Levels Of Decontamination: Courts Favour The Pragmatic Approach

On June 12, 2013, the Québec Superior Court rendered a major decision on environmental liability: Gestion Marc Ménard inc. c. Opérations Pétroles Irving ltée1 (in French only) (Ménard c. Irving). The decision sheds an interesting light on the criteria that must guide the courts regarding soil remediation, while reaffirming the importance of examining the intended land use in order to rule on the level of decontamination to be achieved.

Summary of the Facts

In 2003, the installations of the defendant, Les Opérations Pétroles Irving ltée (Irving), a petroleum products depot located in Granby, were dismantled. Since an environmental assessment confirmed the presence of contaminated soil, Irving proceeded with the decontamination of the site up to boundary between its land from that of the plaintiff, Gestion Marc Ménard inc. (Ménard). Irving also sent Ménard a notice regarding the presence, at the limit of its property, of contaminated soil at concentrations exceeding the regulatory limit values. The land belonging to Ménard is a vacant lot located in a commercial zone.

Within the context of this case, Irving's liability was admitted. The only dispute referred to the Court was the level of decontamination to be achieved. Irving said it was willing to defray the costs of decontamination appropriate to a commercial property,2 while Ménard demanded decontamination to the criteria applicable to a residential property.3 Ménard even asked the Court to go beyond the standards prescribed in the Soil Protection and Contaminated Sites Rehabilitation Policy (Policy), to require restoration of the land to the condition in which it was found before the contamination.

Decision

The Court, after setting out the decontamination criteria prescribed in the Policy, explained that in light of the evidence, the possible use that Ménard, a buyer or a...