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.»)