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burden that very few private property owners are going to be able to undertake," says Gillespie. McAree says the key element in the Court of Appeal decision that will create problems for plaintiffs across Canada is the court's interpretation of the Rylands concept of strict liability. Rylands was a suit launched by the owner of a mine that was flooded by water escaping from a reservoir con- structed by a neighbouring property owner. This case led the House of Lords in 1868 to develop a rule of strict liabil- ity whereby a plaintiff does not have to prove culpability or negligence, only that the tort occurred and the defen- dant was responsible for it. The law lords' reasoning was that "the neigh- bour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property." This rule has been elucidated and modified by British and Canadian courts over the years. But McAree says the Court of Appeal in Inco takes it too far away from its original intent. "The court reasoned that where a heavy industrial operation is situated in an industrialized area and did not create risks beyond that which one would expect from the opera- tion, then the plaintiff fails to establish that the operation was a non-natural use of the property." He notes that the court defined strict liability as being aimed not at all risks associated with an activ- ity but with risks associated with acci- dental and unintended consequences of engaging in an activity. On this basis, he notes, the Court of Appeal found that "because the discharge from Inco's stack was intended as part of an industrial operation in an industrial area and given Inco's compliance with all regulations during its operation, the claim in strict liability could not be made out." In the plaintiff 's leave to appeal appli- cation, they make clear that: "Canadian NEW Canadian Lawyer House Ad.indd 6 homeowners, residents, industry, regu- lators, and appellate courts really do need certainty on the following key issues: "(i) the threshold effect for liability in nuisance in the context of environmen- tal or contamination; "(ii) the requirements of 'non-natu- ral' use of land; "(iii) whether environmental statu- tory regimes are a complete code of liability; and "(iv) whether property devaluation should be a recognized claim in nui- sance." Brown says the Ontario appeal deci- sion "closes the door very significantly to environmental class action claims that are based on risk to human health caused by an environmental contaminant." But, McAree says, "I'm not entirely discour- aged because I believe the Supreme Court is going to take a look at it." Freelance journalist and business writer Kevin Marron can be reached at kevin@ kevinmarron.com. Viewable on your desktop, iPad, Android phone & more DIGITAL EDITION canadianlawyermag.com/ canadian-lawyer-digital-edition.html www.CANADIAN Lawyermag.com JAN UARY 2012 23 14/12/11 11:25 AM