William Deavitt and Wendy Deavitt v. Terry Floyd Greenly et al., 2016 ONSC 1693

CITATION: William Deavitt and Wendy Deavitt - and - Terry Floyd Greenly, Sandra Lynn Greenly, Terratec Environmental Ltd./American Water, Tri-Land Environmental (1529086 Ontario Limited), Corporation of the Town of Cobourg, Cobourg Water Pollution control Plants #1 and #2, Corporation of the Municipality of Trent Hills, Dr. Lynn Noseworthy and Her Majesty the Queen in Right of Ontario – and – Terratec Environmental Ltd. and 1529086 Ontario Limited, carrying on business as Triland Environmental, 2016 ONSC 1693

COURT FILE NO.: 125/09A

DATE: 20160324

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

William Deavitt and Wendy Deavitt

Plaintiffs

– and –

Terry Floyd Greenly, Sandra Lynn Greenly, Terratec Environmental Ltd./American Water, Tri-Land Environmental (1529086 Ontario Limited), Corporation of the town of Cobourg, Cobourg Water Pollution )control Plants #1 and #2, Corporation of the Municipality of Trent Hills, Dr. Lynn Noseworthy and Her Majesty the Queen in Right of Ontario

Defendants

• and –

Terratec Environmental Ltd. and 1529086 Ontario Limited, carrying on business as Triland Environmental

Donald Good, for the Plaintiffs

Nolan Downer (on behalf of Stephen Brogden) for Defendant, Terry Greenly and Sandra Greenly and Kristin Muszynski (on behalf of Jeffrey Paine), for the Defendant Corporation of the Town of Cobourg

Nobody appearing on behalf of the Third Parties

HEARD: February 17, 2016

b. g. Macdougall, j.

[1] The defendants, Terry Floyd Greenly and Sandra Lynn Greenly (the Greenlys) and the Town of Cobourg (Cobourg), bring motions for Summary Judgment seeking to dismiss the plaintiffs’ action against them.

[2] The plaintiffs allege that they, along with a number of animals on their farm, suffered illnesses and that the plaintiffs suffered economic loss, as result of the Greenlys applying biosolids on the Greenly farm property, which property abutted the plaintiffs’ 7 acre hobby farm in around August 2007.

[3] At the time the plaintiffs instituted their claim, they were self-represented. In their Statement of Claim, the plaintiffs seek damages under several heads of damages and allege that the subject defendants are liable for damages for :

(i) Trespass to property;

(ii) escape of a mischievous substance, the Rule in Rylands v Fletcher;

(iii) negligence; and,

(iv) nuisance.

[4] The damage claims set out in paragraph 25 of the Statement of Claim, in addition to their claim for non-pecuniary damages, include damages for:

a. loss of market value of the farm together with consequential costs arising out of the exercise by the mortgagee of power of sale;

b. renovation costs;

c. loss of economic value of the horse, Santos;

d. costs of veterinary care for livestock;

e. cost of medical treatment for Wendy Deavitt;

f. relocation cost for the Deavitt’s and their animals;

g. board for seven horses at $500 per month.

Background

[5] In 2001, the plaintiffs purchased their 7 acre rural property in the Municipality of Trent Hills in the County of Northumberland.

[6] The Greenlys, were farmers and the defendant, Terry Greenly, had taken over a family farm and with the co-defendant, Sandra Greenly, they operated their farming business including 50 milk cows and farming 400 acres for cash crops.

[7] The Greenly farm was identified as being broken into two sections, “Field 1” which does not border on the plaintiffs’ land and “Field 2” which borders the north and east sides of the plaintiffs’ property.

[8] The Greenlys became aware that Cobourg wished to take biosolids from their Water Pollution Control Plants and have them applied to certified agricultural lands at no cost to the farmer.

[9] Cobourg provided the Greenlys with a letter informing the Greenlys that:

• the spreading of biosolids was safe;
• the spreading of biosolids from Cobourg’s Water Pollution Control Plants have been applied to certified lands for over than 30 years;
• the biosolids used in Cobourg were sampled and analysed monthly and met all the requirements of the Nutrient Management Act; and,
• during application of the biosolids to the land, the process was to be continually monitored to ensure all regulations were adhered to.

[10] Prior to the biosolids being spread on the Greenly farm, an inspection of the Greenly property was conducted by the Ministry of the Environment (MOE) to determine whether the Greenly site was suitable for the application of biosolids, and to identify any site limitations for that use. The inspection confirmed that it was suitable provided the conditions set out in the Provisional Certificate of Approval were complied with, for both Fields 1 and 2.

[11] In the MOE’s Provisional Certificate of Approval, it provided that biosolids shall not be spread on any approved lands within:

• 90 metres of any individual residences and within 450 metres of a residential area;
• 100 metres of any surface water;
• 15 metres from any drilled well that has a depth of at least 15 metres and a watertight casing to a depth of at least 6 metres below ground level; and 90 metres from all other wells, including dug wells.

[12] In the Ministry of the Environment Biosolids Inspection Report, completed on November 7, 2005, with respect to the Greenly Field 1, the Report provided that as the company that was retained by Cobourg to apply the biosolids had requested a reduced minimum separation distance to an individual residence, provided that the biosolids were to be injected, or immediately incorporated into the soil using the aerway tool, the minimum separation distance was reduced to 25 metres.

[13] The report who alsoprovided with respect to Field 1:

There are 4 seasonally wet areas within/adjacent to this field. There is a seasonally wet area along the north edge of the field in the western portion, a seasonally wet area within the field along the west edge of the field in the northern portion, a seasonally wet roadside ditch along the southern edge of the field and a seasonally wet area running across the field from west to east in the southern portion of the field. None of these areas contain vegetation normally associated with wet areas.

[14] Again, the report indicated that the company retained by Cobourg to apply the biosolids had requested a minimum separation distance of 20 metres to surface water provided that biosolids were injected, or immediately incorporated into the soil using the “aerway tool”.

[15] The report provided, (partially in bold type):

That 20 m setback request is granted for injection or incorporation only. The setback using the aerway tool is a minimum of 50 m. Otherwise, a minimum separation distance of at least 100 metres must be maintained (3 – 6% slope) between the seasonally wet areas in the area of biosolids spreading, if water is present or likely to be present, as per the Guideline.”

There are two slopes in excess of 9% within this field. One is located in the southwest corner of the field and the others located along the east edge of the field in the central portion. As stated in the “Guidelines for the Utilization of Biosolids and Other Wastes on Agricultural Land” (March 1996), biosolids shall not be land applied on slopes greater than 9%.

[16] Biosolids were applied to the Greenlys’ land numerous times between 2005 and 2007.

[17] The applications of the biosolids were inspected by inspectors from Cobourg and from the MOE.

[18] Claims in respect of applications of biosolids on the Greenlys’ fields, up to and including the application of May 2007, have been deemed to be statute barred by virtue of the Limitations Act as per my Endorsement dated, September 16, 2015.

Procedural History

[19] The defendants, the Greenlys and Cobourg, initially brought Summary Judgment motions before me, seeking a dismissal of the plaintiffs’ claims as:

i) the plaintiffs’ claims were discoverable prior to October 21, 2007 and are therefore statute barred pursuant to the provisions of the Limitations Act, (the Limitations Act motions) and;

ii) the claims raise no genuine issue requiring a trial ( the Dismissal motions).

[20] I bifurcated the motions and dealt firstly with the Limitations Act motions. As noted, I ruled that the applications of biosolids on the Greenly’s property up to May 2007 and including the application of May 2007 were statute barred by the Limitations Act.

[21] The Greenlys, and Cobourg sought leave to appeal my decision which was denied by Corkery J. on May 27, 2015.

[22] Counsel now wish to proceed with the second part of the bifurcated motions, the Dismissal motions, where the defendants, the Greenlys, and Cobourg are seeking under Rule 20 Summary Judgment motion a dismissal of the plaintiffs’ claims as there is no genuine issue requiring a trial.

[23] In my September 16, 2014 Endorsement, there are several paragraphs that are relevant to the Dismissal motions:

[30] In Wendy Deavitt’s affidavit, with respect to the biosolids that were spread on the defendant Greenlys’ property adjacent to their property on August 13-14 and 15th 2007, she alleges that the Greenly’s “… did not incorporate the biosolids into the soil and it remained on the surface for the fall of 2007 and winter months of 2008.” She further states that both she and the plaintiff, William Deavitt, both experienced, “the nauseating smell of the sewage sludge through the fall and winter months of 2007 and 2008.”

[31] She further states that she observed runoff from the Greenly’s fields running onto their property during rainfall events in the fall of 2007 and during the spring runoff in this spring of 2008. She also states that the odour from the biosolids was so pervasive that she could not enjoy being outside and this continued until the spring seeding of 2008 when the defendant, Greenly, worked the sewage sludge into the soil during the seeding process.

[32] In paragraph 11 of her affidavit she states: “I stated and verily believe that up until the spring of 2008, I continued to breathe in and absorb noxious chemicals and/or compounds into my body that came from the sewage sludge that remained on the fields from the application of sewage sludge in August 2007.”

[33]As noted earlier, attached as exhibits to her affidavit are photographs that she states she took in the fall of 2007 and in the spring of 2008 which she states shows the sewage sludge on the surface of the defendant, Greenlys’, fields.

[34] The photograph, dated February 28 2008, purportedly shows a large pool that developed on the Greenly field near the boundary of the plaintiffs’ property.

[35] The spreading of biosolids are subject to conditions that were set out in the Provisional Certificate of Approval issued by the Ministry of the Environment, dated November 18, 2005, for the defendant, Greenlys’, property. There are different setbacks from the neighbouring property depending on whether the biosolids are spread on the surface of the property or injected into the soil.

[36] The Biosolids Site Inspection Report, prepared by officials for Cobourg, dated August 14, 2007, confirms that the biosolids application spread that day were spread “on the surface”. The same method was used on August 15, 2007.

[44] In conducting the analysis in this Summary Judgment motions on the limitation issue with the power to weigh evidence, draw reasonable inferences and assess credibility, taking into account proportionality, timelines and the affordability of access to justice, I note the following evidence before me: (See: Hryniak v. Mauldin )

• the biosolids applications in August 2007 were applied to the surface and not injected into the soil on the Greenly fields.

• As a result of the application on August 15th, 2007, there was an odour detected and described in the Biosolid Inspection Report 2007 prepared by Cobourg’s official as “not a terribly strong odour”. The checklist under Observations: lists- “Absence of odours”-Acceptable/Unacceptable. The Report has “Absence of odours” checked as Acceptable. The report is confusing as it would appear that “Absence of odours” asks whether or not there are odours and if so are they “Acceptable” or “Unacceptable”. This leaves open the question, acceptable or not unacceptable based on what criteria and in whose judgment?

• The defendants’ response to the plaintiffs’ allegation of the nature of the odours does not allow for a finding that the complained of odours from the August 2007 biosolids application dissipated prior to October 21, 2019; that is, outside the limitation period.

• The plaintiff, Wendy Deavitt, attests that the biosolids remained in the Greenlys’ field until the spring of 2008 and that the noxious odour “… continued to travel to our property up until the spring seeding in 2008”.

• The plaintiff has filed photographs taken by her, in the fall of 2007 and the spring of 2008, purporting to show the biosolids on the surface “pooling” on the Greenly field.

Further Additional Facts

[24] On August 13^th, 14^th and 15^th 2007, biosolids were surface spread on the defendant Greenlys’ fields. An inspection report was prepared by Cobourg staff which noted that representatives from the MOE were on site on August 15, 2007. An inspector from Cobourg reported that she had no concerns about odour, and noted that the setbacks around the plaintiffs’ property were “voluntarily increased by 45 meters beyond the “Certificate-required” distance”.

[25] On August 14, 2007, the plaintiff, Wendy Deavitt, called the MOE complaining about the spreading of biosolids that were spread in May 2007. On August 15, 2007 her complaint was logged with the MOE about the odour of the material being spread. A MOE Incident Report relating to the August 15 2007 complaint notes the MOE inspection “found odours to be insignificant”.

[26] Biosolids were again spread on one of the Deavitts’ fields on August 16, 2007 and once again an increased setback was voluntarily used. No biosolids were spread on any of the defendant Deavitts’ fields since August 16, 2007.

[27] With respect to the spreading of biosolids on August 13^th , 14^th and 15^th, 2007, Wendy Deavitt, in her February 8, 2016 affidavit, describes the smell from the biosolids as, “absolutely horrible. The smell was so bad that I could not control my urge to vomit whenever I was outside. By September – October 2007, the smell was still so bad it was like it just happened”.

[28] Wendy Deavitt further attested that the Greenlys did not “incorporate” the biosolids into the soil and the biosolids remained on the surface through the fall of 2007 and winter months of 2008. She observed runoff from Greenlys’ fields running onto her property during rainfall events in the fall of 2007. She also states in her affidavit that she observed additional runoff coming from the Greenlys, fields during the spring runoff in the spring of 2008.

[29] Wendy Deavitt further attests that the odour from the sewage sludge “was so pervasive she could not enjoy being outside” and that “…the effect continued until the spring seeding of 2008 when the Greenlys worked the sewage sludge into the soil during the crop seeding process.”

[30] As noted earlier, Wendy Deavitt alleges serious health concerns both for herself and for other members of her family. She also alleges that the animals that were on the Deavitt property also became ill which she attributes to the biosolids having been spread on the Greenleys’ property, some of which seeped onto the Deavitts’ property.

Inspection Reports

(a) Cobourg Inspection Reports

Cobourg had an inspector attend the Greenly Farm on August 13, 14, 15 and 16, 2007 and the inspector completed a “Biosolids Site Inspection Report 2007”. This was a one page form with several sections to be completed under various subheadings (the relevant ones are set out below in “bold”)

(i) August 13, 2007 Biosolids Site Inspection Report 2007

• Weather conditions: sunny, clear north wind.
• Restrictions: extra setback around Wendy Deavitt’s property due to her discomfort around biosolids. 90 metre setback
• Observations: not applicable as the trucks loaded with the biosolids were waiting for hoses.

(ii) August 14, 2007 Biosolids Site Inspection Report 2007

• Weather conditions: sunny, clear, breezy from the northwest.
• Restrictions: extra setback around neighbours, 90 m. all around.
• Observations: uniform distribution, absence of runoff or ponding, absence of orders, separation distances adhered to, slope restrictions adhered to all of “C of A” restrictions adhered to were all acceptable.
• Comments: [that are relevant to our case] spreading going well. Can barely see biosolids on hay.

(iii) The August 15, 2007 Biosolids Site Inspection Report 2007

• Weather conditions: sunny warm, 27° C wind 7 km/h.
• Observations: all considered acceptable.
• Comments: - a fairly strong wind from north west north, Wendy complaining about overspray onto her property. All looks good, not terribly strong odour.

(iv) The August 16, 2007 Biosolids Site Inspection Report 2007

• Weather conditions: 26° C, 12 – 15 km. north west north winds, still able to smell biosolids slightly.
• Restrictions: setback around Wendy Deavitt’s property, greater than necessary.
• Observations: all considered “acceptable”.
• Comments: T. Greenly spread farm manure onarea that we could not spread on, Wendy concerned about it, she called MOE…

[31] Cobourg’s Inspection Reports, at least for the specific days in which the inspections took place, as described above, indicate that the inspector did not observe any runoff or ponding; “odours” were described either as “acceptable” or as “not a terribly strong odour”; that the “separation distances”, “slope restrictions” and, “all of conditions in the Certificate of Approval, were adhered to”.

(b) The MOE biosolids Utilization Site Inspection Report

[32] The only Inspection Report from the MOE is dated June 6, 2006.

[33] While the Cobourg Inspector made observations on the day(s) of the August biosolids applications, there is no record of any subsequent inspections after the day of the applications. In other words, after the applications of biosolids in August 2007 were completed, the inspectors did not return to observe whether there was any “ponding” on the Greenly fields, or any run off or consider the level of any odour detected from the biosolids.

[34] In the affidavit of Terry Greenly, he does not contradict Wendy Deavitt’s observations of ponding of biosolids and the “offensive odours” she says she detected in the period after the August 2007 biosolids applications. Terry Greenly relies on the Cobourg Inspector’s reports referred to above, that were restricted to the actual days when the biosolids were applied.

Summary Judgment Motions

[35] The law, as set out in the Supreme Court decision in Hyrniak v. Mauldin, 2014 SCC 7, is helpfully summarized in the defendants’ Greenlys’ factum.

• The rules providing for summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
• The issue is whether there is a genuine issue requiring a trial. The threshold will be met where the motions judge is able to reach a fair and just determination on the merits on a motion for summary judgment. The evidence need not be equivalent to that which would be present at the trial but must be such that the motions judge is confident that the judge can fairly resolve the dispute.
• Deciding whether summary judgment should be granted, the motion judge must first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides the evidence required to fairly and justly adjudicate the dispute in a timely, affordable and proportionate procedure.
• If there appears to be a genuine issue requiring a trial, the motions judge should then determine if the need for a trial can be avoided by using the new power set out in Rule 20, provided that the use of these powers is not against the interests of justice. These powers are presumptively available and their use is discretionary.

[36] Each party must put its best foot forward and a party is “not entitled to sit back and rely upon the possibility that more favourable facts may develop a trial”. See also: Diler v Heath, 2012 ONSC 3017 (SupCt J).

The Plaintiffs’ Claims – Libability Issues

(i) The Claim of Trespass

[37] Trespass to property is an intentional tort that involves the unjustified and direct interference by force with another person’s land. The force must be directly applied to the land. Non-physical interferences such as vibrations, noise, fumes and odours do not constitute trespass. The defendant’s act need not be intentional, but it must be voluntary. Trespass is actionable without proof of damage. While some form of physical entry onto or contact with the plaintiffs’ land is essential to constitute trespass, the act may involve placing or propelling an object or discharging some substance onto the plaintiff’s land which can constitute trespass.

See: Lewis v. Klar Tort Law, 4^th ed. (Toronto: Thompson Carswell, 2008)

at 106-113.

Analysis

[38] Wendy Deavitt was vigilant in monitoring the numerous applications of the biosolids on the Greenlys’ fields, beginning in 2005 at the time of the first biosolids application. From the beginning of the biosolids applications she complained to the Greenlys, the company that applied the biosolids, Cobourg, the MOE and to other government officials.

[39] She observed the visual results of the biosolids applications and detected accompanying odours after the biosolids were spread on the Greenly fields.

[40] In her February 8, 2016 affidavit, Wendy Deavitt swore that she witnessed “contaminated runoff”coming from the Greenly fields and “seeping” onto the Deavitt property at least until February 2008 and she took photographs of the “runoff.”

[41] As previously noted, the MOE issued a Provisional Certificate of Approval for an Organic Soil Conditioning Site to Cobourg on November 18, 2005.

[42] The Provisional Certificate of Approval was subject to a number of conditions set out in the Provisional Certificate, including:

(6) Biosolids application must be undertaken in a matter to provide uniform spreading on any field approved for this site and must be performed in such a manner and under such conditions that the biosolids will not flow off the field or create runoff that would carry biosolids off the field. Dumping of solids is not permitted.

(7) When biosolids are applied to tilled fields, they shall be incorporated into the soil, within 48 hours of application. [My emphasis].

(8) Biosolids shall not be spread on any approved lands within 100 metres of any surface water (per the Nutrient Management Act).

(9) Biosolids shall not be spread on lands approved by this Provisional Certificate of Approval at times when a static groundwater level is less than 0.9 m (3 feet) below ground surface.

[43] The Greenlys did not have tilled fields where the biosolids were spread.

[44] In the Provisional Certificate of Approval, the certificate sets out the reasons for the imposition of conditions. With respect to conditions 6-11, the Provisional Certificate states that those conditions are included, “to avoid degradation of the natural environment and nuisance to property owners.” [Emphasis added].

[45] I note in paragraph 16 of the Provisional Certificate of Approval, it provided:

Requirements specific to this Provisional Certificate of Approval are minimum requirements and do not abrogate the need to take all reasonable steps to avoid violating the provisions of the applicable legislation. [My Emphasis].

[46] The Greenlys, submit that there is no evidence to suggest that biosolids were ever applied to the plaintiffs’ lands and that every inspection concluded that that proper application of the biosolids took place and that no biosolids ever escaped the Greenly property intentionally or otherwise. Further, Wendy Deavitt conceded in her Examination for Discovery that setbacks were always adhered to and that she never saw biosolids applied to the plaintiffs’ land.

[47] The liquid, as illustrated in the photograph taken by Wendy Deavitt shows a liquid substance on the Greenlys’ property.

[48] In paragraph 14 of Wendy Deavitt’s affidavit sworn February 8, 2016 she states:

The photograph dated February 28, 2008 shows a large pond that developed on the Greenly field near the boundary with our property. This pond was full of a black liquid and the odour from the pond was nauseating. I also notice seepage from the pond onto our property.

[49] There is evidence from the Terry Greenly, and corroborated by Wendy Deavitt, that he did spread liquid manure over the “setback area” adjacent to the plaintiffs’ property where biosolids had not been spread.

[50] As the defendants have pointed out, other than Wendy Deavitt’s statement that she saw this liquid seeping onto her property, there is no other evidence as to what the liquid consists of as there were no samples taken of the liquid and tested by the plaintiffs.

[51] Obviously, if the liquid consisted only of melting snow or water, that would not constitute a trespass. Although Wendy Deavitt describes the liquid as “contaminated” I note that there is no confirmatory evidence that the liquids were the biosolids or were contaminated liquids.

Ruling on the Trespass Claim

[52] After factoring in the “limits” of the evidence available to the plaintiffs, I find that there is evidence available more than what the defendants submit is, “an affidavit containing bald, self-serving allegations”.

[53] The Deavitt property located next to the Greenly fields is at a lower elevation in the area closest to the Deavitts property at a slope measured by the MOE at greater than 9%. If there was ponding of biosolids on the Greenly fields, a reasonable inference could be drawn that that there could well have been seepage of biosolids onto the Plaintiffs’ property which would constitute a trespass.

[54] The Greenlys have a responsibility to see that the biosolids do not seep onto the neighbour’s property. As well, Cobourg’s agent, the company that spread the biosolids was required to ensure that the spreading of the biosolids did not seep onto the neighbour’s property.

[55] Bearing in mind the principles set out above from the Hyrniak decision, I am satisfied that the trespass liability issue is an issue requiring a trial. I am unable to have a full appreciation of the evidence that is required to make dispositive findings on a summary judgment motion having taken into account whether the dispute on this issue could be fairly and justly adjudicated in a timely, affordable and proportionate procedure. The defendants’ motion on this issue is therefore dismissed.

(ii) The Claim Pursuant to the Rule in Rylands v. Fletcher:

[56] The Rule in Rylands v. Fletcher imposes strict liability for damages caused to a plaintiff’s property by the escape from the defendant’s property of a substance “likely to cause mischief” See: Smith v Inco Limited, 2011, ONCA 628.

[57] For the Rule in Rylands v Fletcher to apply, the plaintiffs must show that the Greenlys made a non-natural use of their land by bringing something onto their land which was likely to cause damage if it escaped and that the escape of that substance did in fact cause the plaintiffs’ damages.

[58] The plaintiffs have not provided any evidence that, if accepted, could demonstrate that the spreading of biosolids on a farmer’s field could constitute a “non-natural” use of their farm fields. In my view, the use by a farmer of fertilizer/nutrients/pesticides on a farm field would not constitute “non-natural” use of the property and the Plaintiffs’ claim on the Rylands v. Fletcher Rule would fail for that reason alone.

[59] As well, there is no cogent evidence before me that biosolids or the odour from biosolids could be considered a “dangerous product” escaping onto the neighbour’s property.

[60] The Plaintiffs’ claim under the Rylands v. Fletcher Rule is accordingly dismissed.

iii) The Negligence Claims against the Defendants, the Greenly’s:

a. Against the Greenlys

[61] The Greenlys concede that they owed the plaintiffs a duty of care in these circumstances.

[62] The plaintiffs allege that the Greenlys were negligent in their application of the biosolids to their fields in that the application was “not in line with farming practices as the biosolids were applied to the surface and not properly injected into the soil.”

[63] The plaintiffs rely on the Deavitts observations of liquid “pooling on the Greenlys’ fields” along with the photographs referred to above that purportedly confirm this.

[64] The Greenlys’ position is that the application of biosolids to their fields was entirely reasonable, in line with farming practices across Ontario and in compliance with the Acts, Regulations and the Provisional Certificate of Approval. Further, they submit that they did not breach the standard of care owed to the plaintiffs. Further, that in the absence of evidence to the contrary, the standard of care for the application of biosolids to the Greenly fields was established by the requirements set out in the Provisional Certificate of Approval issued by the MOE.

[65] The Greenly’s further submit that the evidence establishes that the application of biosolids to their fields complied with the Provisional Certificate of Approval in all respects.

[66] In addition to submitting that the plaintiffs have not established a breach of the standard of care, the defendant, the Greenlys, submit that the plaintiffs have not provided any evidence to establish that any of their alleged damages were caused by the application of biosolids to the Greenly lands.

Discussion

[67] The Provisional Certificate of Approval issued by the MOE did not require that the biosolids be incorporated into the soil when the fields were not tilled. However, as noted earlier, if biosolids were to be injected or incorporated the fields using an “aerway tool” in an area of a residence or in areas that were “seasonally wet”, the MOE reduced the usual setback to 20 metres. The plaintiffs’ residence was in the area and there were 4 seasonally wet areas identified by the MOE.

[68] In this case, the August 2007 biosolids applications were “top spread”. This would mean the setback from a residence would be 90 metres and from the 4 “seasonally wet” areas, a setback of 100 metres was to be maintained. Also, the the MOE had identified 2 areas with a slope of greater than 9 degrees, where no biosolids were to be applied.

[69] As noted earlier with respect to the plaintiffs’ allegation that the biosolids at times pooled on the Greenly fields, the plaintiffs rely on Wendy Deavitt’s observations and the photographs referred to in her affidavit.

[70] As referred to above, the Cobourg inspector’s observations were restricted to the days when the biosolids were spread and there does not appear that there was any subsequent inspection of the Greenly fields after the applications were completed.

[71] Although the inspector from the MOE did attend on site during the August 2007 application, there is no inspection report by the MOE inspector filed for the August 2007 applications.

[72] The evidence filed on the motions by the defendants on whether any of the biosolids did or did not seep onto the Plaintiffs’ lands is restricted to: i) the conditions that the MOE set out in the Provisional Certificate of Approval that the defendant say were complied with, however, as noted earlier, the inspections were restricted to the application days and none thereafter; and, ii) Greenly attesting that “all conditions were complied with”.

[73] The defendants also rely on the “voluntary” increased set back to 90 metres, however, as noted above with “surface spreading” of the biosolids in August 2007, the setback from the 2 “seasonally wet” areas was to be 100 metres.

[74] In my view, as stated in my prior Endorsement on the Limitation Act motions, it would be open to the court to accept Wendy Deavitt’s testimony that she did observe biosolids “pooling” on the Greenly fields after the biosolid applications, and then subsequently observed the biosolids seeping onto her property after the August 2007 biosolids applications.

[75] Again, as noted earlier, the MOE conditions applicable to the use of biosolids are “minimum” conditions only and therefore to only say in response to an allegation of negligence, “I followed the conditions,” might not be a complete answer to whether or not, in these particular circumstances, that satisfies the acknowledged “duty of care”.

[76] I find that the negligence issue, against the Greenlys, is a genuine issue requiring a trial. The evidence before me does not qualify for a fair and justly adjudication of this issue even taking into account the, “timely, affordable, and proportionate” factors set in Hyrniak.

[77] The Greenly summary judgment motion on the negligence issue is therefore dismissed.

b. The Negligence Claim against Cobourg

[78] The plaintiffs further allege that there is an implied statutory duty of care of the municipality to the plaintiffs with respect to the duty to protect public health and safety and prevent adverse effects as related to environmental issues and contaminated lands.

[79] The plaintiffs’ further allege, more specifically, that because Cobourg permitted the spread of biosolids on of the Greenlys’ fields from Cobourg’s Sewage Treatment Plant, this also resulted in a duty of care.

[80] On the evidence before me, I find that the biosolids were processed and treated as required under the applicable legislation. There is no evidence that the Cobourg did not comply with all of the provincial requirements with respect to the testing and sampling as required by the provincial legislation.

[81] However, as stated above, the conditions set out in the Provisional Certificate of Approval were “minimum conditions” so, even if they were complied with, they may not have been adequate in the particular circumstances of this case.

[82] As well, Cobourg contracted with an agent to apply the biosolids and, if the applications of the biosolids were in some way improper or negligently done, Cobourg could be responsible.

[83] It would also be open for the plaintiffs to argue that, given that the plaintiffs’ property was at a lower elevation than the Greenly fields, and that the MOE had noted that in an area of the Greenly fields closest to the plaintiffs’ property, there was a greater than 9% slope, combined with the fact that the biosolids were spread on the fields as opposed to being incorporated into the soils, it could be reasonably argued that this particular situation required the Cobourg’s inspector to return to the site after the applications to confirm that there was no “ponding” or seepage of the biosolids from the Greenly fields. This did not happen here.

[84] With respect to the plaintiff’s claim of negligence against Cobourg, there is evidence before me to confirm that the plaintiffs could be successful in establishing that the duty of care on Cobourg was breached if it is found that there was seepage of the biosolids onto the plaintiff’s property.

[85] For the reasons set out above regarding the issue of negligence of the Greenlys, I am of same view that this issue requires a trial and Cobourg’s summary judgment motion on this issue is also dismissed.

The Nuisance Claims

[86] The plaintiffs, in paragraph 52 of their factum summarize their claim in nuisance:

The essence of the nuisance in this case is the transmission of a noxious substance from the Greenly farm to the Deavitt property with the effect that the Deavitts have had their enjoyment of their property interfered with.

The Law of Nuisance

[87] The Ontario Court of Appeal in the recent case of Smith v. Inco, supra, the Court summarized the law of nuisance. [Citations omitted]

39. People do not live in splendid isolation from one another. One person's lawful and reasonable use of his or her property may indirectly harm the property of another or interfere with that person's ability to fully use and enjoy his or her property. The common law of nuisance developed as a means by which those competing interests could be addressed, and one given legal priority over the other. Under the common law of nuisance, sometimes the person whose property suffered the adverse effects is expected to tolerate those effects as the price of membership in the larger community. Sometimes, however, the party causing the adverse effect can be compelled, even if his or her conduct is lawful and reasonable, to desist from engaging in that conduct and to compensate the other party for any harm caused to that person's property. In essence, the common law of nuisance decided which party's interest must give way. That determination is made by asking whether in all the circumstances the harm caused or the interference done to one person's property by the other person's use of his or her property is unreasonable.

40. The reasonableness inquiry focuses on the effect of the defendant's conduct on the property rights of the plaintiff. Nuisance, unlike negligence, does not focus on or characterize the defendant's conduct. The defendant's conduct may be reasonable and yet result in an unreasonable interference with the plaintiff's property rights. The characterization of the defendant's conduct is relevant only to the extent that it impacts on the proper characterization of the nature of the interference with the plaintiff's property rights.

[88] Damages for injury to health can be recovered in an action for nuisance if there is an unreasonable interference with the use and enjoyment of land. See: Canadian Tort Law 9^th ed. p.580.

[89] Even if the plaintiffs were unable to prove that the Greenly spreading of biosolids did not cause physical damage to the plaintiffs’ property, they could still assert a claim for damages for “ amenity nuisance”, that is, that the odour from the biosolids substantially interfered with the use and enjoyment of their lands.

[90] In Pyke v. Tri Gro Enterprises Ltd. [1999] O.J. No.3217, Ferguson J. was dealing with a claim in nuisance by neighbouring property owners regarding odours emanating from the defendant’s mushroom farm.

[91] Under the subheading: “Do the odours constitute a nuisance? The law of nuisance”, Ferguson J. stated:

201 The material claim of the plaintiffs is about odours. There is no doubt that odours can be the subject of a claim in nuisance.

202 The fundamental issue in a nuisance claim is whether, taking into account all the circumstances, there has been an unreasonable interference with the use and enjoyment of the plaintiffs' land.

203 In this case, the plaintiffs rely on the alleged injury to their health, comfort and convenience, and the alleged depreciation of the resale value of their lands.

204 To establish nuisance, the plaintiffs must show substantial interference which would not be tolerated by the ordinary occupier in their location. The test is objective. The interference must be repeated or continuous.

205 In considering the interference, the court must consider the type of interference, the severity, the duration, the character of the neighbourhood and the sensitivity of the plaintiffs' use of their lands. With respect to the severity of the interference, it is not actionable if it is a substantial interference only because of the plaintiff's special sensibilities. With respect to the character of the neighbourhood, the court should consider the zoning, whether the defendant's conduct changed the character of the neighbourhood and the reactions of other persons in the neighbourhood.

206 The court must balance these considerations against the value of the defendant's enterprise to the public and the defendant's attitude toward its neighbour. The court must consider whether the defendant is using the property reasonably having regard to the fact that the defendant has neighbours. The court should consider whether the defendant took all reasonable precautions.

207 The defence raised some arguments to the effect that the agricultural zoning barred a claim in nuisance. This is not so. A person's conduct can comply with zoning requirements but still produce a nuisance.

213 Considering all these factors, I find that the defendants' operation has caused an unreasonable interference with the use and enjoyment of the plaintiffs' lands by producing offensive odours. The odours constitute a nuisance at common law.

Discussion

[92] Again, with respect to this claim, plaintiffs rely on the affidavit of Wendy Deavitt which describes the odours that she detected from the biosolids spread on the Greenly property and the effect it had on her with respect to the enjoyment of her property. She also describes the actions she took with respect to her complaints raised because of these objectionable odours emanating from the Greenly property after the biosolids were spread on the fields.

[93] As noted above, that there are a number of conditions that affect the use of biosolids on agricultural property. The Provisional Certificate of Approval for an Organic Soil Conditioning Site specifically explained the reasons for the numerous conditions set out regarding how the biosolids are to be applied and where they cannot be applied.

[94] The conditions included: setbacks; concerns about the normal infiltration rate; concerns about the location of any well including either a dug or drilled well; the location of adjacent residences; the location of surface water; concerns about the slope of the land, all of which were described as being required, “to avoid degradation of the natural environment and nuisance to property owners”. [Emphasis added]

[95] Further, I note in the MOE’s Biosolids Utilization Site Inspection Report, the report required, among other things, that the inspector was to observe and report on “off site odours being generated”.

[96] As referred to above, also with respect to Cobourg’s Biosolids Site Inspection Report 2007 form, that form required determination as to whether “absence of odours” was either” acceptable” or “not acceptable” along with “weather conditions” restrictions.

[97] In several of the reports completed by the inspector for Cobourg, the inspector made a notation regarding the wind and the direction from which the wind was blowing.

[98] I note that with respect to the whether there was a wind and the direction of the wind, the plaintiffs’ property is situate south and east of the Greenly fields. In the December 14 and 16^th 2007 reports, the inspection reports indicate that, “it was breezy coming from the northwest”. For the August 14^th application, the wind was 12 to 15 km an hour and for the August 16th application, “the wind was reported as coming from the north west/north.” The August 15^th report did not mention wind.

[99] With respect to “the absence of odours” issue, to repeat, for August 14, 2007 - Acceptable was checked with the notation “can barely see biosolids on hay.” For August 15, 2007-“Absence of Odours” was checked as, Acceptable and the notation: “not a terribly strong odour”. For August 16, 2007 –‘Absence of Odours” was checked as, Acceptable. An affidavit was filed by the Cobourg inspector confirming her observation/detection of odours as described above.

[100] I note that the Greenlys in their material, do not comment on whether or not they personally detected odours from the biosolids spread on their fields either on the days of the applications or in the days/weeks or months following.

[101] In my view, it is obvious that from reviewing the MOE’s documentation filed in this case, there was a concern about odours emanating from the biosolids spread on the fields and the effect that the odours from spreading of biosolids could have on any neighbours and specifically alluded to the issue of “nuisance”.

[102] In other words, there is a reasonable inference available that biosolids do have an unpleasant odour and that the odour could have a negative effect on neighbours residing close to the fields where the biosolids are being spread, and that this could affect a neighbour’s use and enjoyment of their property.

[103] In this case as previously noted, most of the biosolids for the relevant period of time were “surface spread” on the untilled Greenly fields. If the fields had been tilled, the biosolids had to be incorporated into the soil within 48 hours.

[104] As noted, the Inspection Report form specifically sought observations as to whether there was any evidence of ponding. This implies that if there was odours from “ponded biosolids” this could cause a prolongation of the odours and there could also be a potential problem of seepage of the biosolids if there was a sloping of the field towards the neighbouring land, as in this case.

[105] The plaintiff has stated and has presented photographs of what appear to corroborate her observations that there were biosolids that were ponding on the Greenly fields for some period of time after the application of the biosolids. If that evidence is accepted, then the inference that could be drawn is that the application of biosolids was not properly done in accordance with the guidelines or there may have been too much surface spread biosolids for the nature the soil.

[106] Wendy Devitt states that the “nuisance period” created by the application of biosolids that occurred in August 2007 continued until their spring plowing in the spring of 2008 when the last application of biosolids was incorporated into the soil.

[107] While it may be that the odour from the application of biosolids on a neighbouring farm property emits offensive odours but only for a relatively short period of time until they are either incorporated into the soil and do not lay on the surface in a ponding form, would not constitute a nuisance, biosolids that remain on the surface for a prolonged period and continue to emit offensive odours wafting onto a neighbour’s property could constitute a legal nuisance.

[108] In a material, other than what the Cobourg inspector detected either at the time of the application of the biosolids or very shortly thereafter, there is no other contradictory evidence that there were no noxious odours emanating from the August 2007 application of biosolids over the ensuing weeks and months. In my view, therefore, it would be open to the trier of fact to the accept Wendy Devitt’s evidence as to the persistence and nature of the odours and her evidence of how those odours “substantially interfered with her use and enjoyment of her property”. In that case, the plaintiffs would have made out their claim for nuisance.

[109] If the claim for nuisance was made out, that would mean that the nuisance emanated from the Greenlys’ property resulted in their liability, the question is whether Cobourg might also be liable for nuisance.

[110] On the material before me, as a result of Cobourg’s invitation to the defendant, Greenlys, to apply the biosolids on their fields and the Greenlys acceptance, Cobourg then had the responsibility to ensure that the biosolids were applied in a manner that would not result in a legal nuisance to any abutting landowners including the plaintiffs.

[111] I find the plaintiffs’ claim alleging legal nuisance against the defendants, the Greenlys and Cobourg, also requires a trial, given the nature of the evidence to be considered, and again taking into account the Hyrniak factors, this issue is not one to be disposed of by way of a Summary Judgment motion.

[112] Only as an aside, I noted that on the nuisance issue relating to alleged “offensive odours” emanating from the spread of biosolids, since 2012, there have been significant regulatory changes enacted under the Nutrient Management Act that requires that an independent panel test the “level of offensiveness” of the odour from samples of the biosolids intended for application. The Regulations create 3 “categories” of odours. As the “offensiveness” of the odours increases, the setbacks required for the applications, depending on whether the biosolids are spread on the fields with “incorporation” into the field shortly after or injected or when there is no incorporation, significantly increase. The highest category of offensiveness of the odour (Category 3) now requires a setback from a residence to be 450 m and the biosolids are to be incorporated into the soil within 24 hours. See: Nutrient Management Act, Ontario Regulation 267/03 s.47.

The Plaintiffs’ Damage Claims

[113] As set out above, the plaintiffs have claimed numerous heads of damages. A number of which would likely require expert evidence to substantiate causation. It appears at this point that the plaintiffs do not have any expert reports.

[114] Counsel for the defendants have argued that for this reason, among other arguments, the plaintiffs’ claims should be dismissed at this stage.

[115] Considering the different claims of trespass, negligence and nuisance that I have found required a trial and if successful at the liability phase, would require different approaches by the Court on the causation/damages questions, in my view, it is not practical at this stage to determine whether the plaintiffs’ claims should be struck because of the “frailty” of the evidence on the “causation” issues.

Summary

[116] The defendants’ Summary Judgment motions are dismissed but for the plaintiffs claim for damages under the Rule in Rylands v Fletcher, which claim I have dismissed.

Costs

[117] If the parties cannot agree on costs, I will receive brief written submissions, no longer than 7 pages from a party seeking costs within 15 days of the release of this endorsement and reply submissions, again no longer than 7 pages within 10 days of service of the Cost submissions.

B. G. MacDougall, J.

Released: March 24, 2016

William Deavitt and Wendy Deavitt - and - Terry Floyd Greenly, Sandra Lynn Greenly, Terratec Environmental Ltd./American Water, Tri-Land Environmental (1529086 Ontario Limited), Corporation of the Town of Cobourg, Cobourg Water Pollution control Plants #1 and #2, Corporation of the Municipality of Trent Hills, Dr. Lynn Noseworthy and Her Majesty the Queen in Right of Ontario – and – Terratec Environmental Ltd. and 1529086 Ontario Limited, carrying on business as Triland Environmental

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

William Deavitt and Wendy Deavitt - and - Terry Floyd Greenly, Sandra Lynn Greenly, Terratec Environmental Ltd./American Water, Tri-Land Environmental (1529086 Ontario Limited), Corporation of the Town of Cobourg, Cobourg Water Pollution control Plants #1 and #2, Corporation of the Municipality of Trent Hills, Dr. Lynn Noseworthy and Her Majesty the Queen in Right of Ontario – and – Terratec Environmental Ltd. and 1529086 Ontario Limited, carrying on business as Triland Environmental

REASONS FOR JUDGMENT

B. G. MacDougall, J.

Released: March 24, 2016