Lambton County farmers’ suit over road salt on their fields deemed nuisance issue by court

LAMBTON—A recent ruling on road salt damage to Brooke-Alvinston farmer Joseph Steadman and his wife Evelyn’s 96-acre farm supported their claim they have suffered crop losses leading to the depreciation in value of their property due to the County of Lambton’s use of road salt. That ruling, which the county’s legal and insurance advisors have indicated is not appealable, sent shock waves across the nation.

“We’re talking about a very serious precedent here,” said Joe Tiernay, executive director of the Ontario Good Roads Association that represents nearly 450 municipalities in the province in the wake of the decision. “It just opens the floodgates.”

The Ontario Superior Court of Justice ruled in favour of the Steadmans in Sarnia, awarding the farm couple a total of $107,352 in damages. The damage award included $56,700 for the depreciation in value of their property and $45,000 for crop losses from 1998 to 2013.

But although initial reaction suggested the ruling was “precedent setting,” sober second reflection has indicated that the circumstances were not, in fact, a precedent.

“My understanding, after reviewing the remarks made by the insurer Frank Cowan, the situation presented in the County of Lambton is unique,” said Al Spacek, Federation of Northern Municipalities president and mayor of Kapuskasing. “The ruling does not change the precedent in place.”

Despite that assurance, however, OGRA, which said it would seek intervener status in an appeal, has indicated that they will be seeking legislative changes to protect municipalities.

A lot of the differences between Northern municipalities and the southern experience is in the layout of local roads and farms.

“Ditching is probably better in most of our communities, especially where you have active farms,” noted Assiginack CAO Alton Hobbs, who admitted the initial reaction to the ruling was one of serious concern. “Apparently, in southern Ontario a lot of the farm fields come right up to the road.” The buffer offered by the ditches in most Island communities goes a long way toward mitigating the impacts of road salt.

“It is frustrating,” said Mr. Hobbs. “On the one hand we have a responsibility to maintain public safety and ensure that the roads are safe to travel.”

Provincial mandates require that safety is maintained and a deviation from those regulations would open municipalities to lawsuits for not meeting their obligations should an accident occur. “You are literally caught between a rock and a hard place,” said Mr. Hobbs. “The judge has opened up a whole new avenue of concern, but there is nothing we can do about it in how we look at roads. There is no viable alternative (to road salting). There isn’t enough beet juice in the world to replace it (an alternative agricultural product to road salt being tested in some southern Ontario communities). What do you do? Have an insurance adjuster riding in the cab of your truck?”

Mr. Hobbs suggested that the province will have to step in, should it prove that the ruling places an impossible burden on municipalities. At the end of the day, said Mr. Hobbs, “it is the taxpayer who will be facing the impact of the cost this ruling could place on municipalities.”

The reason the decision was found to be not subject to appeal as precedent setting was that the finding was based on “nuisance” and not “negligence.” The distinction is that nuisance is narrowly defined in law, but OGRA is advising its members to “seek to review its practices, including roadside drainage, culverts, road salt concentrations and the use of snow fences as a way to lessen the impact on the environment.”

In the meantime, OGRA is “working with the Ontario Ministry of Transportation to seek ways to amend the Municipal Act in a way that would provide municipalities protection from what it characterized as “these nuisance claims.”