To salt or not to salt? That is the question following a recent Ontario Superior Court of Justice ruling 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 impunity,” says Robert Gray, counsel for the couple, Joseph and Evelyn Steadman, in their legal battle with Lambton County.
Much of the county’s defence related to what it called the social utility of road salting given, of course, the public safety concerns 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 negligence will preclude liability.
“The hard part, of course, is that in terms of nuisance, social utility is not a defence,” says Jennifer 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 leading 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 In Steadman, Carey rejected the defendant’s argument that Schenck was out of date.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 after 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 evidence 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 suggested 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 after the couple initially put it up for $1.3 million.
Steadman had little luck when he brought his complaints about the salt to county officials. As part of the litigation, he brought forward expert evidence 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 manager acknowledged the municipality had used high amounts of salt in the past but said it had made efforts to reduce it. The county denied causation between salting the road and crop damage and blamed poor drainage 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 success,” he says, noting the issue is a significant concern in rural areas.
“The county, to its credit, is attempting to do the remediation steps, and I think it’s working 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 litigation when municipal officials tell them they’re not responsible.
The decision did raise alarm at the Ontario Good Roads Association, an advocacy organization for municipalities’ transportation and public works issues. 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 appealing the decision. In announcing the decision, it noted that to make a defence in nuisance, a municipality would have to argue defences based on statutory authority and that in this case, the minimum maintenance standards don’t specify road salt as the only way to comply. As such, it recommended municipalities consider options such as ensuring proper roadside drainage, inspecting and maintaining culverts, reviewing road-salt concentrations, and using snow fences in order to manage risk. “While [the association] is disappointed that an appeal was not possible, we support and respect Frank Cowan Company’s decision,” said association president Tom Bateman.
The focus now, then, is on a push for legislative change to address the statutory issues noted in the ruling as well as by the insurer. In its response to the appeal inquiry, the insurer noted options include amending the Municipal Act to give municipalities protection from nuisance claims related to the escape of road salt.
Stirton, too, raises the idea of legislative change to address the tension between the statutory duty to maintain roads and the potential for nuisance exposure for doing so.
“I think there is probably a need for legislative change,” she says.