Hone-Bellemare c. Elkem Métal Canada inc.

2022 QCCS 3313

Une traduction française du jugement se trouve à la fin du jugement original en anglais.

CANADA

PROVINCE OF QUEBEC

DISTRICT OF BEAUHARNOIS

No.:

760-17-003265-132

DATE: September 2, 2022

_____________________________________________________________________

BY THE HONOURABLE GEETA NARANG, J.S.C.

_____________________________________________________________________

ÉLISABETH HONE-BELLEMARE

and

ESTATE OF THE LATE JACQUES BELLEMARE^*, represented by Élisabeth Hone-

Bellemare ès qualité liquidator of the estate

and

FRANÇOIS BELLEMARE

and

DOMINIQUE BELLEMARE

and

NICOLAS BELLEMARE

and

ALAIN BELLEMARE

and

ANNE-MARIE BELLEMARE

and

SYLVAIN BELLEMARE

Plaintiffs

v.

ELKEM MÉTAL CANADA INC.

Defendant

*

Mr. Jacques Bellemare is deceased. No modification was made to reflect the change of his civil status,

but the issue is not disputed. As such, his designation has been changed.

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PAGE : 2

_____________________________________________________________________

J U D G M E N T

_____________________________________________________________________

TABLE OF CONTENTS

I - OVERVIEW .................................................................................................................4

II - THE NEIGHBOURING PROPERTIES .......................................................................6

1.

2.

The Land ............................................................................................................6

The Old Elkem Site.............................................................................................9

III - THE PARTIES.........................................................................................................10

1.

2.

The Plaintiffs.....................................................................................................10

The Defendant..................................................................................................11

IV - REASONS...............................................................................................................12

1.

Was the lawsuit filed too late? ..........................................................................12

1.1. Unfounded Inference About Information-Sharing....................................................................14

1.2. Correspondence Between Mr. Dominique Bellemare and the Ministry of the Environment in

the 1990s............................................................................................................................................16

1.3. Information Imbalance.............................................................................................................19

2.

3.

Is Elkem liable under the fault-based liability regime? ......................................21

Is Elkem liable under the no-fault liability regime for neighbourly annoyances?

22

3.1. Manganese as an Abnormal Annoyance that Need not be Tolerated ....................................22

3.2. Elkem’s Contribution to the Manganese on The Land ............................................................29

i)

West-East Horizontal Gradient......................................................................33

Vertical Gradient ...........................................................................................33

Winds............................................................................................................34

Manganese Levels in the Greater Montreal Area..........................................35

Union Carbide vs Elkem................................................................................35

ii)

iii)

iv)

v)

3.3. The Absence of Norms in the 1990s.......................................................................................36

3.4. Zone R.....................................................................................................................................36

4.

What is the appropriate injunctive relief?..........................................................38

4.1. The Cost Issue ........................................................................................................................39

4.2. The Appropriate Approach to the Works to Be Done..............................................................42

4.3. Degree of Detail for Injunctive Orders.....................................................................................44

4.4. The Injunctive Orders..............................................................................................................45

i)

ii)

iii)

iv)

v)

vi)

Supervision of Works....................................................................................45

Preliminary Work...........................................................................................45

Removal of Slag and Industrial Residue.......................................................46

Zone R..........................................................................................................47

Uncontested Residential Areas.....................................................................48

Uncontested Wooded Areas.........................................................................48

vii) Contested Areas Between Zone R and Uncontested Wooded Areas...........50

viii) Post-decontamination Work..........................................................................51

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ix)

PAGE : 3

Timeframe.....................................................................................................52

4.5. Going Forward.........................................................................................................................53

5.

Do members of the Hone-Bellemare family have a right to damages?.............54

5.1. Mr. Nicholas Bellemare ...........................................................................................................56

5.2. Ms. Élisabeth Hone-Bellemare................................................................................................57

5.3. Messrs. François and Dominique Bellemare ..........................................................................57

5.4. Ms. Anne-Marie, Messrs Alain and Sylvain Bellemare ...........................................................57

V – COSTS AND INTEREST.........................................................................................57

VI - CONCLUSIONS......................................................................................................59

1.

2.

3.

4.

5.

6.

7.

8.

Preliminary Work and Supervision....................................................................59

Removal of Slag and Industrial Residue:..........................................................59

Zone R:.............................................................................................................60

Uncontested Residential Areas:........................................................................60

Uncontested Wooded Areas:............................................................................60

Contested Area Between Zone R and the Uncontested Residential Area:.......60

Post-decontamination Work:.............................................................................60

Timeframe: .......................................................................................................61

I – APERÇU.....................................................................................................................4

II – LES PROPRIÉTÉS AVOISINANTES........................................................................6

1.

2.

Les Lieux...........................................................................................................6

L’ancien site d’Elkem .......................................................................................8

III – LES PARTIES ..........................................................................................................9

1.

2.

Les demanderesses et les demandeurs.........................................................9

La défenderesse .............................................................................................10

IV – MOTIFS..................................................................................................................11

1

La poursuite a-t-elle été intentée trop tard ?................................................11

Absence d’inférence concernant la communication de l’information.............................13

Correspondance entre M. Dominique Bellemare et le ministère de l’Environnement

1.1

1.2

dans les années 1990.......................................................................................................................16

1.3

Déséquilibre informationnel.................................................................................................19

2

Elkem est-elle responsable en vertu du régime général de responsabilité

basée sur la faute ?..................................................................................................20

Elkem est-elle responsable en vertu du régime de responsabilité sans

faute pour les troubles de voisinage ?...................................................................21

3

3.1

3.2

i)

Le manganèse en tant qu’inconvénient anormal qui ne doit pas être toléré..................22

Contribution d’Elkem à la présence de manganèse sur les Lieux...................................29

Gradient horizontal ouest-est ..............................................................................................33

Gradient vertical ....................................................................................................................33

Vents.......................................................................................................................................34

Concentrations de manganèse dans la région métropolitaine de Montréal ...................35

Union Carbide ou Elkem.......................................................................................................36

Absence de normes dans les années 1990 ........................................................................36

Zone R ....................................................................................................................................37

ii)

iii)

iv)

v)

3.3

3.4

4

Quelle est l’injonction appropriée ?..............................................................38

La question des coûts ..........................................................................................................40

L’approche à adopter à l’égard des travaux à effectuer ...................................................43

Degré de précision des injonctions.....................................................................................45

Les injonctions ......................................................................................................................46

4.1

4.2

4.3

4.4

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PAGE : 4

i)

ii)

Supervision des travaux.......................................................................................................46

Travaux préliminaires ...........................................................................................................47

Retrait des scories et des résidus industriels....................................................................48

Zone R ....................................................................................................................................49

Zone résidentielle non contestée ........................................................................................49

Zones boisées non contestées............................................................................................50

Zones contestées entre la zone R et les zones boisées non contestées........................52

iii)

iv)

v)

vi)

vii)

viii) Travaux postérieurs à la décontamination .........................................................................53

ix)

4.5

Échéancier .............................................................................................................................53

La suite des choses ..............................................................................................................54

5

Les membres de la famille Hone-Bellemare ont-ils droit à des dommages-

intérêts ?...................................................................................................................56

5.1

5.2

5.3

5.4

M. Nicolas Bellemare ............................................................................................................58

M^meÉlisabeth Hone-Bellemare.............................................................................................59

MM. François et Dominique Bellemare ...............................................................................59

M^meAnne-Marie Bellemare, MM. Alain et Sylvain Bellemare............................................59

V – FRAIS DE JUSTICE ET INTÉRÊTS .......................................................................60

VI – CONCLUSIONS.....................................................................................................61

1

2

3

4

5

6

7

8

Travaux préliminaires et supervision ...........................................................61

Retrait des scories et des résidus industriels..............................................62

Zone R .............................................................................................................62

Zones résidentielles non contestées............................................................62

Zones boisées non contestées......................................................................62

Zone contestée entre la zone R et la zone boisée non contestée ..............63

Travaux postérieurs à la décontamination...................................................63

Échéancier ......................................................................................................63

I - OVERVIEW

[1]

There is a piece of land on the shores of a body of water now known as Lake Saint-

Louis. Those who spend time there describe it as a magnificent place of abundance.

Between 500 and 2000 years before the Common Era, First Nations people spent time

at this place.¹Under the colonizers’ system of property law, since 1866, title to the place

has been held by the Rodier-Thibaudeau-Hone-Bellemare family. Today, Élisabeth Hone-

Bellemare owns it. The place will be referred to as “The Land” or “Ms. Hone-Bellemare’s

property” in this judgment, depending on the context.

[2]

The Plaintiffs are members of the fifth and sixth generations of the family to enjoy

The Land. They call it the Pointe Thibaudeau and the Pointe Saint-Louis. They describe

their experiences there as bucolic: summer days playing with siblings in the woods,

hunting, restoring ancestral orchards, making maple syrup and spending time with family.

1

Exhibit P-4f, Maurice Binette, Une ancienne occupation amérindienne sur la Pointe Thibaudeau (source

illegible (part of an answer to a Request for Particulars after Dominique Bellemare’s Examination),

pages 19 and 20.

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PAGE : 5

[3] The Land can also, quite rightly, be described as a piece of property that has been

located in an industrial area of the Beauharnois region since the mid-1900s. At that time,

several companies began operating industrial plants, specializing in the transformation of

metals, in the area.

[4]

Today, The Land is bordered by the lake (to the north and to the east), a highway

(to the south), and the site where the Defendant Elkem Métal Canada Inc. owned and

operated a ferromanganese and ferrosilicon plant from 1984 to 1991(to the west).

[5]

As such, the parties – the Hone-Bellemare family and Elkem – were once

neighbours. This case is about Elkem’s obligations towards the Hone-Bellemares as their

former neighbour.

[6]

Manganese was a by-product of Elkem’s industrial operations. Today, there is

manganese on The Land in concentrations that exceed acceptable levels for residential

land set by the Quebec Ministry of the Environment². The Hone-Bellemares are seeking

injunctive orders obliging Elkem to clean up The Land and reduce the amount of

manganese on it. They are also asking for damages.

[7]

The family argues that Elkem committed a civil fault in how it operated its plant in

the 1980s and 1990s, but the evidence does not support this argument. When Elkem was

operating its plant, manganese was not included in the Ministry of the Environment’s list

of substances that, when present in certain concentrations, are contaminants. Over the

years, there may have been small problems with the plant’s filtration system, but they

were not significant enough to find that Elkem committed a fault. It is inappropriate to

judge Elkem’s activities decades ago through the lens of today’s norms. Considering what

was generally acceptable in the 1980s and 90s, the company’s activities were not

blameworthy.

[8]

[9]

There is nonetheless a legal basis for the Hone-Bellemares’ lawsuit.

As is often the case in environmental matters, it is the no-fault liability regime for

neighborly annoyances which provides the legal basis for the Hone-Bellemares’ claim.

Environmental norms evolve. What was possibly acceptable in the 1980s and 90s is not

necessarily today.

[10] Elkem submitted several defenses. The company argued that the Hone-

Bellemares waited too long to institute their lawsuit, that the amount of manganese on

The Land is not problematic, that other industrial players contributed to the high levels of

manganese in the area and that reducing the level of manganese on The Land would be

too expensive.

2

Today, the full title of the ministry is the Ministry of the Environment and the Fight against Climate

Change. It has changed names several times over the years and will be referred to as the “Ministry of

the Environment” in this judgment for brevity’s sake.

760-17-003265-132

PAGE : 6

[11] Elkem’s defenses are unfounded.

[12] Today, the no-fault liability regime for neighbourly annoyances is well established

in Quebec law. The polluter-pays principle has been recognized by the courts and by

governments. As such, companies sometimes have an obligation to clean-up after

themselves, even if their plants have been closed for decades and their operations were

lawful. Elkem made a profit from operating a plant which emitted manganese into the

environment. Now, it must assume the costs of cleaning up after itself.

[13] The work that has to be done to reduce the amount of manganese on The Land is

not simple and straightforward. It is complicated, expensive and long-term, but this does

not change the fact that the work has to be done and that Elkem has a legal obligation to

pay for it.

[14] When there is a right, there is a legal remedy.

[15] In this case, the Hone-Bellemares have the right not to be forced to tolerate

manganese on The Land in excess of levels set by the Ministry of the Environment for

residential land. With this judgment, a remedy is provided to give meaning to their right.

[16] As for damages, the Hone-Bellemares claim a total of $1.04M. The amount is too

high given that Elkem did not commit a fault. With this judgment, family members are

awarded between $75 and $400 a month since learning of the manganese issue. While

$1.04M may reflect their actual suffering, Elkem is not responsible for everything that the

family has been through. Under the no-fault regime for neighbourly annoyances, a

defendant’s liability for monetary damages is limited to compensation for the injury

resulting from the abnormal inconvenience itself.

II - THE NEIGHBOURING PROPERTIES

1. The Land

[17] Ms. Hone-Bellemare is the current owner of The Land at center of this case. She

bought it from her uncle in the 1980s.³It is 179 272.6 meters²or 17.93 hectares, located

less than an hour’s drive from Montreal.⁴The Land consists of woods, wetlands and

3

Exhibit P-1, Deed of Sale. The sale was in June 1988 for $300 000, though it was not registered until

February 1998. The Land was designated lot number 562-1 of the old Beauharnois cadaster. It is now

designated as lot number [1] with the civic address 805-885, rue Pointe-Saint-Louis.

Exhibit T-2, Expertise complémentaire, Points de convergence et divergences of March 25, 2021, page

4

8 (answer to question 6). Pursuant to article 234 of the Code of Civil Procedure, after producing several

reports and after having testified, the parties’ environmental experts, Martin Duquette (for Elkem) and

Samuel Laberge (for the Hone-Bellemares), were ordered to meet, discuss nine issues and produce a

report. In this judgment, Mr. Duquette will be referred to as “Elkem’s environmental expert”, and Mr.

Laberge as the “Hone-Bellemares’ environmental expert”.

760-17-003265-132

PAGE : 7

residential areas. The parties agree on this, though there is a slight disagreement

between their experts on the surface area of each part:

Elkem

Wooded area 70.2%

Wetlands

The Hone-Bellemares

65.3%

19.5% (agreement)

Residential

10.3%

15.2%

[18] There are several buildings on The Land, the most impressive being a residence

that the Hone-Bellemares call the Manor. It was built in the 1880s and has served as a

secondary residence for the family for years.

[19] Ms. Hone-Bellemare’s son, Nicolas Bellemare, is the only full-time resident of The

Land. He lives in a building that the family calls “the stone house”. It is one of the buildings

designated as an habitation principale in the figure that appears in paragraph 24, below.

[20] There are several other structures on The Land, including three-season cottages

5

and a chapel. There is also an orchard and a maple syrup shack:

[21] There is an area at the western-most part of The Land dominated by what the

Hone-Bellemares refer to as a talus – the French word for “embankment” or “mound”. It

consists of pieces of solidified black slag, backfill and industrial detritus. According to the

5

This sketch is based on a figure produced by SNC Lavalin in 2016 at Elkem’s request (exhibit D-15,

Elkem’s Environmental Expertise of March 2017, Figure 1, in annexe). The sketch was made by the

undersigned. It is a tracing of D-15, Figure 1. It is included to facilitate the reader’s understanding. The

sketch is not evidence; exhibit D-15 is.

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PAGE : 8

Bellemare-Hones, over the years, the talus has shifted towards their property. The area

is designated as “Zone R” in the figure below: ⁶

6

In exhibit T-2, Expertise complémentaire (page 2, answer to question 3.i), the parties’ environmental

experts agree on the location of “Zone R” and accordingly produced Drawing 001 in annexe to their

Expertise complémentaire (page 19 of T-2). The sketch that appears at paragraph 22 is a tracing of

Drawing 001 in the Expertise complémentaire. The undersigned made it. It is included to facilitate the

reader’s understanding. The sketch is not evidence; exhibit T-2 is.

760-17-003265-132

PAGE : 9

[22] In this judgment the area will be referred to as “Zone R”. In the analysis of the

Hone-Bellemares’ claim, special considerations sometimes apply to it. As such, it will

sometimes be treated separately from the rest of The Land.

2. The Old Elkem Site

[23] The site of the old Elkem plant sits directly to the west of The Land.⁷At some point,

Elkem installed a Frost fence in Zone R which is still there today. There is confusion about

where the fence is located in relation to the actual dividing line between the two properties.

[24] The old Elkem site was once used for agricultural and residential purposes. In

1941, it was bought by Union Carbide, which built and then began operating a plant there

in the 1970s.⁸Elkem bought the land and the assets of the plant from Union Carbide,

then operated it from 1984 to 1991.⁹

7

It is now designated as lot 4 714 988 of the Beauharnois cadastre (exhibit D-31, Approbation d’un Plan

de réhabilitation of February 27, 2017 page 2, first paragraph).

Exhibit P-4, Rapport d’enquête et d’audience publique of January 2011, page 3, “L’historique du

8

terrain”.

9

Exhibit P-3, Deed of Sale of July 26, 1984.

760-17-003265-132

PAGE : 10

[25] The property is now owned by Investissements René St-Pierre Ltée, which uses it

for recycling and storage. The site is highly contaminated with manganese and a plan has

been approved by the Minister of the Environment to rehabilitate it.¹⁰

III - THE PARTIES

1. The Plaintiffs

[26] Ms. Hone-Bellemare has been spending time on The Land since her birth in 1930.

After she married, she and her husband, the late Mr. Jacques Bellemare, maintained a

secondary residence there, where they stayed during vacations.¹¹

[27] The six other Plaintiffs are the children of the couple. They have been spending

time on The Land since they were children and continue to enjoy it to this day. They are

all now adults and spend less time there, with the exception of Mr. Nicolas Bellemare who

lives in the stone house.

[28] Given the pandemic and issues with travel, only the three eldest siblings testified

at trial, both in person and virtually. They are:

 François Bellemare – Born in 1957, he is the eldest of the siblings. During his

childhood, he spent his summers and vacations on The Land. The time he spent

there tapered off in his teenage years. Then, beginning in 1997, he spent more

and more time on The Land with his partner and two children. He worked on one

of the cottages, rehabilitated the orchard and grew vegetables, which he and his

family ate. At some point in the 2010s, he put his plans to winterise one of the

buildings on hold because of concerns about manganese on The Land.

 Dominique Bellemare – Born in 1959, he spent summers and weekends on The

Land during his childhood. In the past, he has lived there on a part-time basis, and

plans to do so in the future.

Mr. Dominique Bellemare is a key figure in this case because he often acted as a

liaison person between the family and Elkem, as well as government officials.

10

Quebec’s Bureau d’audiences publiques sur l’environnement observed that, at some places on the old

Elkem site and its shoreline, concentrations of manganese were up to 265 times greater than

acceptable levels for lands destined for commercial and industrial uses (exhibit P-4, Rapport d’enquête

et d’audience publique of January 2011, page 37, first paragraph); exhibit D-31, Approbation d’un Plan

de réhabilitation of February 27, 2017

11

The information about the Plaintiffs in this section is based on testimony at trial and the following sworn

declarations which were filed, by consent: Déclaration sous serment d’Élisabeth Hone-Bellemare of

February 22, 2021; Déclaration sous serment d’Alain Bellemare of March 3, 2021; Déclaration sous

serment d’Anne-Marie Bellemare of March 4, 2021; Déclaration sous serment de Sylvain Bellemare of

March 4, 2021. Information in Élisabeth Hone’s Déclaration of March 1999 filed in support of another

lawsuit was also used (exhibit D-7).

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When there were public hearings about how to restore the shoreline in front of the

old Elkem site, he made representations on behalf of the family.¹²

 Nicolas Bellemare – Born in 1961, he, like his siblings, spent the summers and

vacations of his childhood on The Land. He hunted and fished with his brothers. In

the winter, they skated on the lake; in the summer, they swam.

Since 1993 or 1994, he has been living in the stone house full-time. He restored it

and it is his home. He raised his children there. Mr. Nicolas Bellemare uses the

maple sugar shack and devotes a great deal of his time to the upkeep of The Land

and its buildings. In 2010, he stopped engaging in activities that involve stirring up

the soil for fear of being in contact with manganese and increasing his exposure.

[29] The other Plaintiffs are:

 Alain Bellemare – Born in 1962, he spent his summers and many weekends on

The Land until approximately 1980. He now lives in British Columbia and does not

plan on returning to Montreal. However, he continues to visit The Land a few times

a year to spend time with family. He imagines that his children or grandchildren

might one day want to build residences for themselves on The Land.

 Anne-Marie Bellemare – Born in 1965, she spent her summers, weekends, spring

and fall school breaks on The Land until approximately 1985. Since then, she has

been spending a few weekends a year on The Land and some time there in the

summer. Ms. Bellemare lives in Montreal.

 Sylvain Bellemare – Born in 1968, he spent his summers, weekends, spring and

fall school breaks on The Land until approximately 1986. For the next twenty years,

he spent two to four days a year there. Since 2008, he has been spending three to

four days a year on The Land. Mr. Sylvain Bellemare lives in Montreal.

[30] The three younger siblings did not testify at trial.

2. The Defendant

[31] Today, Elkem’s only Canadian operations are in Chicoutimi, Quebec.

[32] As explained by the current president, Elkem ASA is the sole shareholder of Elkem

Canada Métal Inc. and Elkem ASA’s annual revenues are approximately 3.5 billion

Canadian dollars. Elkem ASA is based in Norway. It owns and operates twenty industrial

plants around the world.¹³

12

Exhibit P-4, Rapport d’enquête et d’audience publique of January 2011.

Testimony of Jean Villeneuve on March 9, 2021, supported by exhibit P-14, Elkem ASA, Fourth Quarter

13

results 2020.

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PAGE : 12

[33] Though Elkem’s Beauharnois plant closed in 1991, it remains involved in

restoration projects in the area, more specifically, the project to restore the shoreline in

front of the site where it operated its ferromanganese and ferrosilicon plant, as well as

restoration of the site, itself.¹⁴

IV - REASONS

1. Was the lawsuit filed too late?

(Prescription and Theory of Laches Arguments)

[34] The Hone-Bellemares filed their lawsuit in June 2013, more than two decades after

Elkem closed its plant. Elkem argues that this was too late. It invokes the theory of laches

(as concerns the injunctive relief) and prescription (as concerns damages).

[35] The two principles are not identical. However, in applying both principles, a key

issue is determining when the “clock begins ticking” for the purposes of calculating delays,

that is, determining when the Hone-Bellemares had enough information to file a judicial

application against Elkem. What matters is when the family acquired concrete knowledge

of the damages they allege to be suffering, that is, when they learnt of the extent of the

manganese on The Land.¹⁵

[36] Of course, the Hone-Bellemares have known, for quite some time, that there was

a ferromanganese and ferrosilicon plant operating on the property next to The Land and

that it might be emitting pollutants into the environment. The plant was in plain view. As

explained by the Bellemare brothers who testified at trial, in the 1970s, 80s and 90s, there

was noise from trucks backing up, odors, and smoke which varied in colour from white to

gray billowing from the stacks of the plant.

[37] Over the years, the Hone-Bellemares may have had worries about the effects of

the industrial activities of their neighbour. However, for the purposes of calculating delays,

more is needed. Plaintiffs must have a real basis for a lawsuit and not mere suspicions

that they may have a right of action.¹⁶

[38] The parties agree that the Hone-Bellemares obtained actual knowledge of the

extent of the manganese issue when they learnt of the results of a 1994 Bio Géo Report.

The report was commissioned by Elkem and concluded that concentrations of

manganese on Ms. Hone-Bellemare’s property were unusually high: 2 to 40 times higher

14

Exhibit P-4, Rapport d’enquête et d’audience publique of January 2011 and exhibit D-31 Approbation

d’un plan de réhabilitation of February 27, 2017 and testimony at trial.

Delays begin running at the moment où les principaux intéressés connaissent avec suffisamment de

15

précision les reproches qu'elles adressent à certaines personnes dont elles connaissent l'identité et la

nature des dommages que leurs faits et gestes leur ont causés. (Dufour c. Havrankova, 2013 QCCA

486, paragraph 1, extract of the Superior Court judgment cited with approval).

16

Céline Gervais, La prescription (2^eédition), Cowansville, Éditions Yvon Blais, 2009, pages 105-106 :

“une base réelle, et non des simples soupçons.”

760-17-003265-132

PAGE : 13

than in soil samples from elsewhere in the Beauharnois region.¹⁷The parties disagree

about when the family learnt of these findings, and thus the starting point for calculating

delays.

[39] Elkem’s argument is as follows:

[40] In the 1990s, following exchanges with the Ministry of the Environment, Mr.

Dominique Bellemare knew about the Bio Géo Report. He shared the information with his

parents and siblings. They did nothing for close to two decades, thereby accepting the

situation and renouncing to their right to seek legal remedies.

[41] The Hone-Bellemares, on the other hand, claim that it was not until the fall of 2010

that they learnt of the Bio Géo Report and the high levels of manganese on The Land.

[42] Their version of what happened is as follows:

[43] In September 2010, when reading a local newspaper, Mr. Dominque Bellemare

learnt that the government of Quebec’s Bureau d’audiences publiques sur

l’environnement (the “BAPE”) was going to hold public consultations about restoring the

shores of Lake Saint-Louis in front of the old Elkem site. This interested him. He obtained

documents that were publicly available in the context of the BAPE hearing, including the

Bio Géo Report. He was appalled when he learnt that samples of soil had been taken

from The Land and that an analysis of the soil revealed high levels of manganese on it.

He then shared this information with his family.

[44] For the reasons set out in the following sections, the evidence supports the Hone-

Bellemares’ argument that September 2010 is the starting point for calculating delays.¹⁸

[45] The Civil Code of Québec provides that plaintiffs have three years from the day on

which their action arises to file their lawsuit.¹⁹Thus, the Hone-Bellemares had until

September 2013 to file their judicial application, which they did.

[46] The Legislator has not set a specific delay within which plaintiffs must file an action

for injunctive relief.²⁰The timeframe must be reasonable and equitable. Under the Civil

Code of Québec, extinctive prescription for most cases is three years.²¹Generally

17

Exhibit D-5, Caractérisation environnementale des sols de surface, prepared by Bio Géo

Environnement in May 1994, page 19, section 5 : Les concentrations en manganèse obtenus pour les

échantillons de sols de surface prélevés sur la propriété de Monsieur Bellemare sont de 2 à 40 fois

plus élevés que celles des échantillons de sols provenant du secteur rural autour de Beauharnois. The

observation also appears at page 14, section 4.2.3 of the report.

18

Not all of the witnesses and deponents specified the month in which they learnt of the Bio Géo Report.

Alain, Anne-Marie and Sylvain Bellemare mention September 2010 in their Déclarations sous serment

and this is the timeframe that will be used in this judgment.

Civil Code of Québec, article 2880, second paragraph and article 2925.

Code of Civil Procedure, articles 507 to 515.

Civil Code of Québec, article 2925.

19

20

21

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PAGE : 14

speaking, this time frame can be used as a guide to determine what constitutes a

reasonable delay within which plaintiffs must file an action for injunctive relief.

[47] Given that the Hone-Bellemares learnt of the Bio Géo Report in September 2010,

filing a judicial application in June 2013 falls within this range.

[48] The theory of laches is premised on the principle that “a reasonable person is

unlikely to sleep on a well-founded claim”²². If a party who is fully aware of their rights

stands by and does nothing – all while their rights are being infringed – after a certain

period of time they have tacitly accepted the situation and acquiesced to the

infringement.²³

[49] A party cannot acquiesce to something that they do not know about.

[50] The Hone-Bellemares could not have acquiesced to the very high concentrations

of manganese on The Land until September 2010 because they did not have the requisite

knowledge of the extent of the problem until then. They filed their action two years and

ten months later, in June 2013, which is a reasonable delay.

[51] The determination that September 2010 is the starting point for calculating delays

is based on the following analysis.

1.1. Unfounded Inference About Information-Sharing

[52] Elkem’s arguments – based on prescription and the theory of laches – are

premised on an inference that Mr. Dominque Bellemare shared any and all information

that he obtained about The Land in the 1990s with both of his parents, as well with each

and every one of his five siblings.

[53] There is no evidence to support such an inference.

[54] There are eight plaintiffs in this case. For Elkem’s argument to succeed, it must

prove that each of them had sufficient knowledge of the elements of their action in 1990s

and that they allowed an unreasonable delay to lapse before filing their judicial application

in June 2013.

[55] Ms. Hone-Bellemare holds legal title to The Land. She did not testify at trial, but

her uncontested sworn declaration is unequivocal. In it, she swears was it was in 2010,

in the context of the BAPE hearings that she learnt pour la première fois that soil samples

22

Robert J. Sharpe, Injunctions and Specific Performance, Toronto, Thomas Reuters, loose leaf edition

updated in November 2019, paragraph 1.840.

23

M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, page 78; P.L. v. McGill University Health Center, 2019 QCCA 1372,

paragraph 61; Céline Gervais, L’injonction (2^eedition), Cowansville, Éditions Yvon Blais, 2005, page

34. In the civil law tradition, for the theory of laches to succeed, there is sometimes an additional

requirement that the defendant suffers an injustice as a result of the time that the plaintiff has allowed

to lapse.

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PAGE : 15

had been taken from her property and analyzed. It was then that she learnt of the results

of the study which demonstrated une contamination de notre propriété avec du

manganèse, émis pas l’usine métallurgique propriété de la compagnie Elkem.²⁴

[56] The other Plaintiffs are categorical on the issue: they had no knowledge of the

1994 Bio Géo Report until 2010, when Mr. Dominique Bellemare told them about it.

[57] The uncontested sworn declarations filed by the three Bellemare children who

were not at trial – Alain, Anne-Marie and Sylvain – are clear on the issue. For example,

in Ms. Anne-Marie Bellemare’s declaration, she swears: J’ai appris que le sol de la

propriété de la Pointe Saint-Louis était contaminé au manganèse vers septembre 2010

par mon frère Dominique Bellemare, suite à la découverte de celui-ci de documentation

déposée par Elkem dans le cadre du processus de consultation du BAPE.²⁵

[58] Further, the testimony of the two Bellemare brothers who testified at trial was

convincing.

[59] Mr. Nicholas Bellemare’s explained that, in 2010, when his brother Dominique told

him about the Bio Géo Report and the high concentration of manganese on The Land, he

was immediately concerned about his children and their exposure to manganese over the

years. He went out to the talus to collect samples of dried slag. He questioned the wisdom

of continuing his maple syrup production and decided that it was no longer safe to engage

in activities that involve stirring up soil on The Land.

[60] Mr. François Bellemare’s testimony that he learnt of the high levels of manganese

in 2010 was also credible. Before then, he cultivated vegetables on The Land and ate

them with his family. When he learnt of the Bio Géo Report’s findings, he had vegetables

tested at the Université de Québec à Montréal (UQUÀM)’s laboratories and stopped

consuming them. He put his plans to winterize one of the cottages on hold for fear of

disturbing the soil and aggravating the problem.

[61] The two brothers’ recollections of the moment they learned of the Bio Géo Report’s

findings – the intensity of their feelings and certain very specific actions they took at the

time – convince me that they did not have knowledge of the high levels of manganese

until September 2010.²⁶

24

Déclaration sous serment d’Élisabeth Hone-Bellemare of February 22, 2021, paragraph 15, which also

includes the following statement : Lors de la tenue de ces audiences du BAPE et du dépôt de

documents, j’ai appris pour la première fois que des études de sols avaient été effectués vers 1996 sur

ma propriété.

25

Déclaration sous serment d’Anne-Marie Bellemare of March 4, 2021, paragraph 3. See, also :

Déclaration sous serment d’Alain Bellemare of March 3, 2021, paragraph 3 and Déclaration sous

serment de Sylvain Bellemare of March 4, 2021, paragraph 3.

In this regard, Nicholas Bellemare’s description of visiting the talus and François Bellemare’s

26

description of waiting for results from the university laboratory were particularly convincing.

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PAGE : 16

[62] The moment they learnt of the issue was an important turning point in their lives.

They received devastating news about a place that is dear to them. As such, it makes

sense that they have vivid memories of what they did and how they felt on that day and

at that moment.

[63] Elkem argues that Mr. Dominique Bellemare acted as the family’s representative

as concerns management of The Land.²⁷This may have, at times, been true, but it does

not lead to the conclusion that he necessarily shared the contents of the 1994 Bio Géo

Report – presuming he knew about it – with his mother, father, four brothers and sister in

the 1990s. He may have sometimes acted as a spokesperson for the family, but this is

insufficient to support the conclusion that he shared all information with all family

members, all of the time.

[64] The burden of proof for establishing that the Hone-Bellemares are time-barred

from suing lies with Elkem.²⁸It cannot be met by an unfounded assumption that Mr.

Dominique Bellemare shared information about the Bio Géo Report in the 1990s with

parents and five siblings because there is no proof that he did so. Further, there is

compelling and uncontested proof of the contrary.

[65] Dismissing a lawsuit based on the argument that it was filed too late is serious; it

effectively deprives a party of the ability to access the court system to assert their legal

rights and have them recognized. As such, more than an argument based on an

unfounded inference is needed.

1.2. Correspondence Between Mr. Dominique Bellemare and the Ministry

of the Environment in the 1990s

[66] Given the finding that the delay did not begin running until the fall of 2010 for seven

of the eight Plaintiffs, it is only necessary to decide whether Mr. Dominique Bellemare had

enough information to file a judicial application against Elkem in the 1990s to determine

whether his claim for damages was filed too late.

[67] Elkem argues that Mr. Dominique Bellemare knew about the extent of the

manganese issue in the 1990s. It relies on correspondence he exchanged with the

Ministry of the Environment to support its position.

[68] However, a careful examination of the correspondence does not support Elkem’s

argument. Rather, it reveals that Mr. Dominique Bellemare had suspicions about the

amount of manganese on The Land in the 1990s and that he was worried about it. This

is insufficient to begin the clock for the purpose of calculating delays.

27

Plan d’argumentation de la partie défenderesse, paragraph 96.

Djamad v. Banque Royal du Canada, 2021 QCCA 371, paragraphs 31 and 32; Prince v. Dalpé, 2008

28

QCCS 5181, paragraphs 104 and 116.

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PAGE : 17

[69] In August 1992, just after Elkem’s plant closed, Mr. Dominique Bellemare sent a

letter to the Ministry of Environment in which he expresses concerns about the

manganese on The Land resulting from Elkem’s activities. The letter demonstrates that

he was concerned about the situation. It also shows that he was looking for more

information and possible solutions from the Ministry:

Sans avoir procédé à des analyses coûteuses, des tests qualificatifs nous

permettent de déceler d’importante[s] concentration[s] de manganèse sur

la propriété où le soussigné est résidant estivant, c’est-à-dire le lot 562-1,

riverain d’Elkem et ce, sur le côté est du terrain 562-3. Il serait important

d’être mis au courant de la toxicité du milieu étant donné que s’il advenait

que la société doive fermer ses portes, le Gouvernement du Québec se

retrouverait avec une importante facture de décontamination.²⁹

[70] At this point, it is clear that Mr. Bellemare is worried, but he does not have enough

information to properly ascertain the situation. Thus, as concerns Mr. Dominique

Bellemare, the starting point for calculating delays cannot be August 1992. The letter he

sent at that time is merely exploratory in nature.

[71] Over the next two years, bureaucrats at the Ministry of the Environment send

several more letters and faxes to Mr. Dominique Bellemare about the possible long-term

effects of industrial activities on his family’s property. Mr. Dominique Bellemare

acknowledges receiving some, and denies receiving others.³⁰

[72] All of the correspondence from the Ministry was sent to Mr. Dominique Bellemare

at his law office. He nonetheless maintains that he does not remember receiving three of

the more important communications:

 two faxes of December 1993, in which François Rocheleau, a project manager at

the Ministry, provides information about taking soil samples from Ms. Hone-

Bellemare’s property for analysis;³¹and,

 a letter dated February 17, 1994, in which Mr. Rocheleau refers to the results of

the analysis of the samples, that is, that the concentrations of manganese on the

property are 2 to 24 times higher than elsewhere in the Beauharnois area.³²

29

Exhibit D-28, Letter from Dominique Bellemare of August 21, 1992.

He acknowledges receiving: Letter of December 9, 1992 (exhibit D-29), Letter of July 7, 1993 (exhibit

30

D-29). He denies receiving: Fax of December 14, 1993 (exhibit D-29), Fax of December 17, 1993

(exhibit D-29), and Letter of February 17, 1994 (exhibit D-30).

Exhibit D-29, Correspondence from Ministry of the Environment 1992-1993, en liasse.

31

32

Exhibit D-30, Letter from the Ministry of the Environment of February 17, 1994. The Bio Géo Report of

May 1994 indicates that levels on Ms. Hone-Bellemare’s property are 2 to 40 times greater than in the

surrounding area (D-5, page 19). The Ministry of the Environment letter of February 1994 indicates that

the levels are 2 to 24 times greater on her property (D-30, page 1). No explanation was provided by the

parties for the difference.

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PAGE : 18

[73] Mr. Dominique Bellemare maintains that he did not know that Bio Géo had been

on his mother’s property, let alone the content of the company’s report.

[74] Almost twenty years later, it is difficult to determine whether Mr. Dominique

Bellemare received and read the two faxes (about when samples would be taken) and

the letter (about the results of the analysis of the samples). He testified that he does not

recall receiving either of the two faxes or the letter. Given where the correspondence was

sent – to a law firm – it is more probable than not that the faxes and the letter arrived at

his office. The address and the fax number are correct. It is, nonetheless, possible that

Mr. Dominique Bellemare did not read them. He testified that he was out of the country

at the time.³³

[75] In any event, even if Mr. Dominique Bellemare received and read the two faxes

and the letter about the Bio Géo testing, Elkem’s argument that this correspondence – in

and of itself – is sufficient to begin the clock for the purposes of calculating legal delays

cannot succeed. This is because of the nature of the correspondence and the assurances

given by the Ministry.

[76] The correspondence is an exchange between a concerned citizen (Dominique

Bellemare) and a government body (the Ministry of the Environment), in which the citizen

is trying to alert the government body to a potentially problematic situation and the

government body reassures the citizen that things are being taken care of.

[77] In the February 1994 letter, Mr. Rocheleau informs Mr. Bellemare that the

manganese levels on The Land are high, but he also informs him that – currently – the

Ministry has not set criteria for what constitutes contamination for manganese in soil and

in underground water. He further informs Mr. Bellemare that a request has been made on

the issue with two internal departments and that he will keep Mr. Bellemare apprised of

developments:

Les résultats préliminaires montrent que le manganèse y serait présent, en

surface, à des taux variant de 2 à 24 fois ceux mesurés à différents endroits

dans le secteur de Beauharnois (bruit de fond). Or, des critères indicatifs

de la contamination de sols et de l’eau souterraine par le manganèse

n’existent pas actuellement au Ministère. (…). Une demande a été faite en

ce sens à notre Direction des programmes de gestion des déchets et des

lieux contaminés (DPGDLC) et à notre Service d’analyse de risque (SAR).³⁴

33

This issue is further complicated by exhibit D-32, Note au dossier, in which François Rocheleau

indicates that Dominique Bellemare telephoned him for an update in June 1994. Such a call could be

interpreted as corroborating both the Plaintiffs’ and the Defendant’s position. François Rocheleau did

not testify. In his Déclaration sous serment of March 4, 2021, he recognizes his signature on various

documents but states that he does not remembers exhibits D-2, D-3 and D-4.

34

Exhibit D-30, Letter from the Ministry of the Environment of February 17, 1994.

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PAGE : 19

[78] Mr. Rocheleau ends his letter with an assurance : Nous vous tiendrons

régulièrement au courant des principaux développements dans ce dossier.

[79] Similar assurances appear in other letters that the Ministry of the Environment sent

to Mr. Bellemare:

 Elkem Métal Canada est l’une des 50 entreprises visées par le Plan d’action Saint-

Laurent. (December 1992)³⁵

 À l’automne 1991 et au printemps 1992, on procédait à certains travaux

d’excavation; les sols contaminés étant graduellement placés en piles à l’abri (…)

Cette terre a été ou sera éliminés conformément aux modes de gestion approuvés

par le ministère. (December 1992)³⁶

 Bien que le site d’Elkem Métal à Beauharnois n’ait jamais été classé lieu

d’intervention prioritaire, notre intention est de procéder à une investigation. (July

1993)³⁷

 En ce qui a trait à l’élément de votre intervention qui concerne la contamination de

votre propriété suite aux activités d’Elkem, tout progresse normalement.³⁸

[80] Given these representations, it was reasonable for Mr. Dominique Bellemare not

to file a judicial application after his exchanges with the Ministry of the Environment in the

1990s. The situation was evolving and he had been assured that things were being taken

care of.

[81] Worry, concern and the fact that a party is asking questions do not suffice to “begin

the clock” for the purpose of calculating delays. Instituting a lawsuit is a serious act – as

opposed to a blind fishing expedition – which must be supported by clear, known facts.³⁹

1.3. Information Imbalance

[82] The information imbalance between the parties is another factor to be considered

in this case. The theory of laches is a discretionary remedy and, as such, any relevant

issues may be considered in its application.⁴⁰

[83] It was Elkem that mandated Bio Géo to take soil samples from Ms. Hone-

Bellemare’s property and to analyze them. The results were presented to Mr. Allen

Desjardins, then president of Elkem. The report includes some assurances, such as the

35

Exhibit D-29, Correspondence from Ministry of the Environment 1992-1993, en liasse.

Exhibit D-30, Letter of February 17, 1994.

36

37

38

39

Dufour c. Havrankova, 2013 QCCA 486, paragraph 3.

40

Céline Gervais, L’injonction (2^eedition), Cowansville, Éditions Yvon Blais, 2005, page 14.

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PAGE : 20

fact that the amount of manganese on The Land is comparable to amounts found in other

parts of the world and that, at the time, there were no set norms for acceptable levels of

manganese.⁴¹

[84] However, the Bio Géo report also includes findings of serious concern: levels of

manganese on the Hone-Bellemares’ property are 2 to 40 times greater than they are in

other rural sectors of Beauharnois and exceptionally high concentrations are found in

samples taken close to the old Elkem site and the shoreline.⁴²Elkem did not share this

information with the Hone-Bellemares.

[85] This is a case about the obligations that neighbours owe one another. Context

matters.

[86] The issue at the heart of this case – the scope of the obligations that neighbours

owe one another – is relevant to the analysis of whether the Hone-Bellemares filed their

lawsuit too late. A good neighbour – a reasonable person, acting in good faith – would

share the findings of a report like the 1994 Bio Géo Report with the owners of the property

that is the object of the report.

[87] In these circumstances, it would be perverse to now find that the Hone-Bellemares

cannot sue Elkem because of a report that Elkem had in its possession, but did not share

with its neighbour.⁴³

[88] Elkem argues that Mr. Dominique Bellemare was aware of the existence of the Bio

Géo Report, that he should have made an access to information request with the Ministry

to obtain it, and that his failure to do so is problematic.⁴⁴

[89] Elkem's position is untenable. It puts an undue burden on people living next to

industrial properties, in that they would have to actively seek out information about the

harm they suspect they may be subject to.

41

Exhibit D-5, Caractérisation environnementale des sols de surface, prepared by Bio Géo

Environnement in May 1994, page 11, last paragraph and page 14, last paragraph.

Exhibit D-5, page 19. Samples taken at points P-3, P-4, P-5, P-11 and P-17 reveal manganese levels

42

up to 15 000 mg/kg. As appears from Figure 1, Plan de localisation, at the end of the report (D-5), these

places are close to the old Elkem site and the shoreline.

These observations are informed by the obligation to act in good faith in the exercise of one’s right

43

(articles 6, 7 and 1375 of the Civil Code of Québec) and the obligation of parties to a contract to share

pertinent information; see: Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554. While Elkem and the

Hone-Bellemares were not bound by a contract, both parties nonetheless have an obligation to act in

good faith.

44

Plan d’argumentation de la partie défenderesse, paragraphs 95, 96 and 105. In support of its argument,

Elkem invokes exhibit D-32, Note au dossier of June 15, 1994, in which François Rocheleau of the

Ministry of the Environment notes a conversation he had with Dominique Bellemare and in which

Dominique Bellemare indicated that he wanted a copy of the report: souhaite pouvoir obtenir une copie

du rapport.

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PAGE : 21

[90] Mr. Dominique Bellemare acted reasonably. He contacted the Ministry of the

Environment about an environmental issue that concerned him. Elkem, to the contrary,

failed to act as a good neighbour in not providing the Hone-Bellemares with a copy of the

1994 Bio Géo Report upon receiving it.

2. Is Elkem liable under the fault-based liability regime?

[91] The Hone-Bellemares argue that Elkem is liable for restoring The Land and all of

the damages caused by the operation of its plant between 1984 and 1991 under the

ordinary rules of civil liability.

[92] The argument is unfounded.

[93] Classic liability requires proving fault, damages and a causal link between the

defendant’s fault and the plaintiff’s damages.⁴⁵In deciding whether an activity constitutes

a fault, norms in place at the time of the events at issue must be considered.⁴⁶Looking

back and judging past actions through the lens of today’s norms is inappropriate and

unfair.

[94] There is no evidence that, when it operated its plant, Elkem substantially violated

acceptable norms of the day. There were minor issues with the plant’s filtration system,

but that is all.

[95] A report prepared by Elkem’s environmental expert reveals that, from 1984 to

1988, the plant’s filtration system operated at 90% capacity and, from 1989 to 1991, it

operated at 75% capacity.⁴⁷

[96] There is no evidence that Elkem committed a fault. There is no proof in the record

that authorities issued notices, infractions or fines because of problems with the infiltration

system. Moreover, there is no evidence that Elkem was called on to fix the problem and

neglected to do so or that similar plants operating in Quebec at the time had fully-

functioning filtration systems. Further, when the plant was operating, manganese was not

included in the Ministry of Environment’s list of substances which qualify as contaminants

when present in certain concentrations.⁴⁸

45

Civil Code of Québec, article 1457.

46

Odette Nadon, La gestion et la responsabilité liées aux terrains contaminés et aux milieux sensibles au

Québec (3^eédition), Montreal, LexisNexis, 2021, paragraph 480.

47

Exhibit D-15, Elkem’s Environmental Expertise of 2017, page 4, lines 11 to 14.

It was included in the Ministry of the Environment’s 1998 Politique de protection des sols et de

48

réhabilitation des terrains contaminés, Sainte-Foy, Les Publications du Québec, 1998, page 124.

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PAGE : 22

3. Is Elkem liable under the no-fault liability regime for neighbourly

annoyances?

[97] Elkem is nonetheless liable under the no-fault liability regime for neighbourly

annoyances which “relates to the result of the owner’s act rather than to the owner’s

conduct.”⁴⁹

[98] Article 976 of the Civil Code of Quebec (the current home of the no-fault liability

regime for neighbourly annoyances) is in the Code’s “Property” book, whereas article

1457 (home of fault-based civil liability) is in the “Obligations” book. This is because the

no-fault regime has to do with property, not norms of behaviour.

[99] It is now well-established that the right of ownership has limits.⁵⁰Property owners

have the right to “use, enjoy and dispose” of their property as they please, but they may

not do so in ways that infringe on their neighbour’s right to “use, enjoy and dispose” of

their property.⁵¹

[100] To succeed in a claim based on the no-fault liability regime for neighbourly

annoyances, a plaintiff must prove (i) that they are subject to an abnormal annoyance;

and (ii) that the defendant materially contributed to the annoyance. The Hone-Bellemares

have proven both.

[101] The debate is about whether the levels of manganese on The Land constitute an

abnormal neighbourly annoyance and whether Elkem substantially contributed to them.

As such, these issues will be addressed first. The situation in Zone R is more

straightforward and will be addressed in section 3.4.

3.1. Manganese as an Abnormal Annoyance that Need not be Tolerated

[102] The parties’ environmental experts agree that the following criteria, based on the

Quebec Ministry of the Environment’s norms, apply to Ms. Hone-Bellemare’s property:⁵²

Criteria

A

Land Use

Maximum acceptable amount of

manganese

No contamination 1 000 mg/kg

49

50

St. Lawrence Cement Inc. v. Barette, 2009 SCC 64, para 86.

Civil Code of Québec, article 976; St. Lawrence Cement Inc. v. Barette, 2008 SCC 64; Spieser c.

Procureur général du Canada, 2020 QCCA 42.

Civil Code of Québec, article 947: “Ownership is the right to use, enjoy and dispose of property fully

and freely, subject to the limits and conditions for doing so determined by law.”

Exhibit T-2, Expertise complémentaire, page 9 (answer to question 7.ii) based on Guide d’intervention

– Protection des sols et réhabilitation des terrains contaminés, Ministère de l’Environnement et de la

lutte contre les changements climatiques, Québec, Bibliothèque et Archives nationales du Québec,

2021, page 287 and Land Protection and Rehabilitation Regulation, c Q-2, r. 37 Schedules I and II.

51

52

760-17-003265-132

PAGE : 23

B

C

D

Residential use

Industrial use

1 000 mg/kg

2 200 mg/kg

11 000 mg/kg⁵³

Soil to be buried

[103] The parties’ environmental experts also agree about the amount of manganese in

the soil on Ms. Hone-Bellemare’s property.⁵⁴As they explain, the following methodology

was used to determine the levels and it is reliable: in 2012, soil samples, at different depth,

were taken at different places on the property; the samples were analyzed for

manganese; the property was then divided in 40 unequal parcels; and, using a method

known as the Thiessen Polygon Method, the levels of manganese on each parcel, at

different depths, was estimated.

[104] In the sketch that appears below, the highest level of manganese detected in each

of the 40 parcels is indicated.⁵⁵The complete data regarding manganese levels on the

40 parcels is reproduced in annex to this judgment.

53

The “D” criteria is found in the Annexe I of the Regulation respecting the burial of contaminated soils,

CQRL, c Q-2, r 18 and not in the Guide d’intervention or the Land Protection and Rehabilitation

Regulation. The environmental experts nonetheless include it in exhibit T-2, Expertise complémentaire.

Exhibit T-2, Expertise complémentaire, page 2 (answer to question 2.i) and page 9 (answer to question

54

7.ii).

55

The sketch at paragraph 104 is based on data and figures in Exhibit T-2, Expertise complémentaire,

including the experts’ answer to question 2.i (page 2), the Schématisation du gradient de concentration

en manganèse dans le sol (page 12) and Tableau A, Volumes et superficies calculés selon la qualité

environnementale des sols interpretée (pages 13 and 14). There were some discrepancies between

the Schématisation and Tableau A. In case of a discrepancy, the information from Tableau A was used.

The sketch at paragraph 104 is a tracing of the Schématisation du gradient de concentration en

manganèse dans le sol (T-2, page 12). It is included to facilitate the reader’s understanding. The sketch

was made by the undersigned. The sketch is not evidence; exhibit P-10(D.1) is.

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[105] The lowest concentrations, in the first five centimeters of soil, are in parcels 11, 12

and 38, all of which are on the east side of The Land, far away from the old Elkem site.⁵⁶

[106] The parcels with the highest levels of manganese are parcels 1, 19, 20, 22, 23 and

34, which are close to the Elkem site and on the shores of the Lake.

[107] In every parcel, there is soil in which the concentration of manganese is more than

1 000 mg/kg, the maximum recommended level for “B” land according to the Quebec

Ministry of the Environment. In places close that abut the old Elkem site, such as parcel

20, levels of manganese are 29 to 51 times greater than the recommended “B” level of

1 000 mg/kg.⁵⁷

[108] The Hone-Bellemares do not have to tolerate this.

56

Exhibit T-2, Expertise complémentaire, Annexe I, Tableau 1 – Résultats d’analyses des sols pour le

manganèse (mg/kg), produced in annexe to this judgment.

Exhibit T-2, Expertise complémentaire, page 14, Table A. Levels range from 29 000 mg/kg to 51 000

57

mg/kg on parcel number 20

760-17-003265-132

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[109] The manganese on The Land meets the definition of an abnormal neighbourly

annoyance because its high concentrations exceed the recommended levels set by the

Ministry of the Environment, the Hone-Bellemares’ use The Land and their particular

relationship with it. This finding is based on objective criteria and the particular facts of

this case.⁵⁸

[110] It is appropriate to use the “B” criteria in deciding the issue and determining what

the Hone-Bellemares should be expected to tolerate. According the Ministry of the

Environment’s Guide d’intervention – Protection des sols et rehabilitation des terrains

contaminés, “B” land includes residential land, as well as municipal parks, playgrounds,

elementary and high schools, daycares and jails.⁵⁹

[111] The areas around the Manor, stone house, cottages and other buildings easily

qualify as “B” land. Mr. Nicolas Bellemare resides in the stone house full-time. Other

members of the family and their guests stay in the other buildings from time to time. Their

children and grandchildren play there and they have used the land for gardening and

horticultural projects.

[112] As for the wooded areas, for the purposes of determining whether the manganese

constitutes an abnormal neighbourly annoyance, it is also appropriate to use the “B”

criteria of 1 000 mg/kg.

[113] The fit is not perfect as no one lives in the wooded areas. However, the “C” option

is untenable and would make less sense. According to the Ministry of the Environment’s

Guide d’intervention – Protection des sols et rehabilitation des terrains contaminés, “C”

land – where the highest acceptable level of manganese is 2 200 mg/kg – is land that is

used for industrial, commercial, institutional and recreational purposes.⁶⁰The wooded

areas are certainly not used for industrial, commercial or institutional purposes.

[114] “Recreational Purposes” may, at first blush, appear to be an appropriate descriptor

for the current use that Ms. Hone-Bellemare and her family make of the wooded areas.

However, they should not be limited in the uses they may make of it in the future.

[115] As explained by Ms. Hone-Bellemare in her sworn declaration, high levels of

manganese mean that there are limits on the future uses that she may make of her

property, such as allowing her children to build additional houses on it.

[116] As appears from the Ministry of the Environment’s Guide d’intervention –

Protection des sols et rehabilitation des terrains contaminés, when planning a project

58

Civil Code of Québec, article 976; Trasler c. Chalati, 2018 QCCA 623, paragraph 77; Denys-Claude

Lamontagne, Bien et propriétés (8^eed), Montreal, Éditions Blais, 2018, paragraph 237.

59

Guide d’intervention – Protection des sols et réhabilitation des terrains contaminés. Ministère de

l’Environnement et de la lutte contre les changements climatiques, Québec, Bibliothèque et Archives

nationales du Québec, 2021, pages 221.

Guide d’intervention – Protection des sols et réhabilitation des terrains contaminés, 2021 (see footnote

60

59 for full cite), pages 221 and 287.

760-17-003265-132

PAGE : 26

such as a new community garden, if contaminants are present in excess of the “B” criteria

in the soil, additional restoration measures are needed before the project can proceed.⁶¹

The Hone-Bellemares should not have to tolerate such restrictions on the use that they

make of The Land in the future.

[117] The presence of manganese in excess of the “B” criteria curtails Ms. Hone-

Bellemare’s ability to dispose of her property and use it as collateral.⁶²

[118] Stigma is attached to property on which there is a contaminant. As explained by

Professor Nadon: si on limite la réhabilitation d’un terrain pour le rendre acceptable pour

une activité industrielle, on impose une restriction à cet immeuble. Il ne pourra servir pour

des résidences sans faire l’objet de travaux additionnels.⁶³

[119] In the particular circumstances of this case, use of the “B” criteria for the entirety

of the property is also appropriate because this is not a situation in which property owners

are complaining about the effects of industrial activities after having moved to an industrial

area. The Hone-Bellemares did not buy land next to an industrial park with the

unreasonable expectation of enjoying pristine nature in all its glory. Rather, industries

came to the Beauharnois region after they had established their use of The Land.

[120] Since the 1880s, the Rodier-Thibaudeau-Hone-Bellemare family and their

descendants’ enjoyment of The Land has been intimately linked to its natural state. This

is the “local usage”⁶⁴that should be considered in determining whether manganese in

concentrations above 1 000 mg/kg constitutes an abnormal neighbourly annoyance.

[121] Mr. Dominique Bellemare evidently enjoys the diversity of flora and fauna on The

Land. He has spent a great deal of time cataloguing the species, both plant and animal,

on it.⁶⁵The same is true for other family members. At trial, Mr. Nicholas Bellemare spoke

of the time he spent – and still spends – in the woods, hunting and “being in” nature.

61

Guide d’intervention – Protection des sols et réhabilitation des terrains contaminés, 2021 (see footnote

59 for full cite), page 162, Figure 10, Les jardins communautaires : évaluation de la contamination et

du risque pour la santé lors de l’implantation de nouveaux jardins.

Déclaration sous serment d’Élisabeth Hone-Bellemare of February 22, 2021, paragraph 17: Cette

62

contamination empêche pour le moment une éventuelle vente ou un développement de la propriété ou

la construction de nouveaux bâtiments pour mes autres enfants.

63

Odette Nadon, La gestion et la responsabilité liées aux terrains contaminés et aux milieux sensibles au

Québec (3^eédition), Montreal, LexisNexis, 2021, page 206.

64

Civil Code of Québec article 947. Now that the Elkem plant is closed, the City of Beauharnois is

contemplating a récréatif-commecial affectation for areas north of the 132 highway (exhibit P-4, Rapport

d’enquête et d’audience publique of January 2011, page 10, second paragraph).

For example, in the Hone-Bellemare family’s written submissions at the BAPE hearings on restoration

65

of the shoreline, Dominique Bellemare filed documents cataloguing 230 species of birds, 3 species of

snakes, 2 species of turtles, and 8 species of amphibians (frogs and toads). The family also catalogued

321 species of plants on The Land, from acalypha to zizia. See: Exhibit P-4.f, Document about Fauna

and Flora prepared by Dominique Bellemare (part of an answer to a Request for Particulars after

Dominique Bellemare’s Examination), annexe 1 and tables 2, 3 and 4.

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PAGE : 27

[122] After hearing the three Bellemare brothers who testified at trial and analysing the

sworn statements filed by their siblings and their mother, I conclude that The Land has

acted as a refuge from city life for the Hone-Bellemares, a place where they can spend

time with family and commune with The Land.

[123] Elkem argues that the fact that the concentration of manganese on the Hone-

Bellemare property exceeds levels recommended by the Quebec Ministry of the

Environment does not necessarily mean that the manganese constitutes an abnormal

neighbourly annoyance.

[124] While it is correct that the violation of a norm – in and of itself – does not always

and automatically lead to the conclusion that a disturbance constitutes an abnormal

annoyance for the purposes of Quebec’s no-fault liability regime for neighbourly

annoyances. There may be situations in which an activity violates a norm, but does not

constitute a neighbourly annoyance.⁶⁶

[125] Violation of a norm is nonetheless an important consideration, especially in a case

like this one, where the parties have a strong attachment to the property at issue and to

the nature which resides there. Once again, context matters. In this case, the Hone-

Bellemares are attached to The Land and have a relationship with it.

[126] The Ministry of Environment’s Guide d’intervention – Protection des sols et

réhabilitation des terrains contaminés’s was initially intended to establish standards for

experts authorized to make site characterization studies and issue certificates under the

Environment Quality Act.⁶⁷Now, the Ministry recommends using the guide for deciding

contamination issues that do not fall within the purview of the Environment Quality Act.⁶⁸

[127] The presence of contaminants in concentrations that exceed recommended levels

has been repeatedly found to constitute an abnormal neighbourly annoyance:

 nul n’a le droit de polluer et la contamination du terrain d’un voisin en sus des

critères tolérés constitue (…) un inconvénient anormal qui excède les limites de la

tolérance (art. 976 C.c.Q.).⁶⁹

66

For example, if the plaintiffs had recently purchased the land as an investment and had an accepted

offer to sell it to a buyer who was aware of the manganese, it is possible that the manganese would not

qualify as an abnormal annoyance giving rise to a claim under the no-fault regime.

CQLR c Q-2, article 31.66.

67

68

Guide d’intervention – Protection des sols et réhabilitation des terrains contaminés, 2021 (see footnote

59 for full cite), page 14, section 4.1.1 : De manière générale, même en dehors du cadre de l’application

de la section IV du chapitre IV de la LQE le Ministère recommande de respecter le contenu du Guide

de caractérisation des terrains pour effectuer toutes les études de caractérisation de terrains

contaminés. Le responsable s’assure ainsi d’avoir une étude de qualité couvrant tous les aspects de

la problématique.

69

108651 Canada Inc. c. Entreprises CDE ltée, 2015 QCCS 1782, paragraph 70.

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PAGE : 28

 Une chose demeure certaine, personne n’a le droit de polluer et la contamination

du terrain de voisins constitue un inconvénient anormal qui excède les limites de

la tolérance.⁷⁰

[128] The same holds true in this case.

[129] Another reason for which the Hone-Bellemares do not have to tolerate manganese

on The Land in excess of 1 000 mg/kg is the health risk – and accompanying uncertainty,

worry and stress – posed by such levels.

[130] In 2010, when Messrs. François and Nicholas Bellemare learnt of the results of

the Bio Géo Report, they immediately thought of their children and wondered what

exposure to manganese over the years might have done to them. Mr. Dominique

Bellemare had similar concerns. In the context of the 2010 BAPE hearings, he filed an

article entitled “Manganese in water linked to lower IQ in children”.⁷¹In her sworn

declaration, Ms. Élisabeth Hone-Bellemare mentions that two of her sisters who spent

time on The Land both died of cancer, the causes of which remain unknown.⁷²

[131] The family’s worries about the health risks caused by manganese on The Land

are not frivolous. They are real even though there is no scientific proof in the record of a

direct correlation between high concentrations of manganese and health problems.

[132] The Hone-Bellemares’ position aligns with the widely accepted precautionary

principle in environmental matters, according to which, in so far as possible, exposure to

substances that pose a risk to human health should be avoided.⁷³

[133] The maximum accepted concentrations for contaminants set by the Quebec

Ministry of the Environment – including 1 000 mg/kg of manganese for soil in “B” land –

are based on protecting human health.⁷⁴A risk to one’s health is not the type of

“annoyance” that a landowner is expected to tolerate as a result of their neighbour’s

exercise of their property rights.

70

Immeubles Serge Bourdeau inc. c. Robert, 2017 QCCS 2092, paragraph 31.

Exhibit P-4f, Anne Sutherland, “Manganese in water linked to lower IQ in children”, Montreal Gazette,

71

September 21, (201-, year illegible) (part of an answer to a Request for Particulars after Dominique

Bellemare’s Examination).

72

Déclaration sous serment d’Élisabeth Hone-Bellemare of February 22, 2021, paragraph 20.

Jean-Louis Baudoin and Patrice Deslauriers, La responsabilité civile (7^thedition), Cowansville :

73

Éditions Yvon Blais, 2007, page 159: Ce principe consiste essentiellement à responsabiliser l’individu

pour le défaut d’anticiper et de prévenir des risques qui restent impossibles à vérifier dans le présent,

mais dont la réalisation future est susceptible d’entraîner un préjudice sérieux et généralisé. See, also:

114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson, 2002 SCC 40, paragraph 31 and

following.

74

Guide d’intervention – Protection des sols et réhabilitation des terrains contaminés, 2021 (see footnote

59 for full cite), footnote 5 to Annexe 2: Critères validés par une approche de protection de santé

humaine (évaluation de risque réalisée à partir de scénarios génériques en fonction de l’usage) par le

Service d’analyse de risque du ministère de l’Environnement et de la Faune.

760-17-003265-132

3.2. Elkem’s Contribution to the Manganese on The Land

PAGE : 29

[134] Manganese, in dust and slag form, is one of the by-products of ferromanganese

and ferrosilicon production. Elkem’s plant in Beauharnois was no exception. It emitted

manganese into the environment between 1984 and 1991. This is not contested.

[135] Manganese from Elkem’s operations migrated – through the airborne

transportation of dust and leaching in the soil – onto Ms. Hone Bellemare’s property. This

is not contested either.⁷⁵

[136] Nonetheless, Elkem argues that it is not liable for the manganese on The Land

because there were other industrial players in the area whose operations also had

manganese as a by-product.

[137] While Elkem is right that the Hone-Bellemares did not prove – or even attempt to

prove – that Elkem’s operations are the only source of the manganese on The Land, this

does not mean that Elkem is not liable. The Hone-Bellemares proved that Elkem

materially contributed to the high levels of manganese on The Land and this is enough to

engage its liability.

[138] At trial, the location of other industrial operations in the vicinity of Ms. Hone-

Bellemare’s property were identified as follows:⁷⁶

75

Exhibit T-2, Expertise complémentaire, page 1 (answer to question 1).

This sketch is based on Exhibit P-10(D.1) which Nicolas Bellemare annotated during his testimony to

76

indicate the location of the various companies’ plants, as well as uncontested information in the record

about the plants’ years of operation. The sketch at paragraph 138 is a tracing of Exhibit P-10(D.1). It is

included to facilitate the reader’s understanding of the reasons of this judgment. The sketch was made

by the undersigned. The sketch is not evidence; exhibit P-10(D.1) is.

760-17-003265-132

PAGE : 30

[139] St. Lawrence Alloys and Union Carbide initially operated a plant on the south side

of the 132 highway. They later expanded to the north side of the highway, next to Ms.

Hone-Bellemare’s property. This is the plant that was sold to Elkem in 1984.

[140] Of all of the companies carrying out industrial operations in the area, the following

had manganese as a by-product:

 Union Carbide, next to The Land (1973 to 1984)

 Elkem, next to The Land (1984 to 1991)

 Chromasco, about a kilometer to the south of The Land

(1953 to 1965)

 Timminco, about a kilometer to the south of The Land

(1965 to 1989).

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PAGE : 31

[141] The evidence does not establish the exact contribution of Elkem’s operations from

1984 to 1991 to the high levels of manganese on The Land. Unsurprisingly, it was not

possible for the parties’ experts to quantify precisely – with percentages or otherwise –

the respective contributions of the Chromasco, Timminco, Union Carbide and Elkem to

the manganese that has accumulated on The Land over the years. Doing so would involve

analyzing the emissions from plants that have been closed for decades, as well as the

levels of manganese on The Land at different points in time.

[142] As Elkem’s environnemental expert acknowledges: Le niveau de détails requis

concernant les émissions de ces usines est cependant difficile, voire impossible, à établir

puisque la production a cessé en 1989 pour l’usine Timminco et en 1991 pour l’usine

d’Elkem.⁷⁷

[143] After testifying, the parties’ environmental experts were asked to discuss the

following question and to try to agree on an answer: Outre les sources naturelles, quelle

est la source (ou quelles sont les sources) du manganèse sur le terrain Bellemare?⁷⁸

They responded that they could not agree on an answer.

[144] In their respective answers, both experts acknowledge that Elkem’s operations

were a contributing factor.

[145] Mr. Duquette, Elkem’s environmental expert, answered: La déposition aéroportée

de particules de manganèse provient en grande partie des opérations d’Union Carbide

(1973-1984) et d’Elkem (1984-1991) et l’autre partie des opérations de Chromasco et

Timminco (underlining in the original).⁷⁹

[146] While, Mr. Laberge, the Hone-Bellemare’s environmental expert answered: La très

grande partie des opérations d’Union Carbide et d’Elkem et l’autre partie des opérations

de Chromasco et Timminco (underlining in the original).⁸⁰

[147] The difference is one of semantics, not substance.

[148] The experts agree that there are four contributing factors to the manganese on

Ms. Hone-Bellemare’s property, two of which – Union Carbide and Elkem – are

responsible for “a large part” of it.

[149] The high level of certainty that is the hallmark of scientific causality is not required

to establish legal causality.⁸¹In civil matters, a plaintiff must prove their case on a balance

77

Exhibit D-15, Elkem’s Environmental Expertise of March 2, 2017, page 4.

Minutes of Hearing of March 12, 2021 page 3 of 6.

Exhibit T-2, Expertise complémentaire, page 1, answer to question 1.

78

79

80

81

Spieser c. Procureur général du Canada, 2020 QCCA 42, paragraph 249; Laferrière v. Lawson, 1991

87 (SCC), pages 606 to 607.

760-17-003265-132

PAGE : 32

of probabilities.⁸²Often, it is necessarily to draw inferences from the available evidence

as direct evidence of the facts in dispute is not available.

[150] Cases in which there are several causes of damages (or of an abnormal

neighbourly annoyance) can be cumbersome. Common sense and balancing

probabilities plays an important role in such cases.⁸³As the Supreme Court of Canada

explains: “The ‘but for’ test is unworkable in some circumstances, so the courts have

recognized that causation is established where the defendant’s negligence ‘materially

contributed’ to the occurrence of the injury (…) The causation test is not to be applied too

rigidly.”⁸⁴

[151] In this case, it would be inappropriate to analyze the causation issue too rigidly

because of the lapse of time and the nature of the issues at hand: the content of smoke

emanating from the stacks of four different plants several decades ago and the wind

direction on Lake Saint-Louis since the mid-1900s.⁸⁵

[152] Elkem’s argument that the Hone-Bellemares must prove that the manganese on

The Land soit causé uniquement by Elkem’s activities for their lawsuit to succeed is

unfounded. The same is true of Elkem’s argument that there is a une rupture du lien de

causalité which frees it of liability.⁸⁶

[153] When there are several causes which – cumulatively – caused damages or an

abnormal neighbourly annoyance, a defendant who materially contributed to the damages

or annoyance is liable: “The parties potentially liable may (…) be numerous and

anonymous, but it would suffice if those that were identified were at least susceptible of

having contributed materially.”⁸⁷

[154] For the reasons that follow, the evidence, both lay and expert, proves that Elkem’s

industrial activities materially contributed to the high concentrations of manganese on The

Land. As concerns most of Ms. Hone-Bellemare’s property (with the exception of Zone

R), it was transported there by airborne dust particulate.

82

Civil Code of Quebec, articles 2803, 2804 and 2811.

Alphacell Ltd v. Woodward, [1972] 2 All E.R. 475, page 490.

Athey v. Leonati, 1996 183 (SCC), paragraphs 15 and 16.

Athey v. Leonati, 1996 183 (SCC) paragraph 16. See, also: Nadon v. Montréal, 2007 QCCS

83

84

85

150, paragraphs 292 and following.

Plan d’argumentation de la partie défenderesse, paragraphs 159 and 160. These comments also apply

86

to Elkem’s environmental expert’s requirement that a modèle de dispersion atmosphérique is

necessary to determine the respective contributions of the four companies (exhibit D-15, Elkem’s

Expertise of March 2017, page 4, lines 21 to 26).

87

Nadon v. Montréal, 2007 QCCS 150, paragraph 296. See, also : Kirschenbaum-Green v. Surchin,

[1997] R.R.A. 39 (C.A.); Lalande c. Compagnie d’arrimage de Québec ltée, 2020 QCCS 928,

paragraphs 48-53; Elizabeth Brubaker, Property Rights in the Defence of Nature, Toronto: Earthscan

Publications Ltd., 1995, page 47

760-17-003265-132

i) West-East Horizontal Gradient

PAGE : 33

[155] As illustrated by the sketch at paragraph 104, the highest concentrations of

manganese are in parcels 22, 23 and 34 on the west side of The Land and on the

shoreline, close to the old Elkem site.⁸⁸The lowest amounts are found in parcels 11, 12

and 38, on the east side, further away from the old Elkem site.

[156] This evidence supports the Hone-Bellemares’ environmental expert’s observation

that there is un gradient ouest-est des concentrations de manganèse and that Les

concentrations les plus élevés se trouvent généralement, pour chaque horizon de sol, à

l’endroit de la portion ouest de la propriété située à proximité de l’ancienne usine

d’Elkem.⁸⁹

[157] It can be inferred from the west-east distribution pattern that dust particulate from

operations at the Union Carbide/Elkem site is a more important source of airborne

manganese on The Land than dust particulate from the Timminco/Chromasco site.

ii)

Vertical Gradient

[158] There is another pattern in the distribution of manganese on most of the parcels

on The Land (with the exception of parcels in Zone R): the concentration of manganese

is higher close to the surface than it is lower down.

[159] For example, in parcels 6 and 10 the levels of manganese are as follows:

Parcel 6

Parcel 10

Depth

Manganese mg/kg

↑

0 – 5 centimeters

3 400

2 800

1 400

490

5 000

2 400

1 300

740

5 to 10 centimeters

10 to 15 centimeters

15 to 20 centimeters

20 to 30 centimeters

460

370

(increase in

manganese)

88

89

Parcels 1, 19 and 20 also have very high concentrations of manganese. They are in Zone R which will

be dealt with in section 3.4 of this judgment.

Exhibit P-8, Elkem’s Environmental Expertise of October 19, 2006, page 4.

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PAGE : 34

[160] The pattern of more manganese in the first 5 centimetres of the soil than lower

down is notable, though there are a few exceptions.⁹⁰This distribution – with higher

concentrations of manganese near the surface and less manganese lower down –

supports the conclusion that significant amounts of manganese on The Land are there

because of airborne transportation of dust particulate.

iii)

Winds

[161] The parties do not agree on the direction in which the wind blows on the shores of

Lake Saint-Louis.

[162] Two of the brothers who testified at trial, Messrs. Dominique and Nicholas

Bellemare, both said it blows from the west to the east.

[163] In Elkem’s written submissions, the company’s lawyers claim that the wind

direction is more accurately described as being north easterly, which increases the

likelihood that Chromasco/Timminco’s operations were a significant source of

manganese on The Land because of its location to the south of Ms. Hone-Bellemare’s

property.⁹¹

[164] Neither party filed information from Environment Canada or another independent

body about wind direction.

[165] Mr. Nicholas Bellemare’s testimony on the subject was convincing. He explained

that he is a hunter and, as such, he pays particular attention to wind direction. Further, he

is the only witness who lives on The Land full-time.

[166] In comparison, Elkem’s arguments based on an interpretation of the Hone-

Bellemare environmental expert’s indications gestuelles⁹²are of little help.⁹³

[167] Based on the available evidence, it is more likely than not that the winds in the

area are westerly, which leads to the conclusion the Chromasco/Timminco’s industrial

operations are not a significant source of manganese on The Land, as compared to the

contribution of Union Carbide/Elkem.

90

There are some exceptions, but they are not relevant. One is in Zone R (parcel 20). In the other

exceptions, the trend of higher concentrations lower down is not relevant because it is in the first 15

centimeters only (parcels 7, 11, 28, 31, 34 and 37). The last exception in parcel 38 which I find to be

an anomaly given the trend in all of the other parcels.

Plan d’argumentation de la partie défenderesse, paragraph 154.

91

92

93

Similarly, the basis for Elkem’s environmental expert’s observations about wind directions is not clear.

760-17-003265-132

iv) Manganese Levels in the Greater Montreal Area

PAGE : 35

[168] A study in The Science of the Total Environment found that, in the 1980s and 90s,

the ambient manganese in the Montreal region was substantially higher than it was in the

Edmonton, Toronto and Vancouver regions. The study provides the following explanation:

“The anomalous nature of the Montreal data is due to the presence of a silico- and ferro-

manganese facility located 25 km southwest of the city”.⁹⁴

[169] Elkem’s lawyer argued that the study supports Elkem’s position that Timminco’s

activities are an important source of manganese on The Land. However, the study

supports the opposite conclusion. Data reproduced in it shows that airborne manganese

in Montreal decreased in 1991, the year that Elkem’s plant closed, not 1989, the year that

the Timminco plant closed.⁹⁵This leads to the conclusion that, overall,

Chromasco/Timminco’s contribution to manganese on The Land is less significant than

Union Carbide/Elkem’s contribution.

v)

Union Carbide vs Elkem

[170] Of all the considerations relevant to determining whether Elkem’s contribution to

manganese on The Land meets the threshold of a material contribution, Union Carbide’s

ownership of the plant before Elkem is the consideration that, at first blush, seems to be

an obstacle to the Hone-Bellemares’ claim.

[171] The plant next to Ms. Hone-Bellemares’ property operated – and emitted

manganese into the environment – for a total of 18 years.

[172] Union Carbide owned and operated the plant for 11 years (from 1973 to 1984),

while Elkem owned and operated it for 7 years (from 1984 to 1991). It is tempting to

deduce that Union Carbide is responsible for a portion of the emissions that is equal to

the ratio of time for which it owned and operated the plant, that is, 61.1% (¹¹/₁₈), but such

an approach is not warranted for several reasons.

[173] First, there is the issue of the anti-pollution filtration system at the plant. From 1973

to 1988, the system was functional 90% of the time, while it was only functional for 75%

of the time from 1988 to 1991⁹⁶. It was Elkem that owned and operated the plant for the

entirety of the period during which the system was functioning 75% of the time. It is

therefore likely that more manganese was emitted into the environment when Elkem

owned and operated the plant.

94

Exhibit D-33, M. Egyed, G.C. Wood, “Risk assessment for combustion products of the gasoline additive

MMT in Canada”, Science of the Total Environment 189/190 (1996) 11-20, page 14.

Exhibit D-33, page 14 and Figure 3 at page 15. See, also, exhibit P-17, S. Boudissa and others,

95

“Manganese concentrations in the soil and air in the vicinity of a closed manganese alloy production

plant” in Science of the Total Environment 361 (2006) 67 -72, Abstract at page 1.

Exhibit D-15, Elkem’s Environmental Expertise of 2017, page 4, lines 11 to 14.

96

760-17-003265-132

PAGE : 36

[174] Second, in cases such as this one – where it is not possible to quantify the

respective contributions of several sources of the abnormal annoyance of which plaintiffs

are complaining – analyzing the causality issue and the defendant’s material contribution

with mathematical rigour is inappropriate.

[175] Finally, from a practical and equitable point of view, if Elkem is of the opinion that

Union Carbide contributed substantially to the manganese on The Land and should also

be held liable, Elkem has the option of suing Union Carbide.

3.3. The Absence of Norms in the 1990s

[176] Elkem argues that, in deciding whether its liability is engaged under the no-fault

liability regime for neighbourly annoyances, the fact that the Quebec Ministry of the

Environment had not defined manganese as a contaminant when it operated its plant

should be considered.

[177] The argument is without merit.

[178] It belies a misunderstanding of the nature of the no-fault liability regime. In

determining whether an activity constitutes an abnormal annoyance under the regime

what matters is the nature of the result of the activity, not the nature of the conduct that

produces it.⁹⁷

[179] Whether or not Elkem’s operations between 1984 and 1991 violated norms of the

day is, thus, irrelevant. As the term makes clear, the no-fault regime for neighbourly

annoyances is not premised on faulty or blameworthy behaviour. Its focus is on how an

activity affects others, not the actor’s right to engage in the activity.

[180] Adopting Elkem’s reasoning is particularly problematic in neighbourly annoyances

cases involving environmental matters. If the focus is on what was acceptable decades

ago, today’s norms become meaningless when it comes to determining what constitutes

an annoyance.

[181] In St. Lawrence Cement, the leading Supreme Court of Canada case on the no-

fault regime for neighbourly annoyances, the operations of the cement plant at issue were

authorized by a special statute of the Quebec Legislature, but the Court nonetheless

found the owner of the plant liable for the dust and other disturbances caused by its

operations. Compliance with the law and other norms does not automatically immunize a

defendant under the no-fault liability regime for neighbourly annoyances.

3.4. Zone R

[182] The industrial detritus, mainly solidified slag rocks, and the high levels of

manganese in Zone R clearly constitute an abnormal neighbourly annoyance that the

97

St. Lawrence Cement Inc. v. Barette, 2009 SCC 64, paragraph 86.

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PAGE : 37

Hone-Bellemares should not be expected to tolerate and that Elkem’s operations

materially contributed to problems in this area.

[183] The pictures filed by the Hone-Bellemares are eloquent in this regard: they show

numerous black rocks and thick black mud in the area that the family calls the talus or the

“mound”.⁹⁸

[184] In the land parcels close to the old Elkem site, the concentration of manganese is

exceptionally high. In some places, it exceeds the “D” criteria, the highest concentration

allowed for soil that is destined to be buried. In parcel 20 which abuts the old Elkem site,

the concentration of manganese is 51 times greater than the “B” criteria of 1 000 mg/kg

for residential land.⁹⁹

[185] As opposed to parcels elsewhere on The Land, in some of the parcels close to the

old Elkem site, the amount of manganese in the soil increases as one goes lower down.

For example, in land parcel 20, which abuts the old Elkem site, the amount of manganese

in the soil at different depths is as follows:

Depth

Manganese mg/kg

32 000 / 30 1000

36 000

0 – 5 centimeters

5 to 10 centimeters

10 to 15 centimeters

15 to 20 centimeters

20 to 30 centimeters

↓

51 000

29 000

39 000

(increase in

manganese)

[186] This indicates that the source of the manganese is leaching from the old Elkem

site, in addition to airborne transportation.¹⁰⁰

98

Exhibit P-4f, Photos 1 to 10 (part of an answer to a Request for Particulars after Dominique Bellemare’s

Examination) and exhibit P-12.1, Pictures, en liasse.

The lowest concentration found in parcel 20 is 29 000 mg/kg. In parcel 19, in the first 5 centimetres, the

99

concentration is 22 000 mg/kg. See table in Annex to this judgment and the sketch at paragraph 104.

The same pattern appears in parcel 34 which is on the shores of the lake, which also implies leaching.

100

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[187] Given these two patterns in Zone R – exceptionally high levels of manganese

close to the old Elkem site and higher concentrations lower down in the soil in some

parcels – the possibility of the Timminco/Chromasco plant having materially contributed

to manganese in the area can be ruled out. Timminco/Chromasco’s plant is on the other

side of the highway.

[188] Likewise, the solidified slag rocks and other industrial detritus clearly came from

operations at the old Elkem site.

4. What is the appropriate injunctive relief?

[189] Where there is a right, there is a legal remedy.¹⁰¹This is the guiding principle which

informs my analysis of the appropriate relief in this case.

[190] The application for injunctive orders to survey, test, excavate, re-fill, re-plant, and

phytoremediate The Land to reduce the amount of manganese to the “B” criteria of 1 000

mg/kg is well-founded. Orders must be issued to respect the Hone-Bellemares’ rights.

Under Quebec’s no-fault liability regime for neighbourly annoyances, they have the right

not to be obliged to tolerate manganese on The Land in excess of 1 000 mg/kg. For this

right to have meaning, a legal remedy is needed and mandatory injunctive orders are the

only remedy that can attain this result.

[191] The work that has to be done to restore The Land – and respect of the Plaintiffs’

rights – may be extensive, long-term, novel and expensive. This does not change the fact

that the Hone-Bellemares have a right to it.

[192] In some situations, these issues – high costs, the extensive nature of the relief –

may be obstacles to an application for mandatory injunctive relief, but they are not in this

case because of the nature of the activities that produced the annoyance, Elkem’s

financial situation and the Hone-Bellemares’ particular relationship with The Land.

[193] Injunctions are equitable remedies with common law roots.¹⁰²As such, many

considerations are relevant to the decision regarding when they should be issued and

their modalities.¹⁰³

[194] Injunctive orders by which Elkem is ordered to restore The Land respect the

polluter-pays principle which now forms part of both Canadian and Quebec law.¹⁰⁴Elkem

obtained a financial benefit from operating its ferromanganese and ferrosilicon plant for

over a decade, now it is responsible for the remaining consequences of its activities.

101

Ubi jus ibi remedium. For every wrong, the law provides a remedy.

Code of Civil Procedure, article 509. The remedy of a permanent injunction first appeared in Quebec’s

102

1965 Code of Civil Procedure (CQLR c C-25 s. 199, article 751).

Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, paragraphs 23 and 28.

Imperial Oil Ltd. v. Québec (Minister of the Environment), 2003 SCC 58, paragraph 23 and following;

103

104

St. Lawrence Cement Inc. v. Barette, 2009 SCC 64, paragraph 80.

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PAGE : 39

[195] Issuing injunctions is serious. Mandatory injunctions – orders compelling a party

to do something – in particular, should only be granted where there is clear evidence that

they are necessary. This is one such case: levels of manganese in excess of the

residential “B” criteria are of serious concern. Ordering extensive work to be done on The

Land is the only solution to the problem.

[196] Further, injunctive orders will make the Plaintiffs, in so far as possible, “whole

again”¹⁰⁵and make The Land, itself, whole, which will benefit its future users, be they

descendants of the Rodier-Thibaudeau-Hone-Bellemare family or others.

4.1. The Cost Issue

[197] Elkem argues that the cost of works for which it may be liable cannot exceed the

value of Ms. Hone-Bellemare’s property. Given the facts of this case, the argument is

without merit.¹⁰⁶

[198] Before analyzing the issue, it is necessary to determine certain values.

[199] First, the value of Ms. Hone-Bellemare’s property. Two expert evaluators filed

reports and testified at trial.¹⁰⁷They agree that the value of the buildings on the property

(the Manor, the stone house, and other smaller buildings) is between $2.3M and $2.4M.¹⁰⁸

[200] The evaluators disagree on the value of the rest of the property. The crux of the

issue is its potential for residential development, more specifically, how many units can fit

on the property and whether the manganese should be accounted for in the evaluation.

[201] According to Elkem’s evaluator, the rest of the property is worth $565 000.

According to the Hone-Bellemare’s evaluator, it is worth more than ten times this amount,

that is, $6.170M.¹⁰⁹The evaluators agree that these figures should be increased by 15%

to account for recent developments in the real estate market.

105

Civil Code of Québec, article 1590.

There may be outlying cases in which costs are a relevant consideration, for example: an impecunious

106

defendant-neighbour whose activities caused an abnormal neighbourly annoyance, but who did not

obtain any financial benefit from the activity, where the costs of a clean-up exceed the value of the

defendant-neighbour’s property.

107

The Plaintiffs’ expert was Pierre Laliberté and he is the author of exhibit P-7, Rapport d’évaluation –

Domaine Bellemare of Prud’homme Mercier & associés, and exhibit P-18, Grille de comparison. The

Defendant’s expert was Lionel Sanfaçon and he is the author of exhibit D-12, Rapport d’évaluation of

Provost Sanfaçon. In this judgment, Mr. Laliberté will be referred to the “Hone-Bellemare’s evaluator”,

and Mr. Sanfaçon as “Elkem’s evaluator”.

108

Exhibit P-18, Grille de comparison, page 1. The difference results from the $100 000 difference in

evaluation of the Manor. Hone-Bellemares’ appraiser evaluates it at $1.8M, while Elkem’s evaluates it

at $1.7M.

109

Exhibit P-18, Grille de comparison, page 1; Plan d’argumentation de la partie défenderesse, page 54,

pargraphs 216 and 217 and page 57, paragraph 233.

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PAGE : 40

[202] Given the result of my analysis of the cost issue, it is not necessary to decide the

exact value of Ms. Hone-Bellemare’s property. The evidence supports a finding that the

total value is between $3.3M and $7.095M.¹¹⁰

[203] As for the cost of works to reduce the amount of manganese on The Land and

restore it, the parties do not agree on this either. The table below summarizes the figures

put forth by the parties’ environmental experts:¹¹¹

Elkem’s environmental expert

Hone-Bellemares’ environmental

expert

Zone R

Residential Areas

$1 300 000

$1 500 000

$2 100 000

$1 925 000

(because area is larger)

Wooded Areas

$170 000

$2 770 000

(risk-management approach)

(phytoremediation)

or

$ 8 350 000

(rehabilitation)

Total possible

$2 970 000

$6 795 000 to $12 375 000

cost of clean-up

[204] Thus, in the most extreme scenario, the clean-up will cost 3.75 times more than

the value of the property (using $3.3M for the value of the property and $12.375M for the

cost of the clean-up). This ratio is not a bar to the injunctive relief sought.

[205] It is appropriate to infer that Elkem obtained a financial benefit from operating its

ferromanganese and ferrosilicon plant next to Ms. Hone-Bellemare’s property in the

1980s and 90s.

[206] Elkem is a business and it engages in industrial activities to make a profit. There

is no evidence that it sustained a loss or operated the plant for anything other than

commercial reasons. In 1984, Elkem bought the land on which the plant was located and

its assets for $10.585M from Union Carbide. It ceased operating in 1991 and then sold

the property to a third party for an unknown price.¹¹²Today, Elkem ASA is the sole

110

These figures are based on the values put forth by the two expert evaluators and a 15% increase –

according to the Hone-Bellemares’ evaluator’s numbers: $6 170 000 + $925 500 (15%) = $7 095 500;

according to Elkem’s: $2 865 000 + $429 750 (15%) = $3 294 750.

All of the information in the table is from exhibit T-2, Expertise complémentaire, in particular page 3

111

(answer to question 3.iv), page 6 (answer to question 4.iv), page 7 (answer to question 5.iii) page 9

(answer to question 8). There may be additional costs for preliminary, information-gathering work, but

they are not significant enough to change the analysis and there is no evidence in the record about

these costs.

112

Exhibit P-3, Deed of Sale of July 26, 1984 and exhibit P-4, Rapport d’enquête et d’audience publique

of January 2011, page 3.

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PAGE : 41

shareholder of the Elkem Métal Canada Inc. and Elkem ASA’s annual revenues are

approximately 3.5 billion Canadian dollars.¹¹³

[207] In accordance with the polluter-pays principle, Elkem must now assume the cost

of cleaning up the deleterious effects of its industrial activities, even though they were

unintended. The cost of the clean-up does not change this.

[208] Under the no-fault liability regime for neighbourly annoyances, the Hone-

Bellemares are not obliged to tolerate the by-products and after-effects of Elkem’s

industrial activities. The financial consequences for Elkem do not change this either.

[209] In pleading, Elkem relied heavily on a 2003 Superior Court case in which the cost

of decontamination – which exceeded the purchase price of the contaminated property –

was an important factor in the decision not to grant the injunctive relief sought. The

findings of that case cannot be blindly transposed and applied to this case.¹¹⁴

[210] In the 2003 case, the judge is concerned with the plaintiff being unjustly enriched.

He emphasizes the importance of finding the right balance between the principle that

victims of legal wrongs have the right to integral reparation (being “made whole”) and

avoiding unjust enrichment.¹¹⁵

[211] There is no concern about the Hone-Bellemares being unjustly enriched as a result

of the works ordered in this judgment. The purchase price of the property is unknown.

Should Ms. Hone-Bellemare sell her property (or parts of it) one day, the source of her

enrichment will be the property laws that allowed her family to obtain title to The Land in

the 1880s and transmit it from generation to generation, combined with the increase in

property values in the Province of Quebec over the years.

[212] If Elkem is of the opinion that the costs it must assume following the injunctive

orders of this judgment are inequitable because it is bearing the full cost of reducing the

amount of manganese on The Land to pre-industrial levels and its plant’s operations were

not the only source of contamination, there are recourses available. As mentioned, Elkem

may try to recoup part of the costs from other industrial actors who engaged in – and

benefited from – industrial activities in the Beauharnois region that emitted manganese in

the last half of the 20^thcentury.

113

Testimony of Jean Villeneuve on March 9, 2021, supported by exhibit P-14, Elkem ASA, Fourth Quarter

results 2020.

114

The case is Église Vie et Réveil Inc. c. Sunoco inc., 2003 5495 (QC CS). The facts of the case

play an important role in the decision, including the fact that the plaintiff had recently bought the land

and stated that it intended to sell it.

Église Vie et Réveil Inc. c. Sunoco inc., 2003 5495 (QC CS) paragraphs 24, 25 and 74 to 90.

115

760-17-003265-132

4.2. The Appropriate Approach to the Works to Be Done

PAGE : 42

[213] The parties disagree on the appropriate approach to reducing the amount of

manganese on The Land.

[214] For some parts of The Land, Elkem’s environmental expert is of the opinion that

soil with concentrations of manganese in excess of 1 000 mg/kg (the residential “B”

criteria) should be left in place and that the right approach is one of risk-management and

containment.¹¹⁶

[215] The recommendations of Elkem’s environmental expert are inappropriate. They do

not reflect the principle that legal remedies should aim, in so far as possible, to make

victims of legal wrongs whole and the Hone-Bellemares’ particular relationship with The

Land.

[216] Risk-management and leaving a contaminant on a property may be appropriate in

some cases,¹¹⁷but not in this one. Such an approach would entail leaving a mark – or a

“stigma” as it is often called – on Ms. Hone-Bellemare’s property and infringing the family’s

right to enjoy, use and dispose of their property as they please.

[217] In support of its argument, Elkem cites the plan approved by the Ministry of the

Environment in 2017 for rehabilitation of the site of its old plant, which is based on a risk-

management approach.¹¹⁸The fact that such an approach is appropriate for the site does

not mean that it is appropriate for Ms. Hone-Bellemares’ property. The old Elkem site is

now owned by Investissements René St-Pierre, a company that uses the property for

recycling and storage. The company’s relationship with their property – and its

commercial use – cannot be compared with the Hone-Bellemares’ relationship to and use

of their property.

[218] The Hone-Bellemares’ environmental expert recommends restoration methods to

reduce manganese levels to 1 000 mg/kg over the entirety of The Land. This involves

excavation in some areas, selective tree-cutting and planting, combined with

phytoremediation. Ordering such works is appropriate in this case, even though the works

will not be simple and straightforward.

116

As concerns Zone R, Elkem’s environmental expert recommends excavation of soil in which

manganese exceeds 11 000 mg/kg and an approach based on risk-analysis for the rest of the zone

(exhibit T-2, Expertise complémentaire, page 3, answer to question 2.iii). For the wooded area, he also

recommends removal of soil in excess of 11 000 mg/kg and leaving the rest of the soil in place and

managing it on a risk-analysis basis (exhibit T-2, Expertise complémentaire, page 7, answer to question

5.ii).

117

Sometimes such an approach may be appropriate if there are serious negative effects to the full

rehabilitation/restoration of a property: Guide d’intervention – Protection des sols et réhabilitation des

terrains contaminés, 2021 (see footnote 59 for full cite), pages 129 and 130.

Exhibit D-31, Approbation d’un plan de réhabilitation of February 27, 2017.

118

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PAGE : 43

[219] A plaintiff does not lose their right to a remedy because the remedy may be

inconvenient for the defendant.

[220] Some of the orders in this judgment may require submitting plans for approval to

the Ministry of the Environment. This, too, may be cumbersome for Elkem, but it is not an

obstacle to issuing the orders and granting the relief sought by the Hone-Bellemares.¹¹⁹

If it were an obstacle, defendants whose activities result in more significant environmental

problems would be the least likely to be ordered to clean-up after themselves.

[221] Phytoremediation, as proposed by the Hone-Bellemare’s environmental expert, is

a process by which plants known for their capacity to extract contaminants are planted in

contaminated soil, thereby reducing the level of contamination in the soil.¹²⁰

[222] At trial, the Hone-Bellemares’ environmental expert explained the process as

follows: experiments are done off-site and in-situ to determine the plants that are most

effective in extracting manganese and that will thrive on Ms. Hone-Bellemare’s property;

these plants are then planted on parts of the property with manganese levels that the

plants will be able to extract; careful monitoring is done and adjustments are made, as

needed. The process may take up to ten years to complete.

[223] According to the Hone-Bellemare’s environmental expert, there have been

significant advances in phytoremediation since 2016, when he first recommended it.

Today, he estimates the likelihood of it being a viable option for reducing levels of

manganese on The Land at 95%.

[224] Phytoremediation has the advantage of reaching contaminants in the zone

racinaire (at the “root-level”). As such, it is often more thorough than excavation, which

only targets the contaminated soil that is actually removed. Another advantage of

phytoremediation over excavation is that it is less invasive and harmful to existing flora

and fauna. Phytoremediation is ineffective when manganese contamination is at the “D”

level of 11 000 mg/kg.

[225] As pointed out by Elkem’s environmental expert, phytoremediation is relatively

new. Novelty, in and of itself, is not a bar to it being the object of an injunctive order.

[226] A final comment about phytoremediation is necessary. Should the professional

mandated to proceed with restoration of The Land decide to proceed with

phytoremediation and should the process not work, the Hone-Bellemares’ rights will be

119

The parties’ environmental experts disagree on which works require approval by the Ministry of the

Environment, see: exhibit T-2, Expertise complémentaire, pages 2 and 3 (answer to question 3.v), page

6 (answer to question 4.iv) and page 7 (answer to question 5.iv). Elkem argued that the injunctive orders

sought by the Hone-Bellemares might usurp the role of the Ministry of the Environment. The argument

is unfounded because works that are ordered in this judgment and which require approval by the

Ministry remain subject to the Ministry’s approval.

120

Exhibit P-10.I, Jerald L. Schnoor, “Phytoremediation” in Technology Evaluation Report, TE-98-01,

Pittsburgh.Ground-Water Remediation Technologies Analysis Center, October 1997.

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PAGE : 44

exhausted as concerns restoration of the part of The Land concerned. Their expert

testified that phytoremediation is 95% likely to work. The Hone-Bellemares are evidently

at ease with the process and this margin of risk. In these circumstances, if

phytoremediation does not work, it would be inequitable to Elkem to have it assume costs

of effecting works twice.

4.3. Degree of Detail for Injunctive Orders

[227] Orders issued by the Court must be clear, detailed and precise. This is especially

important for mandatory injunctive orders: if a party is being ordered to do something,

they need to know precisely what they are being ordered to do.¹²¹

[228] The ideal of total accuracy is not always attainable.¹²²This is one such case.

Cleaning up The Land and reducing levels of manganese to 1 000 mg/kg is a complicated

endeavour that involves many variables. For example, at present, the precise nature and

extent of the restoration work that will be done on the old Elkem site is unknown, as is the

issue of whether manganese is still leaching from the property that is now owned by

Investissements René St-Pierre into Zone R of Ms. Hone-Bellemare’s property.

[229] Likewise, the parties’ environmental experts cannot agree on whether approval

from the Ministry of the Environment is needed to proceed with some of the works.¹²³

[230] In these circumstances – when there are several unknowns – it is not possible to

craft perfectly detailed injunctive orders. This is not a bar to issuing injunctive relief. While

the principle that court orders should be clear, detailed and precise is important, it must

sometimes heed to another important principle, namely, that where there is a right, there

is a legal remedy.

121

There is also the issue of contempt of court, that is, the argument that orders need to be clear because

if they are not respected, the party who is subject to the orders is susceptible of being found in contempt.

However, the contempt issue is not a compelling consideration because contempt of court proceedings

in civil matters are, by and large, limited to exceptional circumstances.

122

In some cases, orders that identify the result only of works to be done have been found to be

acceptable: Ville de Mont-Tremblant c. Succession de Miron, 2020 QCCA 701, paragraphs 71 to 74.

In the present case, identifying more than the result of works and setting out some guidelines is

appropriate because of major disagreements between the parties about the appropriate approach to

the works.

123

Exhibit T-2, Expertise complémentaire, pages 2 and 3 (answer to question 3.v), page 6 (answer to

question 4.iv) and page 7 (answer to question 5.iv).

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4.4. The Injunctive Orders

i) Supervision of Works

PAGE : 45

[231] The Hone-Bellemares ask that works be done following the recommendations of

their environmental expert, Samuel Laberge, and under his supervision.¹²⁴

[232] The request that works be done under Mr. Laberge’s supervision is well-founded.

Mr. Laberge is a qualified expert who already has a detailed understanding of The Land

and the issues at the heart of this case. Mandating him to supervise and direct the works

has the added advantage of being cost-effective, given the time he has already devoted

to studying the file.

[233] The future is uncertain. As such, a provision is included in the dispositive of this

judgment providing that the parties may agree to mandate another professional to carry

out the injunctive orders.

[234] As for the request that works be done following Mr. Laberge’s recommendations,

it will be dealt with, in detail, for the various recommendations in the following sections of

the judgment.

ii) Preliminary Work

[235] The parties’ environmental experts agree that more information is needed before

settling on a detailed plan to restore Ms. Hone-Bellemare’s property.

[236] In answer to a question about the appropriate analytical approach to works,

Elkem’s environmental expert writes: des études plus détaillées sur les conditions de

terrain (qualité des sols et de l’eau souterrain, évaluation des milieux boisés, milieux

humides et résidentiels, relevés topographiques, etc) … sont nécessaires.¹²⁵Mr. Laberge

makes similar comments in his report.¹²⁶

[237] The nature of the information and preliminary work needed must be determined by

the professional mandated to supervise the works. It will also depend on whether approval

for the works from the Ministry of the Environment is needed and what the Ministry

requires.¹²⁷

124

Requête introductive d’instance en injonction permanente et en dommages re-modifiée, paragraph 47:

ORDONNER à la défenderesse de procéder à la remise en état de la propriété de la demanderesse

Élisabeth Hone-Bellemare conformément (…) au rapport de Groupe ABS daté du 19 octobre 2016

préparé par Samuel Laberge (…) et sous la supervision de ce dernier.

Exhibit T-2, Expertise complémentaire, page 9 (answer to question 7.iii).

Exhibit P-9, Hone-Bellemares’ Environmental Expertise of May 2017, pages 4 and 5.

125

126

127

Requête introductive d’instance en injonction permanente et en dommages re-modifiée, paragraph 48:

ORDONNER à la défenderesse de procéder à toutes les caractérisations, études ou analyses

supplémentaires requises pour effectuer lesdits travaux (incluant celles identifiées à la pièce T-2),

760-17-003265-132

PAGE : 46

[238] At this stage, there are nonetheless some preliminary works that can be identified.

[239] The dividing line between the old Elkem site (lot 4 714 988)¹²⁸and Ms. Hone-

Bellemares’ property (lot [1]) must be determined once and for all. Knowing the location

of the dividing line is necessary to determine the scope of the works to be done.

[240] Over the years, there has been confusion on the issue because a Frost fence was

installed by Elkem, apparently without Ms. Hone-Bellemare’s permission. Then, later, Mr.

Dominique Bellemare refused to allow a land surveyor to determine the location of the

dividing line.¹²⁹

[241] Given these issues – and the fact that both parties will benefit from determining

the location of the dividing line – the land surveyor’s fees should be assumed equally

between the two parties.

[242] It is also necessary to obtain an updated certificate of location of Ms. Hone-

Bellemare’s property.

[243] In answer to a question about the total surface area of the property, the experts

added the following note: NOTA: M. Duquette et S. Laberge sont d’avis qu’en vue de

futurs travaux de restauration et/ou de réhabilitation, le certificat de localisation devra être

mis à jour et les limites de propriété devront être bornées.¹³⁰

[244] The costs of the certificate of location should also be shared by the parties. While

it is true that the reason for which it is now needed is to clean up The Land following

Elkem’s activities, those who hold title to The Land will benefit from an updated certificate

for years to come.

iii) Removal of Slag and Industrial Residue

[245] The Hone-Bellemares seek orders that Elkem have the following works done:

i)

removal of slag and residues of any nature deposited on Ms.

Élisabeth Hone-Bellemare’s property (le retrait des scories et

résidus de toute nature déposés sur la propriété de la

demanderesse Élisabeth Hone-Bellemare);

ii)

removal of slag and residues of any nature deposited over the years

from the shore of Lake Saint-Louis in front of Ms. Élisabeth Hone-

conformément aux règles de l’art et prescriptions du Ministère de l’Environnements et de la Lutte aux

Changements climatiques.

The lot number appears in exhibit D-31, Approbation d’un Plan de réhabilitation of February 27, 2017

page 2, first paragraph.

Exhibit D-9, Email exchange of October 2010, including Dominique Bellemare’s email in which he

writes: Non, vous n’avez PAS notre accord (capital letters in the original).

Exhibit T-2, Expertise complémentaire, page 8 (answer to question 6.1).

128

129

130

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Bellemare’s property (le retrait de la rive du Lac Saint-Louis en front

de la propriété de la demanderesse Élisabeth Hone-Bellemare des

scories et résidus de toute nature déposées au cours des ans); and,

iii)

adequate cleaning of the bank in front of Ms. Élisabeth Hone-

Bellemare’s property (le nettoyage adéquat de la berge en front de

la propriété de la demanderesse Élisabeth Hone-Bellemare).¹³¹

[246] These conclusions are well-founded, though a slight modification to the description

of the residue to be removed is in order.

[247] It is more probable than not that the operations of Elkem’s plant between 1984 and

1991 substantially contributed to the slag and industrial residue on Ms. Hone-Bellemare’s

property.

[248] However, there are many other possible sources of other types of residue on The

Land and its shores. As explained by several witnesses at trial, there was a large cargo

liner, the Kathryn Spirit, which sunk in Lake Saint-Louis and was left there for over a

decade before being dismantled. Further, the activities of all those who have used the

lake over the years are also likely sources of non-industrial residue. Thus, as concerns

the obligation to remove residue, Elkem’s obligation is limited to the removal of industrial

residue.

iv) Zone R

[249] Zone R, adjacent to the old Elkem site, is the most contaminated part of Ms. Hone-

Bellemare’s property. The environmental experts agree on its location.¹³²

[250] For reasons set out at paragraphs 110 to 133 and 189 to 212 of this judgment,

reducing the levels of manganese to 1 000 mg/kg, the “B” criteria, in Zone R is necessary

to respect the Hone-Bellemares’ rights under the no-fault liability regime for neighbourly

annoyances.

[251] Given the high concentrations of manganese in Zone R, phytoremediation is not a

viable option. Thus, excavation work must be done, and possibly refilling with new soil.

[252] In Zone R, leaching and run-off are important sources of manganese. As

recommended by Mr. Laberge, mitigation and containment measures – which could take

the form of a drainage ditch, a membrane or a small interception wall – are necessary to

ensure that there is no future contamination from the old Elkem site.¹³³Decisions in this

131

Requête introductive d’instance en injonction permanente et en dommages re-modifiée, paragraphs

47(a), (b) and (c).

132

Exhibit T-2, Expertise complémentaire, page 2 (answer to question 3.i) and page 19, Drawing 001.

Exhibit P-9, Hone-Bellemares’ Environnemental Expertise of May 2017, page 4, section 2.8, sub-point

133

3: Ces mesures pourraient prendre la forme d'un fossé drainant, d'une membrane, d'un muret

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PAGE : 48

regard may depend on work done by Investissements René St-Pierre, the current owner

of the old Elkem site.

v) Uncontested Residential Areas

[253] The parties’ environmental experts agree that 18 581m²of The Land is

residential.¹³⁴

[254] For this area, the parties’ environmental experts’ recommendations are very

similar to one another, and it is surprising that they answer non in response to the question

about whether they had reached a consensus about the works to be done in the

residential areas.

[255] Elkem’s expert environnemental recommends: réhabilitation par excavation des

sols contaminés en manganèse en concentrations supérieures au critère B.¹³⁵

[256] The Hone-Bellemares’ environmental expert recommends the excavation des

sols aux critères génériques B applicables à une propriété résidentielle and the

excavation des matières résiduelles et/ou des sols contenant des matières résiduelles

(scories), le cas échéant in confomity with any additional information obtained and the

Ministry of the Environment’s requirements.¹³⁶

[257] As such, injunctive orders to reduce the level of manganese to the “B” criteria for

this part of The Land through excavation, and other methods, if needed, are in order.

vi) Uncontested Wooded Areas

[258] Except for a small contested area which will be dealt with in section (vii), the

parties’ environmental experts agree that most of The Land is wooded – between 65.3%

and 70.2%.¹³⁷

[259] Elkem’s position regarding this part of the property is clear. Its environmental

expert recommends a risk-management based approach which, for reasons already

given, is inadequate.

[260] The Hone-Bellemares’ position is not immediately obvious as concerns how,

exactly, they want the amount of manganese in the wooded areas to be reduced. Their

Requête introductive d’instance en injonction permanente et en dommages re-modifiée

d'interception et/ou toute autre mesure de mitigation. En effet, la configuration actuelle du talus

présente un risque de transport des contaminants vers le site à l’étude.

Exhibit T-2, Expertise complémentaire, page 4 (answer to question 4.i) and Zone considérée comme

134

résidentielle (S. Laberge et M. Duquette) of Drawing 002 in annex to exhibit T-2.

Exhibit T-2, Expertise complémentaire, page 5 (answer to questions 4.iii).

Exhibit T-2, Expertise complémentaire, page 6 (answer to questions 6.i). The percentages represent

116 995m²and 125 762m^2,respectively.

135

136

137

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PAGE : 49

refers to their environmental expert’s report of October 2016 and the Expertise

complémentaire, which, in turn, refers back to October 2016 report.¹³⁸The best summary

of the Hone-Bellemares’ position regarding the work that they want to be done in the

wooded area is as follows:

Sur la base d’une caractérisation complémentaire conforme aux prescriptions du

Ministère de l’Environnement et de la Lutte aux Changements climatiques

(MELCC) :

a) Excavation des sols aux critères génériques B applicables à une propriété

résidentielle ;

b) Traitement des sols en place par phytoremédiation; et/ou

c) Une combinaison des deux (2) méthodes advenant certaines contraintes

limitant l’un ou l’autre des méthodes.¹³⁹

[261] Elkem’s lawyer is correct in his observation that the injunctive relief sought by the

Hone-Bellemares is, in some regards – and especially as concerns the wooded areas –

pas suffisamment claires and truffées d’ambiguité.¹⁴⁰

[262] However, in this case, the lack of precision is not an obstacle to issuing injunctive

relief. As already explained, the Hone-Bellemares have the right not to be forced to

tolerate the by-products of Elkem’s industrial activities and a remedy must be crafted to

give meaning to this right.

[263] Further, it is important to bear in mind the reason for which the Hone-Bellemares

are unable to define exactly what works need to be done: at present, they do not know.

They require more information about The Land to be able to identify the nature and extent

of the works.

[264] The Hone-Bellemares are not being cagey or careless in failing to define the exact

nature and extent of the works that have to be done in the wooded areas. If this were the

case, the observations of Elkem’s lawyer might be an obstacle to the injunctive relief

sought. As always, context matters. This is a case in which the Plaintiffs are seeking

redress for an environmental problem caused by industrial activities which profited the

Defendant. In these circumstances, requiring the Plaintiffs to devote important resources

to obtain detailed information regarding the harm they have been forced to suffer to be

able to petition the Court for a remedy would impose an unfair burden on them.

138

Requête introductive d’instance en injonction permanente et en dommages re-modifiée, paragraph 47,

first conclusion.

139

Exhibit T-2, Expertise complémentaire, page 7 (answer to question 5.ii).

Plan d’argumentation de la partie défenderesse, paragraph 193.

140

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PAGE : 50

[265] The preliminary work set out in section (ii) must be done to determine the most

appropriate way to restore the wooded areas. The Hone-Bellemares should not be

obliged to pay for this work.

[266] In these circumstances, a degree of imprecision in the orders of this judgment is

inevitable.

[267] With the help of the guidelines set out below, there is no reason for which the

injunctive orders for the wooded areas in the dispositive of this judgment cannot be

executed.

[268] The guidelines are as follows:

1. The end goal of works is to reduce the manganese levels to 1 000mg/kg or less.

2. Whenever possible, less invasive methods, such as phytoremediation and

selective excavation, should be used. Processes that are the least disruptive for

the environment should be favoured.¹⁴¹

3. A risk-management approach or any other approach which entails leaving

manganese in excess of 1 000 mg/kg in place and containing it should be avoided.

However, if – and only if – after obtaining more information about The Land, such

an approach is found to be the least disruptive to the environment and, overall

more beneficial, it may be used.

4. If phytoremediation is chosen as the method to be used on part of The Land and

it does not work, the Hone-Bellemares will have exhausted their rights as concerns

that part of The Land and they cannot then claim that Elkem must proceed with

further works there.

5. Limiting the costs should not be the overriding concern in determining the nature

of the works.

vii) Contested Areas Between Zone R and Uncontested Wooded Areas

[269] There is a part of The Land (between Zone R and the residential areas) about

which the parties’ environmental experts disagree. It is where there once was a camp

d’été (a summer cabin). According to Elkem’s environmental expert, it should be classified

141

Comments that reflect such as approach are actually in the March 2017 report of Elkem’s

environnemental expert: si la mise en œuvre d’une mesure d’assainissement d’une site présente plus

de risque sur le plan environnemental (ex. destruction d’habitats écologiques) que de laisser en place

la contamination, il faut y renoncer ou trouver une alternative de gestion différente (exhibit D-15, page

5, lines 30 to 33 underlining added).

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PAGE : 51

as part of the wooded area, while the Hone-Bellemares’ expert is of the opinion that it

should be treated as residential.¹⁴²

[270] Given the conclusion that Elkem has an obligation to reduce the level of

manganese to 1 000 mg/kg on all of The Land, the issue of how the area should be

characterized is moot.

[271] As concerns the type of work best suited to rehabilitate the area, the decision will

be left to the discretion of the professional, be it Mr. Laberge or someone else, mandated

to supervise the works. The decision should be made in conformity with the guidelines

set out at paragraph 268 of this judgment.

viii) Post-decontamination Work

[272] The Hone-Bellemares’ Requête introductive d’instance en injonction permanente

et en dommages re-modifiée includes the following conclusion : le cas échéant, la

restauration complète de la propriété de la demanderesse Élisabeth Hone-Bellemare

suite aux travaux susdits avec des arbres matures et une flore restaurée.¹⁴³

[273] The conclusion, as drafted, is too broad.

[274] Mr. Laberge did not provide information about post-decontamination restoration

work. As such, granting the conclusion would give him carte blanche as concerns flora to

be planted on The Land. Mature trees can be expensive and there is no evidence that

they are needed to reduce the level of manganese to 1 000 mg/kg on The Land.

[275] Over the years, Elkem’s operations have had deleterious effects on Ms. Hone-

Bellemare’s property. However, since the 1880s, the family has also done works which

likely had an impact on the flora. Ordering Elkem to mandate a professional to effect

works to ensure a flore restaurée carries with it a real likelihood that the Hone-Bellemares

will be unjustly enriched and is, thus, inappropriate.

[276] Some planting will likely be necessary in some areas – particularly in Zone R

where there will be major excavation – to ensure that The Land is not left in a barren

state, at risk of re-contamination and other environmental problems. If excavation work

disturbs the existing flora, work must be done to remedy the disturbances, but remediation

work is limited to problems caused by the excavation.

[277] Scars should not be left on The Land as a result of decontamination work ordered

in this judgment.

142

Exhibit T-2, Expertise complémentaire, page 8 (answer to question 6.i), which also appears on Drawing

2 at page 20 of exhibit T-2.

Requête introductive d’instance en injonction permanente et en dommages re-modifiée, paragraph

143

47(f).

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ix) Timeframe

[278] The injunctive orders of this judgment consist of several steps and long-term work,

with some orders being dependent on the results of others.

[279] Here is the timeframe for the orders:

Step

Timeframe

1. Determining who will supervise works and

To be completed 2 months from

identifying preliminary information-gathering the date of this judgment

work that has to be done – Such a step was

not requested by either party but I find it to be

necessary to ensure that works proceed

smoothly. The parties must agree on the person

who will supervise the works and the scope of

the preliminary information that is needed.

2. Information gathering – Proceeding with

surveys of Ms. Hone-Bellemare’s property,

including a certificate of location, as well as

other characterizations, studies and additional

analysis of the property, as needed.

To begin 2 months after completion

of step 1 and to be completed

within 22 months of completion of

step 1.

3. Submitting any requests for authorization

and approval to the Quebec Ministry of the

Environment for works to be done

To be completed within 22 months

of completion of step 1.

4. Beginning of actual work – Work to reduce the To begin 3 months after completion

level of manganese to 1 000 mg/kg through

excavation, refill, phytoremediation, and other

methods and work in Zone R.

of step 2

5. Beginning of actual work which requires

approval by the Ministry of the Environment

– Work to reduce the level of manganese to

1 000 mg/kg through excavation, refill,

phytoremediation and other methods and work

in Zone R.

To begin 3 months after approval

obtained from the Ministry

[280] This timeframe reflects the timeframe proposed by the Hone-Bellemares,¹⁴⁴with

the exception of Step 1, which was not requested. Such a preliminary planning step is

necessary to ensure that works proceed smoothly.

144

Requête introductive d’instance en injonction permanente et en dommages re-modifiée, paragraph 49.

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PAGE : 53

[281] The timeframe is generous and accounts for unforeseen constraints such as the

non-availability of professionals and adverse weather.

4.5. Going Forward

[282] Though the parties are no longer neighbours, their relationship is not severed.

Elkem closed its plant and sold its property in Beauharnois decades ago, but it still has

obligations towards the Hone-Bellemares.

[283] In the past, relations between the parties have been fraught. In litigation, Elkem

and the Hone-Bellemares assumed adversarial stances, inherent to the adversarial

nature of the legal system.

[284] Going forward, cooperation, good faith and a willingness to compromise – on the

part of both parties – is needed. Rights that result from this judgment must be exercised

in good faith.¹⁴⁵

[285] The Hone-Bellemares ask for a reserve of rights for both parties and a conclusion

confirming that they may submit future disagreements which may arise between them or

their experts to me or, should I become incapable, to another judge of the Court.¹⁴⁶Such

an order is not necessary.

[286] Judgments of this Court are meant to put an end to legal disputes.¹⁴⁷

[287] A decision has been made that Elkem is liable for the high levels of manganese in

the soil of Ms. Hone-Bellemare’s property and the problems Zone R. Accordingly, a legal

remedy has been provided to right this legal wrong. As such, the legal dispute is resolved

and the Hone-Bellemares now have the tools they need to give meaning to their legal

rights.

[288] In the most recent version of the Code of Civil Procedure, a new article appears

by which the Court may issue “any order to facilitate execution” after judgment is

rendered. According to the Minister of Justice, the provision is open to liberal

interpretation.¹⁴⁸

145

Civil Code of Québec, article 6: “Every person is bound to exercise his civil rights in accordance with

the requirements of good faith.”

Requête introductive d’instance en injonction permanente et en dommages re-modifiée, paragraph 50 :

146

RÉSERVER les droits et recours des parties de demander toute ordonnance additionnelle pour donner

plein effet à la restauration à être ordonnée aux termes des présentes, y compris, en cas de désaccord

entre les parties.

147

Code of Civil Procedure, article 321: “The judgment deciding a dispute of ruling on a case terminates

the application (…) The judge is no longer seized of the matter and the judgment is final if it cannot or

can no longer be appealed.”

Code of Civil Procedure, article 657; Quebec Minister of Justice, Commentaires de la ministre de la

148

Justice. Code de procédure civile, chapitre C-25.01, Montréal, Wilson & Lafleur, 2015, article 657; see,

also: Droit de la famille — 192442, 2019 QCCA 2096, paragraphs 8 and following.

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PAGE : 54

[289] Nothing in this judgment should be interpreted as barring either party from using

this new provision. Should the need arise, the Hone-Bellemares and Elkem may submit

future disputes about execution of the orders in this judgment to the Court. However,

should they do so, the judge who hears the matter may conclude that one of the parties

– or both – have failed to act reasonably.

5. Do members of the Hone-Bellemare family have a right to damages?

[290] The Hone-Bellemares have endured a great deal of stress, troubles and

inconveniences as a result of Elkem’s industrial activities and this litigation. They have

spent time worrying about the after-effects of the plant’s operations, trying to obtain

information about the state of The Land and exploring possible solutions to the issue of

the high levels of manganese on Ms. Hone-Bellemare’s property.

[291] They do not have the right to be compensated for everything that they have been

through because Elkem did not commit a civil fault. Under the no-fault liability regime for

neighbourly annoyances – as opposed to the fault-based regime – the damages to which

plaintiffs have a right are limited to damages that result from having to tolerate the

abnormal annoyance itself.¹⁴⁹

[292] The Hone-Bellemares claim a total of $1.04M in damages.¹⁵⁰This amount is too

high because Elkem did not commit a fault.

[293] Assessing the appropriate amount for damages in this case requires identifying

what Ms. Hone-Bellemare and each of her six children endured because they had to

tolerate levels of manganese on The Land in excess of the “B” criteria of 1 000 mg/kg.

[294] Given that the Hone-Bellemares became aware of the concentrations sometime in

September 2010, October 1^stof the same year is the starting point for calculating the

damages due. The end date will be when the works to reduce the level of manganese on

The Land and clean up Zone R are completed.

[295] Under the no-fault liability regime for neighbourly annoyances, successful plaintiffs

have the right to be indemnified for the craintes et angoisses they suffer upon learning of

exposure to a pollutant, even if there is no proof that exposure actually caused health

issues.¹⁵¹

149

Spieser c. Procureur général du Canada, 2020 QCCA 42, paragraphs 448 to 451; Yves Lauzon and

Bruce W. Johnston, Traité pratique de l’action collective, Montréal, Éditions Yvon Blais, 2021,

paragraph 12.5.1; Michel Gagné, “Les recours pour troubles de voisinage : les véritables enjeux”, in

S.F.P.B.Q., vol. Développement récents en droit de l’environnement (2004), Cowansville, Éditions

Yvon Blais, EYB2004DEV477, page 17.

150

In the Requête introductive d’instance en injonction permanente et en dommages re-modifiée,

$900 000 is sought for E. Hone-Bellemare, and $20 000 for each of the other plaintiffs. No amount is

awarded for the late J. Bellemare because no evidence was adduced about damages he might have

suffered.

151

Spieser c. Procureur général du Québec, 2020 QCCA 42, paragraphs 595 to 597.

760-17-003265-132

PAGE : 55

[296] In this case, it is clear that the Hone-Bellemares experienced worry, stress and

inconveniences as a direct result of the high levels of manganese on The Land. They also

limited the use they made of The Land, notably by putting construction projects on hold

and avoiding activities that might disturb the soil and bring manganese in the soil to the

surface.

[297] Quantifying damages is a difficult task which involves trying to ascertain the degree

to which another human being suffered and was inconvenienced following a violation of

their legal rights.

[298] It is often helpful to look at amounts awarded in similar circumstances. The leading

judgments in which plaintiffs were awarded damages because of an environmental

nuisance under the no-fault liability regime for neighbourly annoyances, such as Spieser

and St. Lawrence Cement differ from this case in two important ways, one of which

favours awarding the Hone-Bellemares lower damages and the other favours higher

damages:

Leading Cases

This Case

Plaintiffs reside in the homes affected by The Hone-Bellemares use the property

the problem on a full-time basis.

affected by the annoyance as a vacation home

(with the exception of Mr. Nicholas Bellemare).

This consideration favours awarding lower damages to the Hone-Bellemares.

The Plaintiffs did not have a long-term, The Hone-Bellemares have an interest and an

multi-generational interest in their attachment to the property which transcends

homes, at least not one that was a their occupation of it, as it has been in the

consideration in establishing damages. family since the 1880s and they are attached

to the nature that resides in The Land.

This consideration favours awarding higher damages to the Hone-Bellemares.

Spieser and St. Lawrence Cement were This case is not a class action and an

both class actions.

individualized,

specific assessment of

damages is possible.

The difference is neutral overall, but it makes the task of setting damages easier.

[299] The dust, noise and odours at issue in St. Lawrence Cement were highly disruptive

of the plaintiffs’ daily lives. The Hone-Bellemares did not experience comparable

760-17-003265-132

PAGE : 56

disruption given the limited amount of time they spend on The Land and the nature of the

abnormal annoyance they were forced to endure, that is, a quiet threat in the soil.

[300] The trichloroethylene (“TCE”) of which plaintiffs complained in Spieser is a known

produit cancérigène.¹⁵²In the present case, there is no evidence in the record establishing

the actual adverse effects of exposure to manganese in excess of 1 000 mg/kg. The

Plaintiffs have simply proven that the presence of manganese in soil at levels in excess

of 1 000 mg/kg is contrary to the principle of protecting human health followed by the

Quebec Ministry of the Environment.¹⁵³

[301] In St. Lawrence Cement, residents who endured dust, odour and noise from the

operations of a cement plant were awarded between $30 and $2 500 a year, depending

of where they lived. ¹⁵⁴The first instance judgment was rendered in 2003.

[302] In Spieser, a 2020 Court of Appeal judgment, exposure to drinking water with high

levels of TCE was the abnormal annoyance at issue. Residents in the most affected

neighbourhoods who did not have children in their care were awarded $750 a month and

an additional lump sum of $3 000 was awarded to households with children.¹⁵⁵

[303] These are the considerations which lead to the determination of the quantum for

moral damages in the following sections.

5.1. Mr. Nicholas Bellemare

[304] Mr. Nicholas Bellemare is awarded 400$ per month, just over half what the most

affected residents (without children) in Spieser were awarded.

[305] He is the only Plaintiff whose permanent home is on The Land.

[306] Given the amount of time that he and his children have spent on The Land – that

is, virtually all of their time – his stress levels and anxiety due to the possible risks of

manganese exposure are greater than those of the other members of the family.

[307] He is the most affected by the high levels of manganese. He must deal with it on

a daily basis. Since September 2010, he has limited his activities to ones that will not

agitate the soil and that may thereby aggravate the problem. He put renovation plans and

other projects on hold.

152

Spieser c. Procureur général du Québec, 2020 QCCA 42, paragraph 4.

Guide d’intervention – Protection des sols et réhabilitation des terrains contaminés, 2021. See

153

footnotes 59 and 74 for full cite.

St. Lawrence Cement Inc. v. Barette, 2003 36856 (QC CS), paragraph 422. On the damages

154

issue, the trial court’s judgment was upheld by the Supreme Court of Canada.

Spieser c. Procureur général du Québec, 2020 QCCA 42, paragraphs 636 and 637.

155

760-17-003265-132

5.2. Ms. Élisabeth Hone-Bellemare

PAGE : 57

[308] Ms. Élisabeth Hone-Bellemare is awarded $250 per month, a third of what the

most affected residents (without children) in Spieser were awarded.

[309] This amount is set given the fact that her attachment to The Land is the strongest.

She has been spending time on it for almost a century. It is also her legacy to her children

and grandchildren.

[310] Further, as the person who holds legal title to The Land, it is Ms. Hone-Bellemare’s

right to dispose of the property that is directly affected by the presence of a contaminant

in excess of the “B” criteria used by the Ministry of the Environment on the property.

5.3. Messrs. François and Dominique Bellemare

[311] Messrs. François and Dominique Bellemare are awarded $190 per month each,

just over a fourth of what the most affected residents (without children) in Spieser were

awarded.

[312] Both testified at trial and explained the range of emotions they experienced upon

learning how much manganese is on The Land and the stress that it caused them.

[313] However, there have likely been some weeks – and possibly months – when the

issue was absent from their minds given that they do not live on The Land full-time. As

such, the amount of $190 per month is an appropriate average for their monthly damages.

5.4. Ms. Anne-Marie, Messrs Alain and Sylvain Bellemare

[314] As for the other three siblings, the only evidence of their alleged damages are their

Sworn Statements. They could have testified virtually, via Teams, but did not.

[315] Nonetheless, their Sworn Statements on the issue of damages are uncontested

and it is probable that they were affected by the knowledge that there are high levels of

manganese on The Land where they have spent time and still visit.

[316] Given these factors and the considerations set out in paragraphs 290 to 301 of this

judgment, they are awarded $75 per month, a tenth of what the most affected residents

(without children) in Spieser were awarded.

V – COSTS AND INTEREST

[317] In Quebec, legal costs, including expert fees are paid by the losing party to the

successful party.¹⁵⁶There is no reason to stray from the rule. Given that the Hone-

Bellemares are, for the most part, successful in their lawsuit, Elkem must pay their costs.

156

Code of Civil Procedure, article 339, paragraph 2 and article 340.

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PAGE : 58

[318] Mr. Laberge, the Hone-Bellemares’ environmental expert’s total invoice is

$36 424.36.¹⁵⁷

[319] Mr. Laberge’s testimony, reports and answers provided following the questions I

asked him to answer after meeting with Elkem’s expert, Mr. Duquette, were useful and

necessary to understand technical issues. More specifically, information and opinions he

provided about the airborne transportation of manganese, leaching and the patterns of

dispersion on Ms. Hone-Bellemare’s property were needed to decide the issues. In

addition, his frank and thoughtful explanations regarding remedial options for The Land

were helpful.

[320] His hourly rates, varying from $100 in 2014 to $150 in 2021, are reasonable. The

time Mr. Laberge spent on the file is detailed in the invoices he submitted, with the

exception of one invoice for a flat fee of $9 750 in 2016 for producing a counter-expertise.

[321] Submitting an invoice for a flat fee – without any information whatsoever about the

amount of time spent on a task – makes it difficult to assess whether the amount ($9 750)

charged it reasonable. In this case, I come to the conclusion that the amount is reasonable

through comparison with Elkem’s environmental expert’s invoice. Mr. Duquette’s total

fees are $85 746.42¹⁵⁸, more than double Mr. Laberge’s total fees of $36 424.36.

[322] For these reasons, Mr. Laberge’s total expert fees are justified and Elkem is

ordered to pay them.

[323] The real estate experts’ evidence, through no fault of theirs, was less useful given

the finding that the value of Ms. Hone-Bellemares’ property is not a deciding factor on the

issue of injunctive relief.

[324] The Hone-Bellemare’s real estate expert’s fees total $12 958.81¹⁵⁹, while Elkem’s

real estate expert’s total fees are $51 480.63¹⁶⁰.

[325] Elkem must assume the fees of the Hone-Bellemares’ real estate expert because

the only reason for which the family was obliged to engage an expert was to respond to

Elkem’s real estate expert’s report.¹⁶¹

[326] As for interest on damages, it is due from August 9, 2013, the date on which the

originating proceeding was served on Elkem in Chicoutimi.¹⁶²

157

Exhibit P-19, Laberge invoices, en liasse. The total of $36 424.36 is the sum of $4 972.67 (2014),

$5 939.89 (2017), $11 210.06 (2016) and $14 301.74 (2021).

Exhibit D-38, SNC Lavalin’s invoices, en liasse.

Exhibit P-20, Prud’homme Mercier & associés, invoices, en liasse. The total of $12 695.81 is the sum

158

159

of $10 115.81 (October 2016) and $2 580 (March 2021).

Exhibit D-39, Provost Sanfaçon invoices and summary, en liasse.

Elkem’s real estate expert report was produced in July 2016 (exhibit D-12), the Hone-Bellemares’ report

160

161

in October 2016 (exhibit P-7).

Bailiff report in the court record and Civil Code of Québec, article 1618.

162

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VI - CONCLUSIONS

FOR THESE REASONS, THE COURT:

[327] GRANTS, in part, Plaintiffs’ Requête introductive d’instance en injonction

permanente et en dommages re-modifiée;

[328] ORDERS the Defendant to proceed with work necessary to rehabilitate lot number

[1] of the Beauharnois cadastre so that the concentration of manganese on the entirety

of the lot is 1 000 mg/kg, the “B” criteria established by the Land Protection and

Rehabilitation Regulation, in conformity with the principles of restoration and

rehabilitation, as opposed to risk-management and containment;

1. Preliminary Work and Supervision

[329] ORDERS the parties to identify the professional who will determine and supervise

the works ordered in this judgment;

[330] ORDERS the Defendant, in consultation with the professional referred to above at

paragraph 329, to determine the sampling, characterizations, testing, surveying and other

works needed to obtain information regarding the current state of lot [1]¹⁶³needed to

proceed with works ordered in this judgment;

[331] ORDERS the parties to jointly mandate a certified land surveyor to produce a

certificate of location, including the determination of the dividing line between lot

4 714 988 and lot [1] and share the costs thereof equally between them;

[332] ORDERS the Defendant to proceed with all sampling, characterizations, testing,

surveying and other works needed to obtain information regarding lot [1] needed to

proceed with works set out in this judgment;

[333] ORDERS the Defendant to submit requests for authorizations required for works

ordered in this judgment to the Quebec Ministère de l’Environnement et de la Lutte contre

les changements climatiques;

2. Removal of Slag and Industrial Residue:

[334] ORDERS the Defendant to have works done to remove slag and industrial residue

on lot [1] of the Beauharnois cadastre;

[335] ORDERS the Defendant to have works done to remove slag and industrial residue

from the shore of Lake Saint-Louis in front of lot [1] and to adequately clean the shore in

front of lot [1] ;

163

The lot numbers are for the Beauharnois cadastre.

760-17-003265-132

PAGE : 60

3. Zone R:

[336] ORDERS the Defendant to have works done, in Zone R of lot [1] (as defined in

Drawing 001 of exhibit T-2, Expertise complémentaire), to excavate soil needed to reduce

the concentration of manganese to 1 000 mg/kg, the “B” criteria established by the Land

Protection and Rehabilitation Regulation, and restore it with new soil and vegetation, as

needed;

[337] ORDERS the Defendant to have works done, in Zone R of lot [1] (as defined in

Drawing 001 of exhibit T-2, Expertise complémentaire) to put in place appropriate

containment measures to avoid future contamination of lot [1] through leaching and run-

off from lot 4 714 988;

4. Uncontested Residential Areas:

[338] ORDERS the Defendant to have works done, in the Zone considérée comme

résidentielle of lot [1] (as defined

in Drawing 002 of exhibit T-2, Expertise

complémentaire), to reduce the concentration of manganese to 1 000 mg/kg, the “B”

criteria established by the Land Protection and Rehabilitation Regulation, with excavation,

refilling, and other appropriate means in conformity with the principle of full restoration of

the soil, as opposed to risk-management and containment;

5. Uncontested Wooded Areas:

[339] ORDERS the Defendant to have works done in the Zone boisée of lot [1] (as

defined in Drawing 002 of exhibit T-2, Expertise complémentaire), to reduce the

concentration of manganese to 1 000 mg/kg, the “B” criteria established by the Land

Protection and Rehabilitation Regulation, through the most appropriate methods – be it

phytoremediation, selective excavation or a combination of methods – in conformity with

the guidelines set out at paragraph 268 of this judgment;

6. Contested Area Between Zone R and the Uncontested Residential Area:

[340] ORDERS the Defendant to have works done in the Zone boisée of lot [1] (as

defined in Drawing 002 of exhibit T-2, Expertise complémentaire) to reduce the

concentration of manganese to 1 000 mg/kg, the “B” criteria established by the Land

Protection and Rehabilitation Regulation, through the most appropriate methods – be it

phytoremediation, selective excavation or a combination of methods – in conformity with

the guidelines set out at paragraph 268 of this judgment;

7. Post-decontamination Work:

[341] ORDERS the Defendant to have works done on lot [1] to restore flora to reduce

the risk of future contamination or other environmental issues caused by works ordered

in this judgment;

760-17-003265-132

PAGE : 61

8. Timeframe:

[342] ORDERS the Defendant to have works ordered in paragraphs 329 to 341 of this

judgment within the following timeframe:

Step

Timeframe

1. Determining who will supervise works and

identifying preliminary information-gathering

work that has to be done

To be completed 2 months from

the date of this judgment

2. Information gathering

To begin 2 months after completion

of step 1 and to be completed

within 22 months of completion of

step 1.

3. Submitting any requests for authorization and

approval with the Quebec Ministry of the

Environment and the Fight against Climate

Change for works to be done

To be completed within 22 months

of completion of step 1.

4. Beginning of works

To begin 3 months after completion

of step 2

5. Beginning of actual work which requires

approval by the Ministry of the Environment

To begin 3 months after approval

obtained from the Ministry

THE COURT FURTHER:

[343] CONDEMNS the Defendant to pay the Plaintiff Nicholas Bellemare damages in

the amount of $400 per month as of October 1, 2010 until works ordered by this judgment

are completed, with legal interest calculated from August 9, 2013;

[344] CONDEMNS the Defendant to pay the Plaintiff Élisabeth Hone-Bellemare

damages in the amount of $250 per month as of October 1, 2010 until works ordered by

this judgment are completed, with legal interest calculated from August 9, 2013;

[345] CONDEMNS the Defendant to pay the Plaintiff François Bellemare damages in

the amount of $190 per month as of October 1, 2010 until works ordered by this judgment

are completed, with legal interest calculated from August 9, 2013;

[346] CONDEMNS the Defendant to pay the Plaintiff Dominique Bellemare damages in

the amount of $190 per month as of October 1, 2010 until works ordered by this judgment

are completed, with legal interest calculated from August 9, 2013;

760-17-003265-132

PAGE : 62

[347] CONDEMNS the Defendant to pay the Plaintiff Alain Bellemare damages in the

amount of $75 per month as of October 1, 2010 until works ordered by this judgment are

completed, with legal interest calculated from August 9, 2013;

[348] CONDEMNS the Defendant to pay the Plaintiff Anne-Marie Bellemare damages in

the amount of $75 per month as of October 1, 2010 until works ordered by this judgment

are completed, with legal interest calculated from August 9, 2013;

[349] CONDEMNS the Defendant to pay the Plaintiff Sylvain Bellemare damages in the

amount of $75 per month as of October 1, 2010 until works ordered by this judgment are

completed, with legal interest calculated from August 9, 2013;

[350] The whole, with legal costs, and expert fees of $36 424.36 for the Plaintiffs’

environmental expert, and $12 695.81 for the Plaintiffs’ real estate expert, all of which are

against the Defendant.

__________________________________

GEETA NARANG, J.S.C.

M^treBruno Verdon

M^treDominique Vallières

Lavery, De Billy s.e.n.c.r.l.

Attorneys for the Plaintiffs

M^treValéry Gauthier

M^treFrançois Bouchard

Cain Lamarre, s.e.n.c.r.l.

Attorneys for the Defendant

Hearing date:

March 8, 9, 10, 11, 12, 2021 and June 3 and 4, 2021

760-17-003265-132

PAGE : 63

ANNEXE

In Exhibit T-2, Expertise complémentaire, the parties’ environmental experts agree that the table

below represents a reliable estimate of the concentrations of manganese on the 40 parcels into

Ms. Hone-Bellemare’s property was divided for the purpose of soil analysis.¹⁶⁴

Parcel

Depth (cm) and Concentration of Manganese (mg/kg)

0-5

5-10

9 100

10-15

2 800

1 600

2 900

1 900

1 600

1 400

2 000

1 100

1 300

1 500

850

15-20

20-30

1 100

1

15 000

7 300

6 800

3 700

4 700

3 400

2 400

3 800

2 900

5 000

1 200

1 100

5 000

4 100

5 000

5 700

6 400

22 000

32 000

8 200

13 000

9 800

4 400

7 500

4 500

3 800

3 200

3 600

5 300

4 900

4 300

5 400

9 700

7 400

5 000

1 200

2 300

2 800

2 000

1 100

1 400

1 200

740

2

6 000

6 200

1 900

3 700

2 800

3 300

2 100

2 000

2 400

1 900

750

720

650

3

4

610

5

520

6

490

460

7

1 700

750

2 400

700

8

9

700

620

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

740

370

1 200

730

1200

600

3 500

3 200

2 200

4 800

5 600

20 000

36 000

8 100

6 800

9 500

3 900

5 500

4 300

2 600

3 800

2 300

3 100

3 400

3 700

2 000

15 000

6 000

4 900

2 400

1 300

2 200

2 000

1 600

1 700

1 200

2 900

5 000

10 000

51 000

3 100

5 600

7 400

2 500

2 300

2 400

1 600

2 700

860

510

480

1 400

1 000

650

1 200

810

570

2 400

2 800

3 700

29 000

1 400

2 500

3 100

1 300

2 500

2 600

1 100

1 400

820

940

670

480

39 000

840

1 400

770

710

740

2 200

830

860

600

2 500

2 800

2 400

1 300

9 300

4 500

3 900

1 200

740

1 700

3 700

1 300

6 700

2 200

2 000

1 100

1 200

1 100

570

2 200

1 900

810

1 100

2 900

880

1 400

700

1 600

570

920

1100

580

164

Exhibit T-2, page 2 (Answer to question 2 and Tableau A – Volumes et superficies calculés selon la

qualité environnementale des sols interprétés).

Cette traduction a été approuvée par la juge, cependant la version officielle

est la version anglaise.

CANADA

PROVINCE DE QUÉBEC

DISTRICT DE BEAUHARNOIS

N^o:

760-17-003265-132

DATE : 2 septembre 2022

_____________________________________________________________________

SOUS LA PRÉSIDENCE DE L’HONORABLE GEETA NARANG, J.C.S.

_____________________________________________________________________

ÉLISABETH HONE-BELLEMARE

et

LA SUCCESSION DE FEU JACQUES BELLEMARE^*représenté par Élisabeth Hone-

Bellemare à titre de liquidateur liquidatrice de la succession

et

FRANÇOIS BELLEMARE

et

DOMINIQUE BELLEMARE

et

NICOLAS BELLEMARE

et

ALAIN BELLEMARE

et

ANNE-MARIE BELLEMARE

et

SYLVAIN BELLEMARE

Demandeurs

c.

ELKEM MÉTAL CANADA INC.

Défenderesse

_____________________________________________________________________

J U G E M E N T

_____________________________________________________________________

*

M. Jacques Bellemare est décédé. Aucune modification n’a été apportée pour refléter ce changement

d’état civil, mais la question n’a soulevé aucune contestation. Sa désignation a été modifiée en

conséquence.

760-17-003265-132

PAGE : 2

TABLE DES MATIÈRES