Looking at court decisions and statutes, we will first determine whether there is a difference between a nuisance, a contaminant and a pollutant. Then we will examine if it makes a difference whether the substance is natural or chemical, is not “waste”, and is not qualified as toxic, deleterious, hazardous, noxious or dangerous. We will also consider briefly whether a substance, for example asbestos in tiles, is a contaminant when it is in a building instead of in soil or water. Finally we will consider whether a substance declared “toxic” pursuant to CEPA, 1999, as is the case for per- and polyfluroroalkyl substances (PFAS), automatically becomes a “contaminant”.

Jean Rhéaume, Counsel, Department of Justice
Jean Rhéaume (LL.B. 1979, LL.M. 1987, LL.D. 2000) has been a member of the Québec Bar since March 1981. As a private (1981-1990) and public (1990-) sector lawyer, he has provided a wide variety of services in many areas of law, including environmental, administrative and constitutional law. Author of Droits et libertés de la personne et de la famille and of numerous articles, Jean lectures regularly on a wide variety of legal issues in both official languages.

Focusing on some tricky issues directly related to real property, we will first consider whether the presence in/on the land of a substance not yet declared a contaminant/pollutant is a “latent defect” that the vendor has a duty to disclose. Then we will look at the time until which a claim can be made against the person who left such a substance in/on the soil/groundwater. We will also examine whether the former owner or tenant of a property can be held liable retroactively for having left such a substance in the soil/groundwater. Finally, a substance not declared a deleterious substance when the ownership or use of a property ended may eventually enter fish habitat: we will consider whether a person can be held criminally liable for having left that substance in the soil/groundwater and whether the current owner can be held criminally liable for the substance left by a previous owner/user.

Jean Rhéaume, Counsel, Department of Justice
Jean Rhéaume (LL.B. 1979, LL.M. 1987, LL.D. 2000) has been a member of the Québec Bar since March 1981. As a private (1981-1990) and public (1990-) sector lawyer, he has provided a wide variety of services in many areas of law, including environmental, administrative and constitutional law. Author of Droits et libertés de la personne et de la famille and of numerous articles, Jean lectures regularly on a wide variety of legal issues in both official languages.