Canada: An Important Reminder From The Quebec Court Of Appeal Of The Importance Of Causation In Environmental Class Actions

On July 24, 2023, the Quebec Court of Appeal in Lalande c. Compagnie d'arrimage de Québec ltée, 2023 QCCA 973 dismissed the appeal from a decision of the Quebec Superior Court that had rejected a class action on the merits seeking compensation in relation to the presence of large amounts of dust near the Port of Quebec.¹ The Court of Appeal's decision is significant for two main reasons: (1) it reiterates the necessity of demonstrating a material contribution when proving causation in cases involving multiple potential defendants and (2) it curtails the application of Spieser v. Procureur general du Canada, 2020 QCCA 42 regarding the indemnification of class members' fears and worries of developing health problems.

Background

In 2013, inhabitants living in the residential sector neighboring the Port of Quebec (the "Zone") instituted a class action against the Compagnie d'arrimage de Québec ltée (the "CAQ") and l'Administration portuaire de Québec (the "APQ"), claiming various damages in relation to their exposure to dust in the Zone. Specifically, the plaintiffs claimed that the defendants' bulk handling activities caused dust deposits in the homes of the class members exceeding the threshold of normal annoyances, thus adversely affecting their quality of life. The plaintiffs also claimed that they should be indemnified for their worries and fears about the effect of the dust on their health.

The issue of causation regarding the no-fault nuisance claim

In Québec, there is a no-fault liability regime for neighbourhood annoyances that are beyond the limit of tolerance, i.e., abnormal annoyances.² However, while fault is not a necessary element of this liability regime, causation still needs to be established. In other words, the plaintiffs had the burden of proving that the abnormal annoyances they were complaining of were caused by the defendants' actions.

In this case, the main issue with the plaintiffs' claim was the fact that the Zone is situated in an urban environment with various distinct sources of dust. While the trial judge agreed that the people living in the Zone had to deal with abnormal amounts of dust, sample testing of the dust demonstrated that the port activities made up less than 2.8% of the samples. In fact, the main composition of the dust was demonstrated to consist of de-icing salt and abrasives. This evidence led the trial judge to conclude that the port's activities did not materially contribute to the nuisance the plaintiffs were complaining of.

In other words, the plaintiffs were arguing the defendants should be liable for the entirety of the dust problem without demonstrating the causal link between the CAQ's activities and the entirety, or even the majority, of the dust. The plaintiffs submitted that even if the CAQ was not responsible, on its own, for an abnormal amount of dust, its activities represented the "excess" dust that caused the annoyance to become abnormal. The Court of Appeal did not accept this argument, citing the Supreme Court of Canada in the Leonati³ case which set out the "material contribution" test, which applies under Quebec civil law, as well as in the Canadian common law provinces. The Court of Appeal concluded that nothing in the evidence allowed for the conclusion that the CAQ's activities materially contributed to the dust problem.

The claim for moral damages to indemnify the class members' fears and worries

The second takeaway from this decision is the Court of Appeal's comments regarding the possibility of indemnifying fears or worries. The plaintiffs did not argue that the dust caused any health issues on the inhabitants of the Zone; rather, they claimed that the dust caused the inhabitants to worry about and fear potential future health problems.

The Court of Appeal confirmed that while fear and worry regarding one's health may be an indemnifiable prejudice in certain instances, as was demonstrated in the Spieser case, the burden of proof to establish such prejudice is exceedingly high, especially in the context of a class action. This is because each class member may have different levels of fear and worry based on their own tolerance. In Spieser, the Regional Public Health Director had made alarming statements regarding the contaminated wells, consumption of well water had been banned, and psychological help had been offered to the residents of the area concerned. The common nature of the fears shared by the class members was considered clear. In this case, the Court of Appeal concluded that the situation was completely the opposite: the Regional Public Health Director had actually put out reports and notices demonstrating that the dust was not harmful and did not present a health risk.

The Court of Appeal thus limits the Spieser case, which opened the door to indemnifying fears and worries, by making it clear that the evidence needs to support these fears and worries and that they need to be common to the class.

Footnotes

1. This decision is final, as plaintiffs did not seek leave from the Supreme Court of Canada to appeal the decision. McCarthy Tétrault acted as special counsel for one of the defendants in this case.

2. See article 976 of the Civil Code of Québec; Ciment du Saint-Laurent inc. c. Barrette, 2008 CSC 64, par. 86.

3. Athey c. Leonati, (1996) 3 R.C.S. 458

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