters, Director of the UNESCO IHP-HELP Centre for Water Law, Policy and Science, will take part in «The Global Water Crisis: Addressing an Urgent Security Issue», and event related to the the Worl Water Day, led by the InterAction Council and chaired by the Right Honourable Jean Chrétien, prime Minister of Canada, 1993-2003.

Here's the site to register for the live webcast.

Québec water case law 16: Causality and trout mortality

(BY HUGO)

In Michaud v. Équipements ESF inc (in French), the Court of Appeal is on appeal of a judgement rejecting an action in civil liability for damages sustained by the owner of an aquaculture business comprised of a few artificial lakes seeded with trout as a result of heavy fish mortality allegedly caused by hydrocarbon contamination leaking through soil from a neighbouring industrial shop.

In first instance, the damages are established, as is environmental contamination from hydrocarbon leakage. The debate focuses on the causality link between the damages and the leak as well as on the evaluation and award of expert costs. Both these issues are on appeal.

With respect to causality, the Court states the principles relevant to the application of a presumption of causality and refers sections 2804, 2811 and 2849 of the Civil Code of Québec as well as to Morin v. Blais (SCC), Sarrazin v. Québec (Procureur général) (QCA - in French) and Longpré v. Thériault [1979] C.A. 258 (QCA) to find that circumstances are not serious, precise and concordant enough to give rise to a presumption establishing causality. The Court then proceeds to examine whether the appellant has met the burden of proof on causality to establish a link between hydrocarbon leakage and fish mortality under the light of the principles established in Lacasse v. Labrecque [1995] R.R.A. 596 (QCA). The Court concludes that evidence has not established on the balance of probability that fish mortality was caused by the leaks, and that the Superior Court has not made a manifest and dominant mistake on this point.

One last point worth mentioning is from the discussion about expert costs. At §94, the Court states that compliance with precedents stems from a public order imperative that allows justiciables to act and settle their disputes in a predictable framework («Le respect de l’autorité du précédent ne relève pas du caprice, mais elle reflète un impératif d’ordre public qui est de permettre aux justiciables de régler leurs affaires dans un cadre prévisible et d’agir dans ce cadre.»)

Special issue on water law

(BY HUGO)

Les Cahiers de droit just published their issue 3 & 4, Vol. 51, a special issue on water law with many articles exploring interesting subjects in Québec law. Content includes:

- Jane Matthews Glenn, «Crown Ownership of Water in situ in Common Law Canada: Public Trusts, Classical Trusts and Fiduciary Duties»

- Sylvie Paquerot, «Au-dela d'une ressource naturelle: quels criteres faut-il privilegier pour doter l'eau douce et le cycle hydrologique d'un statut specifique?»

- Madeleine Cantin Cumyn, «L'eau, une ressource collective: portee de cette designation dans la Loi affirmant le caractere collectif des ressources en eau et visant a renforcer leur protection»

- Suzanne Comtois and Bianca Turgeon, «L'eau, chose commune a l'usage de tous: l'Etat quebecois a-t-il les moyens de donner effet a ce statut?»

- Jamie Benidickson, «Cleaning Up after the Log Drivers' Waltz: Finding the Ottawa River Watershed»

- Patrick Forest, «Inter-local Water Agreements: Law, Geography, and NAFTA»

- Yenny Vega Cardenas and Nayive Biofanny Vega, «L'eau douce, son exportation et Ie droit constitutionnel canadien»

- Hugo Tremblay, «The Emergence of Environmental Flow Protection in Quebec Law»

- Catherine Choquette, Edith Guilhermont and Marie-Pier Goyette Noel, «La gestion du niveau d'eau des barrages-reservoirs au Quebec: aspects juridiques et environnementaux»

- Daniel Bouchard and Helene Gauvin, «Plus l'eau a de gardiens, plus elle est en peril»

- David Gilles, «Amenager, canaliser, encadrer juridiquement les rivieres du Quebec: le poids de I'histoire?»

On the triage of species: which ones do we want extinct?

(BY HUGO)

Just a quick post to point to an ongoing debate that originated in California water management about earmarking the extinction of some species as acceptable. Here's a post from Professor Holly Doremus on Legal Planet that provides context and references on the origin of the debate.

This debate raises fascinating issues at the theoretical level about the anthropocentric nature of development and conservation but also at the advocacy or political level about picking the most effective path of action to achieve conservation goals.

Under the federal Species at Risk Act (SARA) in Canada, triage is implicitly accepted, as appears from a previous post. In 2010, the federal government decided not to list the Winter Skate for the following reasons:

«The prohibitions under section 32 of the Species at Risk Act (“the Act”), which come into effect after listing a species as threatened or endangered, require that any activity that would result in killing, harming, harassing, capturing or taking the listed species be stopped immediately. This would include fishing activity, if the Winter Skate is caught as bycatch while listed as threatened or endangered, as is the case for the Southern Gulf of St. Lawrence and Eastern Scotian Shelf populations, which have been assessed as endangered species and threatened species respectively. The negative socio-economic impacts of listing these populations would be significant and the population trajectory of the species is unlikely to be reversed as a result of the listing. The closure of commercial fisheries in Northwest Atlantic Fisheries Organization areas 4T and 4VW, which would be necessary as a result of listing these populations, would result in millions of dollars in lost revenue annually, as well as significant direct and indirect job losses.»

Thus, under SARA, triage is principally effected at listing level (arguably, triage can also occur during the development of recovery strategies, but this would presumably be less significant since the principal prohibitions to affect the species provided by SARA would already be operational). A brief review of SARA's provisions shows that identification and listing of protected species is subjected to a detailed process formally guided by scientific inputs but ultimately subordinated to political discretion.

A committee of experts in disciplines such as conservation biology, population dynamics or genetics, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), must assess the status of each wildlife species it considers to be at risk, with priority given to the species more likely to become extinct, in order to classify it as extirpated, endangered, threatened, of special concern or not currently at risk and, as part of the assessment, identify existing and potential threats to the species. (Here are COSEWIC criteria and guidelines for the status assessment of wildlife species)

The COSEWIC must then provide the reasoned assessment of a species status to the federal Minister of the Environment, who then makes a recommendation to the Governor in Council to add a wildlife species to the list of species at risk, to reclassify a listed wildlife species, or to remove a listed wildlife species. The Governor in Council may not accept the recommendation and decide not to add the species to the list of species at risk. All decisions not to add a species to the list despite assessments made by the COSEWIC appear to have been taken under the government in power since 2005 for reasons that include economic costs, absence of data as well as sectoral opposition.

Regarding triage under SARA, one of the main points that may block debate in Canada is that the phenomenon is not explicitly recognized by the legal framework (the preamble and the purpose of SARA) but nevertheless occurs in a completely discretionary space within the regime.