Injunctive Relief As A Remedy For Ongoing Contamination: Ward v. Cariboo Regional District

• Published date: 17 January 2022
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Miller Thomson LLP
• Author: Ms Heather L. Jones, Steven Evans and Harleen Brar

On July 30, 2021, the British Columbia Supreme Court released reasons for judgment in Ward v. Cariboo Regional District, 2021 BCSC 1495, shedding light on the wide breadth of injunctive relief available in circumstances of ongoing environmental contamination.¹ The decision shows that a party responsible for depositing a polluting substance on another's property will bear responsibility to fix the situation, to remove that substance and remediate the property, and the legal consequences it may face if it fails to do so in a reasonable manner.²

Factual Background

The Plaintiffs are the owners of a rural residential property near Williams Lake, British Columbia (the "Property"). The Property is serviced by a gravity sewage system operated by the Defendant, the Cariboo Regional District (the "District"). In 2015, a power outage resulted in an estimated 49,000 gallons of raw sewage flooding the Property, including the Plaintiffs' basement and pasture, and resulted in contamination of their well (the "2015 Flood"). The 2015 Flood was not only the third sewage spill on the Property by the District but was by far the largest. Following the 2015 Flood, the District paid for the restoration of the Plaintiffs' basement and chlorinated the Plaintiffs' well, but took no steps to remove any sewage from the pasture or ponds, in spite of the Plaintiffs' requests. Instead, the District adopted the approach that sunlight would be sufficient to decontaminate the Property.

In 2017, the Plaintiffs commenced an action against the District in trespass, nuisance, negligence, and the cost recovery provisions of BC's Environmental Management Act, which entitles property owners to recover their costs of remediation from parties responsible for contamination. The trial was scheduled to commence on September 21, 2020. Approximately six months before trial, the Plaintiffs experienced another sewage backup after creek water flooded the sewer system via a failed manhole on the Property, causing sewage to backup into the Plaintiffs' basement (the "2020 Flood") and on to their Property. The District denied liability for the 2020 Flood and the Plaintiffs amended their claim to seek relief in respect of both sewage floods.

The Trial

A week prior to trial the District amended its Response and admitted liability for negligence, continuing trespass and continuing nuisance for the 2015 Flood, but stated that the continuing trespass and nuisance stopped on an arbitrary date some six months...