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Congratulations to everyone who participated in the weekend Environment Moot Court at Osgoode Hall. I was very impressed by the calibre of the students, and by the wide support that both judges and the environmental bar gave to make the event a success.

The case was the appeal to the Supreme Court of Canada from Cousins v. McColl-Frontenac, a very peculiar decision of the New Brunswick Court of Appeal. Unfortunately for environmental lawyers across the country, Mr. Cousins dropped his appeal before the hearing, so the Supreme Court never got to clarify the law on damages for sites that were already contaminated prior to purchase. The moot gave us all the chance to leap into the resulting gap, and to imagine how the case might best have been argued, and decided. We all learned something.

One fundamental issue of Cousins is when damages for contaminating land can exceed the value of the land itself. Centuries ago, the relationship between a particular parcel of land and a particular owner was considered was so fundamental, and so deeply rooted, that it was treated quite differently than the ownership of mere chattels (things). The judges presumed that market value was an adequate substitute for a damaged or destroyed chattel, but were reluctant to reach the same conclusion for land.

Gradually, this difference wore away, and today the assumption is essentially the same for land as it is for chattels: if it is damaged or destroyed, one can rarely obtain more compensation than the full market value of the land or chattel. After all, with cash the injured party could go into the market and buy a more or less equivalent replacement. Exceptions are sometimes made for unique or irreplaceable properties, or those with unusual value for their particular owners.

Whatever one might think about the conduct of Mr. Cousins, his case raised a genuinely important point: should there be a different rule, specifically for the contamination of land? Should we return to the pre-mercantile emphasis on the uniqueness of land, given how long contamination can persist, and its potential impact on subsequent generations? Should “polluter pay” triumph over retroactivity and the rule of law, assuming that there is still a solvent polluter available? (It already does in government orders; should it also do so in tort?) If so, how can awards of damages be designed to ensure that they are used to actually remediate the contamination, especially since so many remediations fail? And what would prevent subsequent lawsuits against the same polluter by subsequent owners of the same property, as detection methods and regulatory standards become more sensitive?

The environmental bar has argued about these principles for more than 20 years, so they will reach the Supreme Court of Canada sooner or later. It was fun doing a dry run.

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