In a recent judgment, the Court of Quebec clarified in Société de développement du fonds immobilier du Québec v. Couche-Tard[1], some issues relating to the migration of contaminants in the environment, and the liability that may ensue.

Background

In Quebec, section 20 of the Environment Quality Act[2] (EQA) prohibits the release of contaminants under certain conditions. The term "contaminant release" is defined by the law as: any deposit, discharge, issue or emission of contaminants in or into the environment.

In the case at stake, the Société de développement du fonds immobilier du Québec was suing its neighbour Couche-Tard, following the migration of petroleum hydrocarbons in the soil of its building. The plaintiff was claiming damages for the work necessary to remove residual contaminants left by the defendant, after the rehabilitation of the soils in accordance with applicable regulations[3].

The Court of Quebec considered three issues: whether the defendant had committed a fault that led to the soil contamination, whether the migration of contaminants constituted a neighbourhood disturbance pursuant to section 976 CCQ, and whether the plaintiff was entitled to claim a complete rehabilitation of the soil.

The Judgment

In the judgment rendered on August 17, 2020, the Court of Quebec analyzes the context in which the plaintiff became the owner of a commercial property, and the expert evidence about its contamination by petroleum products having migrated from the neighbour’s site belonging to Couche-Tard, related to its previous use by a gas station.

This evidence essentially reveals that the plaintiff's property contains hydrocarbon concentrations exceeding the "C" criterion of the environmental policy[4] applicable to a commercial land. Based on the recommendations of its consultants, the defendant suggested soil remediation by in situ chemical oxidation, according to criterion "B", to take into account the possibility of a mixed (commercial and residential) use of the property. Unsatisfied with this proposal, the plaintiff brought an action in 2018 to claim the cost of the complete decontamination of the soils, by excavation. Without prejudice to the plaintiff's position, the decontamination work proposed by the defendant is completed in 2019, and the evidence confirms that the soils meet criterion "B".

After analysis, the Court of Quebec held that the migration of contaminants to a neighbouring site does not in itself constitute a fault, within the meaning of section 1457 CCQ. In this regard, the Court wondered whether the migration of hydrocarbons in the soil of the property could be assimilated to a "contaminant release" as per section 20 EQA. After noting that the term "migration" is not defined in the EQA, the Court indicated that it is because of the "polluter pays" principle that a person who discharges a contaminant into the environment is liable to penalties. Thus, the migration of contaminants subsequent to their initial release cannot qualify as prohibited "contaminant release" within the meaning of the EQA.

In this case, the Court therefore concluded that Couche-Tard could not be held liable for the initial discharge of petroleum hydrocarbons that migrated into the soil of its neighbour's land, since it was not the author of the release. The Court points out that the evidence revealed that the defendant rather attempted, as soon as it became the owner of the site, to solve the problem of contaminant migration.

Turning to the regime of article 976 CCQ, the Court of Quebec recalled that a conviction for neighbourhood disturbance requires proof of abnormal annoyances of a certain severity. However, the Court held that since the defendant had already rehabilitated the soils of the property in accordance with criterion "B" to accommodate an eventual commercial and residential use, i.e., beyond the current commercial vocation of the land, there was no abnormal neighbourhood inconvenience. In this regard, the Court noted that when the property was acquired, the adjacent gas station was in operation and that the plaintiff should have considered the risk of contaminant migration. Based on the evidence, the Court concluded that the decontamination at criterion "B" by in situ treatment was reasonable, and that the request for complete rehabilitation by excavation was not justified.

Our Comments

The Court of Quebec judgment in Société de développement du fonds immobilier du Québec v. Couche-Tard establishes that the migration of contaminants subsequent to their initial release into the environment is not a "contaminant release" within the meaning of the EQA. This conclusion is consistent with the application of the "polluter pays" principle, which is recognized in the Sustainable Development Act[5].

This decision illustrates the extent to which environmental standards, such as section 20 EQA and section 976 CCQ, require a factual, contextualized and individualized examination of each situation. The technical evidence on this subject often requires the opinion of experts, as it was the case here on issues about the type of soil remediation and the associated criteria. In analyzing liability, the court will also consider the conduct of the defendant. In this case, the proactive decontamination of the land by the defendant, according to criteria applicable in line with zoning, was retained as a determining factor in the court's decision to dismiss the claim.

For more information, please consult our Environmental, Regulatory & Aboriginal (ERA) Group.

[1] 2020 QCCQ 3080.

[2] RSQ, c Q-2

[3]Règlement sur la protection et la réhabilitation des terrains, RLRQ c Q-2, r. 37.

[4]Politique de protection des sols et de réhabilitation des terrains contaminés du Ministère de l’Environnement et de la Lutte contre les changements climatiques.

[5] RLRQ c D-8.1.1.