Q: We live near a grid road in Saskatchewan. The road is well travelled and there is a lot of dust coming from it. Is there any requirement that a municipality provide dust control?
A: I recommend you deal with this issue by lobbying the RM council.
From a legal perspective, whether the municipality has an obligation is an extremely complex question involving distinguishing between discretionary policy making and legal responsibility. Generally, if a matter can be characterized as falling within discretionary policy making, then there is no legal liability.
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In some provinces this principle is even found in legislation. Alberta’s Municipal Government Act provides that if a municipality has the discretion to do something, it is not liable if it decides in good faith not to exercise its discretion.
Determining between pure policy and legal obligation often requires interpreting statutes dealing with municipal powers. Saskatchewan’s Rural Municipality Act provides that council “shall keep in a reasonable state of repair” all municipal roads.
The act further provides that failure by the municipality to maintain roads renders the municipality liable for damages.
The law is similar in most provinces and there have been hundreds of cases in Canada dealing with whether a municipal or provincial highway department has adequately maintained a road.
Almost all of these cases result from vehicle accidents and whether the condition of the road resulted in the accident.
Saskatchewan’s act also provides that “a municipality is civilly liable for damage if any land is injuriously affected by the exercise of any powers conferred on it.”
Under the general principles of law, large amounts of dust from the neighbour’s land that interfere with your use of land would be considered a nuisance and would entitle you to damages and possibly a court order restraining the neighbour from activities that cause excessive dust. If the dust is from a farming operation it would first have to be determined if normal farming practices were being used.
Can a landowner make a nuisance claim against a municipality for dust emanating from a road?
My first reaction is that road maintenance, including surface upkeep, is a matter of discretionary policy and there is no liability on the part of a municipality unless there is a road hazard.
However, a colleague familiar with this area of law suggests that a nuisance claim could be advanced against a municipality. A search of court cases shows many nuisance claims against municipalities, most for overflowing sewer lines or water drainage systems. I haven’t found any cases that held a municipality liable in nuisance for dust arising from a roadway.
However, in Shamon vs. Biggar, a case where a municipality expropriated land and destroyed a shelterbelt to widen a road, in awarding damages the court considered the fact that the loss of the shelterbelt would mean more dust from the road. In some provinces, such as Alberta, nuisance claims against municipalities are severely restricted.
You might also want to check with Saskatchewan Highways. That department, in conjunction with municipalities, has developed minimum standards for grid roads.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
