The City of Hamilton says its “Road Operations group is watching this case very closely because it has significant implications for all municipalities who use road salt as the most effective means of clearing ice and snow”.
The full ruling by Justice Thomas J. Carey of the Ontario Superior Court of Justice is now on CanLii: Steadman v. Corporation of the County of Lambton, 2015 ONSC 101
Would this, as the Ontario Good Roads Association – a lobby group representing municipalities – set a precedent for mass liability of municipalities across Ontario?
Is it a situation as expressed by OGRA Executive Director Joe Tiernay of
“basically a damned if you do and damned if you don’t situation for Ontario municipalities. The same judges that are ruling in favour of plaintiffs claiming that municipalities are not doing enough to keep the roads safe in winter are now ruling that we are doing to much.”
Does it even set a precedent or is it logical continuance of the 1987 Supreme Court of Canada decision on nuisance law in denying an appeal of Schenck v. Ontario; Rokeby v. Ontario which found the Ontario Government responsible for damages caused to peach and apple trees from road salt spray.
The judge agreed with the farmer Joseph Steadman that 15 percent of his 96 acre farm, with a maximum available planted tillage of 80 acres, was damaged and unproductive due to effects of road salt.
The case was a matter of nuisance law, which is distinct from negligence law. The County’s road salting was interfering with the private farm property.
Steadman presented expert evidence that he suffered crop loss due to a build up of salt in soil caused from runoff and salt blowing from the road onto his farm.
One of the experts found Lambton County’s salt management plan is using road salt 54 percent greater than the recommended rates from the Ontario Ministry of Transportation.
“[I]t is possible that the County of Lambton is over applying road salt,” the Justice quotes Michael Duchene, an environmental engineer with a master’s degree of applied science and civil engineering, as stating.
A key paragraph of the ruling is a citation of the 1980’s ruling by Justice Robins in Schenck v. Ontario; Rokeby v. Ontario.
Basically, that ruling found that road salt served the public interest, but the burden imposed upon the orchard farmers in that case greater than should be borne by the farmers individually – the cost of road safety included the public compensating for agricultural harm.
I do not agree that the plaintiffs’ property interests may be infringed with impunity. Giving full recognition to the importance of proper highway maintenance to the public at large, in my opinion the plaintiffs are entitled to vindication in damages against the continuing intrusion on their lands. The interference with the use and enjoyment in the present circumstances is sufficiently peculiar, sufficiently direct and of sufficient magnitude to support an action for nuisance. On a balancing of the conflicting interests appropriate to this department of the law, it would be unreasonable to compel these plaintiffs to continue to suffer this interference for an indeterminate time, as the government would have it, without compensation. In reality, their injury is a cost of highway maintenance and the harm suffered by them is 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 fruit farmers alone.
While there may be huffing and puffing about the Lambton County ruling, the case law is already set – it has been the case for over 30 years in Ontario that government must mitigate and compensate for the harmful effects of road salt upon agriculture.
Salt and Agriculture in Hamilton
I spoke with Councillor Robert Pasuta, who runs a farm in Campbellville and represents the rural ward 14.
He says he’s not aware of any current hotspots in Hamilton, but that road salt’s impact on agriculture has been an issue of much discussion among the local chapter of the Ontario Federation of Agriculture.
City staff state they are “not aware of any complaints or claims from local farmers related to road salt damage.”
Farmers are very aware of watershed issues as they rely upon a steady supply of water for their operations, Pasuta says.
Pasuta says issues with road salt are very specific to topography, drainage, crops, and other factors. He noted that soybeans are a particularly sensitive crop.
There is much discussion within the local agricultural community about the ruling, but he is not aware of any impact locally. Lambton County is part of a traditional snow belt and experiences more snow days than Hamilton.
Still with thousands of kilometres of rural roads, Pasuta says he and his Council colleagues are watching the response to this court ruling with interest.
I’ve emailed the City’s Public Works Department questions related to how salt is used on Hamilton’s rural roads, if they are aware of any issues in Hamilton, and if there has been any recent cases of compensation to farmers for salt damage.
I’ll update when I receive a reply.
Full City Response
Our Road Operations group is watching this case very closely because it has significant implications for all municipalities who use road salt as the most effective means of clearing ice and snow. They always strive to balance the need to ensure the roads are clear for public safety with the environmental impacts of using road salt. At this point they have not changed any of their road salt procedures as a result of this case.
Staff were not aware of any complaints or claims from local farmers related to road salt damage.
For your reference, the Ontario Good Roads Association, of which Hamilton is a member, recently posted a statement with next steps to address this matter. This may be helpful to you as well.
Kelly Anderson, APR | Communications Officer
Public Works Department | City of Hamilton