Canada Supreme Court to Decide Limits to Environmental Class Actions

Represented by pro bono counsel from the law firm Ecojustice and the firm of Lauzon Bélanger, the Quebec Environmental Law Centre and Friends of the Earth Canada intervened in the case of St. Lawrence Cement Inc. v. Barrette.

Beatrice Olivastri, CEO of Friends of the Earth Canada, said, "We are intervening to ensure that access to environmental justice is protected and promoted both in Québec and in the rest of Canada."

The lawsuit began as a class action brought by neighbors of a Quebec City cement factory in the Beauport district, which operated for 42 years.

The neighbors instituted a class action against St. Lawrence Cement for neighborhood disturbances resulting from the operation of the cement plant. The evidence showed that for decades the residents had suffered considerable annoyances, such as the deposit of cement residues on houses, land and cars as well as many problems involving dust, odors and noise.

Concrete dust covers a computer (Photo credit unknown)

Concrete dust contains respirable crystalline silica, microscopic shards of quartz and similar glass-like minerals that lacerate the lungs at the molecular level, forming scar tissue that progressively reduces the lungs' ability to absorb oxygen, health officials say. The process continues to develop after exposure has stopped, even appearing years later, and is irreversible.

The Quebec Superior Court upheld the neighbors' claim and ordered St. Lawrence Cement to pay $15 million in damages.

But the Quebec Court of Appeal reversed this decision, concluding that nuisance claims could not be brought as a class action proceeding, and that the right to bring such claims was limited to property owners, as opposed to tenants or the spouses and children of owners.

Still, the appellate court found the company was at fault since it was obligated to keep its pollution control equipment in "optimal" working order.

St. Lawrence Cement appealed the ruling to the Supreme Court, saying it had consistently met regulatory emission standards. The case marks the first environmental class action from Quebec to be heard before the Supreme Court of Canada.

The Court of Appeal's decision surprised many legal observers, as it runs counter to the principle of enhanced access to justice, according to Ecojustice.

"By limiting the availability of the class action procedure in environmental nuisance cases, an important environmental protection tool for ordinary Canadians was undermined," said Will Amos, Ecojustice staff lawyer who argued the case.

Amos says the case highlights the broader issue of how and when individual citizens can bring private nuisance lawsuits to protect their environment, in particular when industrial emission regulations provide inadequate protection for neighboring homes, or when government regulators do not effectively enforce the law.

"Although Canadians want and expect their governments to control industry's pollution, there are gaps in local standards and implementation measures that must be overcome," said Michel Bélanger, counsel at Lauzon Bélanger in Montreal.

"There is still a role to be played by ordinary Canadians in bringing environmental nuisance claims," said Jean-Francois Girard, director of the Quebec Centre for Environmental Law. "This area of law must be interpreted according to the principles of polluter-pays and environmental cost internalization."

Olivastri said, "The reason we have intervened in this, we think its of national importance for citizens to be able to address nuisance issues thru class action suits.

"We have intervened in every class action lawsuit," Olivastri said, "because this class action tool is novel to Canada; it's not widely in use and needs definition. In this case it's having the court assess whether a nuisance can be an acceptable reason for bringing a case."

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