Lambton farmers awarded $106,000 for road salt property damage

Thursday, January 22, 2015

by JIM ALGIE

A $106,000 award to a Lambton County farming couple for road salt property damage could yield broader claims, Lambton County solicitor David Cribbs said Friday.

In a decision on Jan. 16, Ontario Superior Court Justice Thomas J. Carey ruled that the county must pay farmers Joseph and Evelyn Steadman for crop losses and diminished property value because of road salt contamination over a 15-year period ended in 2013. The Ontario Good Roads Association and several municipal officials have expressed concern in subsequent press reports about the Steadman case.

“Obviously there’s the potential to become a flood gate situation,” the county solicitor said in an interview. “The implication goes far beyond farming and rural areas.”

“Anyone could interpret the case as suggesting any time any road authority applies salt and that causes some sort of negative, biological impact on adjoining property . . . the road authority is liable for that,” Cribbs said.

Lawyer Robert Gray of Sarnia, who is representing the Steadman family, declined to comment because the matter of costs remains before the court. He noted that the Steadmans do not wish to discuss the case.

According to the decision, the Steadmans have farmed together for more than 40 years on 96 acres of land on Nauvoo Rd. in the Alvinston area of Lambton County.

During a 12-day trial last spring, Joseph Steadman testified he began noticing crop damage in the mid-to-late 1990s and approached county officials about the problem. Evidence at trial included salt test results, photos and videotape images of damage over several years to Steadman’s no-tilled wheat and soybean crops.

Videotaped images recorded in March 2009 showed field areas “white with salt,” the judge’s decision says. As well, the judge heard expert evidence of “elevated concentrations of sodium and chloride” in 126 soil samples taken from the Steadman farm.

A hydrologist hired by Steadman confirmed “that the transmission of the sodium-chloride to the damaged areas adjacent to the road allowance was through airborne mist, wind and surface runoff,” the judge said. Engineering evidence called by the Steadmans’ lawyer also cited poor roadside drainage in the area and the location of a culvert under Nauvoo Rd. near the couple’s home.

Carey largely dismissed expert evidence called by the county in its defence because it contained neither onsite investigation of the property nor supporting plant and soil science analysis. A defence claim that elevated salt levels on Steadman lands may have resulted from use of the herbicide Roundup was not supported by actual study, the judge found.

Damages awarded in the case cover crop losses of $45,000 between 1998 and 2013, costs for soil and plant tissue analysis of $5,652, as well as $56,700 for “the diminished value” of the Steadman farm “as a consequence of salt contamination and the stigma associated with that contamination,” Carey said.

Evidence before the court included real estate appraisals presented by both plaintiffs and defence. The judge’s decision relied on aspects of both appraisals to conclude a 35 per cent reduction in value has occurred on 15 acres of salt-contaminated land at the rate of $3,780 per acre.

Carey found Joseph Steadman to be “an honest and knowledgeable farmer” who brought the lawsuit “as a result of frustration with the continued denial by the county and its insurer of any involvement or responsibility for salt contamination.”

At the time of the trial, the Steadman property was listed for sale at the asking price of $990,000, down from an initial list price of $1.3 million, the judge’s decision says.

“He suggested that problems with the crops and his frustration over trying to resolve the problem may have precipitated his decision to sell,” the judge said of Steadman’s evidence.

As well, the judge heard of county attempts since 1997 to reduce winter salt use on roads. A county salt management plan introduced in 1997 cut salt use in half.

However, engineering evidence for the Steadmans concluded Lambton County’s salt application rate of between 135 and 200 kilograms per two-lane kilometre is “54 per cent greater than the recommended rates for the Ontario Ministry of Transportation,” the judge said.

The county solicitor criticized Carey’s conclusions but said any decision about an appeal will depend on county insurers. Defence lawyer Jennifer Stanton of London, Ont., who represented the county at trial, could not be reached for comment, Friday.

“Judge Carey really only focussed on half the analysis I think was necessary,” Lambton’s Cribbs said. “There was no analysis of public utility and the important safety benefits . . . enjoyed by all on a daily basis,” he said, referring to winter control efforts by municipal officials.

The county solicitor also cited a section of the Ontario Municipal Act he said exempts municipalities from nuisance actions “based on the escape of water or sewage.” Such an exemption should apply in cases of road salt contamination, Cribbs said.

Even so, Carey’s reasons for judgement cite a 1987 Supreme Court of Canada decision based on similar facts. It upheld claims against the provincial government for road salt contamination by two Niagara Peninsula orchard growers, Louis Schenk and Michael Rokeby.

In that case, the court ruled salt application on area highways can create damage to adjacent property for which government “could not escape liability.” Carey’s decision quotes judgement in the Niagara case to say the farmers’ injury “is a cost of highway maintenance and the harm suffered by them is greater than they should be required to bear in the circumstances, at least without compensation.” BF