Monday, June 22, 2015

County Held Liable To Farmer For Excessive Use of Road Salt


In the case indexed as Steadman v. Lambton (County) 2015 ONSC 101, the plaintiff, (“Steadman”) and his wife, lived on a farm bordering Nauvoo Road in Lambton County, Ontario (“County”).  Mr. Steadman had been a full-time farmer for all of his adult life.  His wife was a retired nurse.  

 

Mr. Steadman farmed wheat and soybeans on his land and had been doing so for more than 40 years.  In the mid to late 1990s he observed crop damage due to the County spraying salt on Nauvoo Road.  He sued the County for nuisance, claiming crop losses, diminution of the value of his farm.  Mr. Steadman also claimed that the farm was now burdened with a "stigma' of having been damaged by the salt.   

 

The County defended the action claiming that the real culprit was the poor drainage on Mr. Steadman’s property; he had taken no steps to fence the property and restrict the wind's distribution of salt or use gypsum to mediate the effects of salt on his land.

 

The matter proceeded to trial before Justice Carey of the Ontario Superior Court of Justice.

 

Justice Carey reviewed extensive factual and expert evidence with respect to both liability and damages.  He concluded on all of the evidence, that the pattern of salt dispersal on Mr. Steadman’s farm was consistent with his engineering expert's opinion that higher levels of salt contamination were found closest to the road.  The only reasonable logical inference was that the salt was coming from road spray and off the road itself.  Justice Carey found on the balance of probabilities that the dispersion of the road salt along the portion of the land that bordered the road was the cause of the damage to Mr. Steadman's wheat and soya crops from about 1999 to the date of trial.

 

Justice Carey relied on the leading case in Ontario in considering whether road salt constitutes a nuisance – Schenck v. The Queen; Rokeby v. The Queen.  In that 1981 case, (which was upheld on appeal to the Ontario Court of Appeal and Supreme Court of Canada), Justice Robins balanced the interests between the plaintiffs' private property rights with the importance of proper highway maintenance to the public at large.  He found that on a balancing of the conflicting interests it would be unreasonable to compel the plaintiffs to continue to suffer interference for an indeterminate time without compensation from the government.  The injury was a cost of highway maintenance and the harm suffered by the plaintiffs was greater than they should be required to bear in the circumstances, at least without compensation.   Fairness between the citizen and the state demands that the burden imposed be borne by the public generally and not by the plaintiff farmers alone. 

 

As for damages, Justice Carey assessed damages at approximately $107,000 for crop losses, the cost of soil and plant tissue analysis, and diminution in the value of Mr. Steadman’s property.   

He concluded that on the evidence, Mr. Steadman had not satisfied him that there should be separate damage award for stigma (the seminal case in Ontario on stigma is Tridan Developments Limited v. Shell Canada Products Limited).  In that case, the Ontario Court of Appeal considered whether there would be a residual reduction in the value of land, even after it had been restored to a pristine condition caused by the knowledge that it had once been polluted.

Justice Carey reviewed the cases following Tridan as well as the evidence presented by Mr. Steadman.  He concluded that the salt contamination posed no human safety concern.  Additionally, he did not accept that the highest and best use of the land was cash crop farming.  Portions of the farm were unaffected by the salt and there was the ability to sever and/or consolidate the farm and its buildings for other uses.

Regards,

Blair

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