Golf Creek at culvert (McDonald, 2021) (830x430)

Liability for Water Pollution: Riparian Rights and Access to Justice

May 16, 2024

Golf Creek flowing during a first-flush event after rainfall.
Photo Credit: Ken McDonald, 2021.

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.

Katrina Darychuk

Law Student

Katrina (she/her) is a J.D. candidate at the University of Victoria, Faculty of Law with interests in criminal law, disability justice, and environmental litigation. Most recently, Katrina worked in Whitehorse, YK with the Public Prosecution Service and will clerk with the Supreme Court of British Columbia in 2025.  

She holds a BA from University of Toronto in Critical Equity Studies and Ethics and a diploma in Theatre Arts from Langara College. Prior to law, Katrina worked as theatre director and creator across Canada. Her passions include gardening, thrifting, and walking her beloved dog Joe.

Patrick McDermott

Law Student

  • Santa Cruz Superior Court
  • California Attorney General’s Office, Land Use and Conservation Section

Patrick is a J.D. candidate at the University of Victoria, Faculty of Law. He is passionate about public interest environmental law as well as criminal justice reform. Patrick has a B.A. from University of California, Davis, and has legal experience in both Canada and the United States. Upon graduation, he will be clerking at the BC Supreme Court in Vancouver. In his spare time, he can be found backpacking, woodworking, baking, or running with his dog.

Lydia Young

Articled Student

  • 2022 Student mentor in the Pacific Centre for Environmental Law and Litigation | educational program
  • Associate Fellow, Centre for International Sustainable Development Law
 
Lydia received her J.D. from the University of Victoria in 2023 with a concentration in environmental law and sustainability and will be called to the British Columbia Bar in 2024. Lydia is pursuing an 2024-25 LL.M. in Global Environment and Climate Change Law at the University of Edinburgh.
 
As an articling student at Tollefson Law, Lydia has gained experience working on environmental, constitutional and natural resource litigation and has sat at counsel table before the BC Supreme Court and BC Court of Appeal. Lydia is pursuing a career that focuses on biodiversity conservation, natural resource law, green economies and sustainable development.

Anthony Ho

Associate

  • Program Coordinator at the Pacific Centre for Environmental Law and Litigation 
 
Anthony received his J.D. from the University of Victoria in 2014, and was called to the British Columbia bar in May 2015. His areas of practice in public interest environmental law have included environmental assessments, regulatory hearings, judicial reviews, and trials. 
 
He has appeared before the Federal Court and Federal Court of Appeal, the BC Supreme Court, and various tribunals including the National Energy Board and BC Environmental Appeal Board. 
 
In his capacity as Program Coordinator at the Pacific Centre for Environmental Law and Litigation (CELL), he helps deliver CELL’s educational program, which trains law students in litigation practice skills through exposure to real-life pieces of public interest environmental litigation.
 
He also holds a Master of Public Administration (UVic ’14), a B.Sc. in environmental sciences (UBC ’10), and a B.A. in political science (UBC ’10). He is currently pursuing a Ph.D. in Law and Society at UVic.

Chris Tollefson

Principal

  • Professor of Law, Faculty of Law, University of Victoria
  • Founding Executive Director of CELL – Pacific Centre for Environmental Law and Litigation
  • Past President of Ecojustice
 
Chris is the founding principal of Tollefson Law and a Professor of Law at the University of Victoria. He has degrees from Queen’s, University of Victoria and Osgoode Hall Law School, and clerked at the BC Court of Appeal.
 
Chris has appeared at all levels of trial and appeal court, and before various environmental regulatory boards and tribunals. He was counsel to BC Nature and Nature Canada during the Northern Gateway and Trans Mountain pipeline hearing processes.


 
He has published on a diverse range of environmental and natural resource topics including forestry, contaminated sites, environmental governance and assessment, eco-certification, and access to justice. The fourth edition of his national environmental textbook (co-authored with Prof. Meinhard Doelle) was published by Thomson Reuters in 2023.
 
He loves the outdoors, late night pool games, early morning reno projects, and dog sitting.