Road Salt Contamination – What is Compensable?

July 2015

Despite increasing awareness of negative environmental impacts resulting from road salt contamination, and the adoption by most municipalities of salt management plans, farmers with lands adjacent to municipal and provincial roads may continue to experience production losses resulting from salt contamination migrating through their property. Are such landowners entitled to compensation for their losses?

In a recent case considered by the Ontario Superior Court, a farmer claimed damages in nuisance against a municipality resulting from the municipality’s salting of an adjacent municipal road. The plaintiffs’ claim included both crop losses from 1998 to the present and diminished land value resulting from the salt contamination

In commenting on the trial evidence, the trial judge commented;

“[The plaintiff] impressed as an honest and knowledgeable farmer who is not particularly enthusiastic about being enmeshed in litigation with the county. He left the impression that he reluctantly brought this law suit as a result of his frustration with the continued denial by the county and its insurer of any involvement or responsibility for the salt contamination of his property. He has not publicized his land’s salt issues. His estimates as to his loss per acre of both wheat and soybeans in the affected areas were given in a straight forward way. The pictures he took and the videos [the plaintiff] made all were helpful in showing the extent of the damage to his crops that he attributed to the salt. I accept that he was honestly attempting to be as accurate as possible.”

Despite the county’s position that it had a statutory duty to maintain roads through application of road salt and dispute that the salting had caused the claimed crop loss and diminution of property value, the court concluded:

“I have been persuaded by the plaintiffs on the balance of probabilities that the dispersion of road salt by the defendant along a portion of their property that bordered with [the municipal road] was the cause of damage from about 1999 to the present, to their land and to their soya and wheat crops …

“Here I conclude that the damage caused by the salt to the [plaintiffs’] farm was a significant harm which amounted to unreasonable interference with the plaintiffs’ property for which they are entitled to be compensated.

“I have concluded that approximately 15% of the plaintiffs’ farm was significantly damaged by the road salt. I accept as persuasive the evidence given by the plaintiff and his witnesses as to the calculation of the damages to the crop.”

The trial judge similarly rejected the county’s’ position that, if road salt had caused the plaintiffs’ losses, the plaintiff should have reduced the damage through irrigation, snow fences and application of gypsum. The court stated:

“The digging of ditches has historically been the municipality’s responsibility. It is expensive and requires engineering expertise and equipment that the plaintiffs cannot be expected to have…

“Similarly, the erection of snow fencing would only be effective if it was coordinated with the county road maintenance department in terms of the distribution patterns of the county use of the road salt. It is clear from [the county road manager’s] evidence the use and distribution of the salt was very much a decision of the individual operators at the time and varied from application to application.

“To accept the county’s submission regarding the plaintiffs’ duty to consider crop rotation or applying gypsum to the soil would, in my view, impose an unreasonable burden upon the plaintiffs. The county was applying a contaminant on a basis and a pattern known only to them. They continued to use the salt based de-icing and when confronted by the plaintiffs’ complaints, denied responsibility for any damage to the plaintiffs’ crops and property. Subsequently, any efforts of the plaintiffs to reduce the harm to their property would, in my view, have been futile and ineffective as long as the county continued its pattern of use and distribution of the road salt.”

The trial judge also awarded the plaintiff compensation for loss of property value. The court commented:

“I find it is reasonable to conclude that a potential purchaser would see the farm as a whole as less desirable even if their intention was to apply for a severance of the arable farmland from the residence and its buildings or to rent out the farm to another farmer. Either scenario is likely to require some additional expenditure of money or labour in comparison to a similar property where no salt damage has been identified. It is common sense that those cost calculations would reduce the property’s value to prospective purchasers.”

Farmers concerned about production losses related to road salt contamination may be entitled to compensation. Compensable losses may include both past and current crop loss as well as the resulting diminishment in farm value.