In a recent case decided by the British Columbia Supreme Court, a plaintiff sued a defendant for the adverse impacts of the defendant’s landfill operations on the neighbouring plaintiff’s trailer park and cabin rental business. In that case, the defendant had failed to properly survey the boundary line between his property and the plaintiffs and, as a result, 8,100 square feet of the plaintiff’s property had been inundated to a depth of 28 ft. with wood-waste fill from a nearby industrial park. Due to delay by the defendant in responding to the plaintiff’s demand that the fill be removed and continuing landfill activities on the defendant’s property, by the date of trial, removal of the fill from the plaintiff’s land was no longer possible.

The court concluded that, as a result of his lack of care in determining the property line, the defendant had unlawfully trespassed on the plaintiff’s property. Because of the risk of fire if the landfill were opened, the only safe method of addressing this trespass was to cap the area of fill on the plaintiff’s property. However, the plaintiff asserted that there would remain a significant risk of fire and methane migration. On the basis of the expert evidence provided to the Court, the Court concluded that there was a possibility of underground combustion in the landfill and of methane migration.

The court concluded that the plaintiff was entitled to damages to address diminution in the value of the land and compensation for the continued presence of the wood waste. The court held:

"….I am of the opinion the Plaintiff is entitled to general damages that reflect the diminution of the value of the land and some amount to compensate the plaintiff for the defendant’s continued use of the land. The defendant used the plaintiff’s land in the sense that the trespass material provided support for a larger landfill. Further, the plaintiff is entitled to recover the cost of capping the wood waste so as to reduce or eliminate the risk of fire and methane migration and any other consequential damages."

However, in addition to such compensatory damages, the court determined that the plaintiff was also entitled to punitive damages because of the defendant’s failure to remove the wood waste at the plaintiff’s request. The court stated:

"I have concluded that the failure to remove the trespass material when requested occurred because the defendant wanted the plaintiff to agree to fill its property, which the defendant believed would be mutually beneficial. However, that was not the plaintiff’s desire. The plaintiff wished to have its land in its natural state, with the protection for privacy and the view over the ("defendant’s") property that the steep slope provided….I think, in the circumstances, that the defendant’s conduct became deliberate, was reprehensible and merits punishment; the defendant disregarded the plaintiff’s property rights largely because he thought that in the scheme of things those rights were trivial."