VANCOUVER, B.C. (16 May 2024) — The common law has long recognized the right to bring suit to protect against water pollution. The SCC has held that “[p]ollution is always unlawful” and riparian owners “are entitled to an order forbidding the fouling of the water”: (Groat v Edmonton (City), 1928 CanLII 49 (SCC)).

But does this common law right still survive in British Columbia (as it does in other provinces) or has it been extinguished by legislation? That is the question at the heart of McDonald v Comox (Town) (2023 BCSC 18; 2024 BCCA 180). In a recent decision, the BCCA has ordered that this legal question, never before squarely considered in the BC caselaw, should be remitted to the BCSC, as the plaintiffs originally proposed.

The McDonalds own a tranquil property in the Town of Comox, on Vancouver Island. A small creek runs through their backyard. The Town’s stormwater management system empties into the creek. The McDonalds claim the Town’s actions have polluted the creek and caused erosion to their creek banks.

They brought suit against the Town claiming its actions constitute a nuisance and breaches their common law riparian rights. The Town asserts that the Province has long ago abolished all riparian rights. The McDonalds say, in response, that common law rights can only be extinguished through clear and unequivocal legislative action. Applying this standard, the common law riparian right to water quality has not, they claim, been regulated out of existence.

To resolve this unsettled and important legal question, the McDonalds filed an application under Rule 9-4 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 to determine the following point of law: “Is there an unabrogated riparian right at common law in British Columbia to receive water of a quality substantially undiminished from its natural state?”

The BCSC (in chambers) found that the McDonalds had established an arguable case that the common law right to water quality had not been extinguished. Nonetheless, it denied their application on the basis that they had not proved the Rule 9-4 determination would save trial time and resources. However, on May 9, the BCCA granted the McDonalds’ appeal.

The BCCA concluded that the McDonalds had framed a clear legal question for determination under the Rule, the resolution of which offered significant potential for savings of time and resources, and would promote access to justice and incentivize settlement.

Justice Newbury, writing for a unanimous court, held that “the fact that the plaintiffs have undertaken to discontinue the proceeding in the event that they do not succeed on the point of law… should have been given substantial weight in the analysis” (para 30). Further, she noted that “if the ultimate result of the R. 9-4 application is that the plaintiffs do not have a cause of action, much time and expense, both in terms of the parties and the justice system, will have been saved. Even if the plaintiffs are successful, the possibility of settlement once the applicable law is known may well increase” (para 30).

The BCCA has ordered that the McDonald’s legal question be set down for determination under Rule 9-4 in BCSC.