Morissette, Marcotte, Fournier
Appeal from a judgment of the Superior Court granting in part an application for a permanent injunction on decontamination work. Allowed in part. Incidental appeal by the City concerning the time limit to cease the contamination. Dismissed. Incidental appeal by the appellant seeking a declaration of abuse. Allowed.
The appellant owns a creek. The respondent City’s storm sewer, which is located upstream, is contaminated. The fecal coliform and other contaminants it contains originate from waste water discharge resulting from cross-connections in the pipes. The appellant asked that the City be ordered to cease all storm sewer discharge into the creek. The Superior Court granted the application in part, ordering the City to cease all contamination of the creek.
The trial judgment does not deal with the conditions set out in article 979 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) or with the source of the water flowing into the creek. The obligation to receive water under article 979 C.C.Q. applies only to waters that flow naturally from higher land to lower land, and not to water diverted by human intervention. The water that empties into the creek from the storm sewer comes from a collector. The layout plan of the collector shows that channelling has taken place and that the water does not follow a natural incline. The appellant is therefore not under an obligation to receive the water from the City’s storm sewer because this water does not flow naturally, and its flow is the result of human intervention. Since the appellant asks for the cessation of the discharge into the creek but does not specify the work that must be done, it is up to the City to decide and to determine how the order may be enforced. In addition, the appellant’s request that the decontamination order be extended to include the banks of the creek and the removal of [translation] “heavy metals from industrial or domestic sources” cannot be granted. According to the evidence, the creek is not polluted with metals, or the level of metals are low and below the standards that justify decontamination measures. Finally, the action is not prescribed, since the negatory action to eliminate the servitude based on article 979 C.C.Q. cannot be prescribed. The City is therefore ordered to ensure the cessation of all discharge from the storm sewer into the creek. It has alredy benefited from an 18-month period to ensure the cessation of the discharge. This judgment grants an additional 18 months, which seems sufficient.
In its incidental appeal, the City asks that the file be sent back to the Superior Court so that it may establish the time periods it will require for the work it wants to do. The City could have already established the time it believes it needs before the Superior Court, however, and it did not do so. It is not the role of the Court of Appeal to correct a party’s strategic choices after the fact.
Finally, the appellant asks that, as a sanction for its abusive conduct, the City be ordered to reimburse fees and extrajdicial costs. The City’s incidental appeal and its applications to suspend execution and to present new evidence were rash and bereft of any possibility of success. They expressed a desire to impose an indefensible solution after encountering multiple refusals. The City’s conduct is all the more abusive because it also asks that a new debate on this issue be ordered, even though it acknwoeldges the contamination of the creek and the fact that it is responsible for the storm sewer that spills into it. As a sanction, it must reimburse the appellant’s extrajudicial fees for these proceedings, which amount to $27,135.
Text of the decision: Http://citoyens.soquij.qc.ca