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.

760-17-003265-132

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.

760-17-003265-132

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.