Law Times

Page 8 June 29, 2015 • Law Times www.lawtimesnews.com Road-salt liability sparks calls for legislative change Municipalities concerned after Lambton County ordered to pay damages BY GLENN KAUTH Law Times o salt or not to salt? That is the question following a recent Ontario Superior Court of Justice rul- ing that awarded a southwestern Ontario couple damages for nuisance caused by the effects of road salt on their farm. "We can't just deposit road salt on their lands with impuni- ty," says Robert Gray, counsel for the couple, Joseph and Evelyn Steadman, in their legal battle with Lambton County. The comments follow Supe- rior Court Justice Thomas Car- ey's Jan. 16 ruling in Steadman v. Corp. of the County of Lambton in which he ordered the munici- pal government to pay damages of $45,000 for 15 years of crop losses; $56,700 for diminution of property value; and $5,652 for the couple's costs in investigating the claim. "I have been persuaded by the plaintiffs on the balance of probabilities that the disper- sion of road salt by the defendant along a portion of their property that bordered with Nauvoo Road was the cause of damage from about 1999 to the present, to their land and to their soya and wheat crops," wrote Carey. Much of the county's defence related to what it called the so- cial utility of road salting given, of course, the public safety con- cerns and liability it would likely face if it didn't spread deicing materials. But as Carey pointed out, neither the social utility of the activity nor the lack of negli- gence will preclude liability. "The hard part, of course, is that in terms of nuisance, social utility is not a defence," says Jen- nifer Stirton, a lawyer at McCall Dawson Osterberg Handler LLP in London, Ont., who represented the county in Steadman. "It's not a defence to nuisance in law," she adds. Carey referred to the lead- ing case on whether applying salt upon a farmer's property constitutes nuisance: Schenck v. Ontario; Rokeby v. Ontario. The case, which the court decided in favour of the plaintiff, went all the way to the Supreme Court of Canada. In Steadman, Carey re- jected the defendant's argument that Schenck was out of date. "The case was upheld on appeal to the Ontario Court of Appeal and the Supreme Court of Canada with both courts adopting the trial judge's reasons," he wrote. Steadman, a full-time farmer, began investigating the issue af- ter he observed suspected crop damage in the 1990s. Believing the spread of the damage was consistent with the prevailing winter winds, he presented, among other things, video evi- dence showing a passing truck kicking up snow that landed near the edge of the road and the start of his property. The video also showed an area in the middle of the farm Steadman described as white with salt, according to Carey. The farm, which is up for sale, has seen little interest from buyers, Carey noted, adding Steadman sug- gested the issues with the crops and his frustration in trying to resolve them may have led to his decision to sell. The property is now up for sale for $990,000 af- ter the couple initially put it up for $1.3 million. Steadman had little luck when he brought his complaints about the salt to county offi- cials. As part of the litigation, he brought forward expert evi- dence from an environmental engineer who concluded that the elevated levels of sodium and chloride found in 126 soil samples were the result of the application of salt on the road that had migrated through mist, wind, and runoff. For its part, a county man- ager acknowledged the munici- pality had used high amounts of salt in the past but said it had made efforts to reduce it. The county denied causation be- tween salting the road and crop damage and blamed poor drain- age for the couple's problems. It also said the couple had failed to mitigate their damages and rejected the claim of a reduction in property value due to stigma. While the court's findings raised significant concern in Lambton County about the bind the municipality found itself in, Gray says there has nevertheless been a positive outcome as the county has taken remedial steps. By encouraging a farmer on the opposite side of the road to plant corn, a natural fence now helps prevent the snow from landing on the Steadmans' land, he says. "I'm told that it was a huge suc- cess," he says, noting the issue is a significant concern in rural areas. "The county, to its credit, is attempting to do the remedia- tion steps, and I think it's work- ing out," says Gray. Like Stirton, he says the case didn't set any precedents given the previous findings in Schenck but he says it was unusual for the matter to reach the stage it did. "Most people probably don't have that ability to do it," says Gray, suggesting many people will probably not pursue litiga- tion when municipal officials tell them they're not responsible. The decision did raise alarm at the Ontario Good Roads As- sociation, an advocacy organi- zation for municipalities' trans- portation and public works is- sues. Following Carey's ruling, it contacted the county's insurer, Frank Cowan Co., to see if an appeal would be possible and, if so, offered to intervene in the case. The insurer had two law firms review the matter and both cast doubt on the merits of an appeal. As a result, Frank Cowan said it wouldn't be ap- pealing the decision. In an- nouncing the decision, it noted that to make a defence in nui- sance, a municipality would have to argue defences based on Municipalities have to keep the roads safe, but will they face liability for the spread of salt onto neigh- bouring properties? Photo: Paolo Bona/Shutterstock FOCUS ON Municipal & Planning Law T See Appeal, page 11 September 8, 2015 | Four Seasons Hotel Toronto Emcee Gail J. Cohen, Editor in Chief, Canadian Lawyer/ Law Times 6 p.m. – Cocktail Reception 7 p.m. – Gala Dinner and Awards Presentation Seating is limited | Business Attire For Table Sales and Sponsorship inquiries, please contact CarswellMedia.Sales@thomsonreuters.com or call 416-649-8841. Platinum Sponsor Bronze Sponsor For further information please visit www.innovatio-awards.com Media Sponsor CLII1723-2015 Invitation Print ad 5.8125x6.625.indd 1 2015-06-18 4:17 PM

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