Is There Such a Thing as Simultaneous Custody of Contaminated Land?
Pursuant to sections 31.43 and 31.49 of the Environment Quality Act (the “EQA”), the Minister of Sustainable Development, Environment, Wildlife and Parks1 (the “Minister”) may order that any person that has or has had custody of a parcel of land since March 1, 2003 perform a characterization study on that land and rehabilitate the land if it is found to be contaminated.
Section 31.43 specifies that such custody may be “as owner or lessee or in any other capacity”. The custodian could even be a creditor.
The concept of “custody” of contaminated land is not defined in the EQA. However, when construing a special statute like the EQA, there is a presumption that a reference to a general-law concept such as custody is to be understood as a reference to a concept defined or used in Québec’s Civil Code (the “CCQ”)2.
The concept of “custody” is used in Article 1465 of the CCQ, which provides that “a person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault”. In this regard, courts and legal writers recognize that custody of a thing entails the power to control, manage and supervise it.
Recently, in the matter of Société d’assurances générales Northbridge v. 9180-2271 Québec Inc. (Restaurant Pizzicato)3, Dumas J. had to determine who had custody of the electrical equipment that had caused a fire. In his decision, Justice Dumas points out that custody of a thing is alternative rather that cumulative, such that simultaneous custody of something is a concept foreign to Québec law:
 The identity of the custodian of something is a question of fact. In order to determine who has custody of a thing, one must determine who has the power to control, manage and supervise it.
 While generally speaking it is the owner who supervises and manages a thing, it is often the case that another person in possession of the thing does so.
 As the learned writers Jean-Louis Baudoin and Patrice Deslauriers point out:
Custody depends directly on the power to control, supervise and manage something. Nothing prevents the habitual custodian of a thing from temporarily transferring its custody to someone else. Such is the case of an owner vis-à-vis a tenant or someone to whom the owner has granted a right of use. However, in order to determine whether this type of transfer has actually occurred, only a detailed factual analysis of the power held by the person sought to be held liable will be dispositive.
 Further on, the learned writers add that the custody of a thing may alternate but is never cumulative. There can thus never be more than one custodian who can be found liable.
Apart from sections 31.43 and 31.49 of the EQA dealing with the characterization and rehabilitation of land, that statute also refers to the concept of custody in conjunction with the powers conferred upon the Minister pursuant to sections 114.1, 115.0.1 and 115.1, which allow for a finding of liability to be made against anyone who has “custody or control” of a contaminant4. It will thus be interesting to monitor how the courts continue to apply the concept of custody in Québec civil law matters involving the EQA.
1 The Minister’s official title is “Ministre du Développement durable, de l’Environnement, de la Faune et des Parcs”. There is no official English version.
2 Pierre-André Côté, Interprétation des lois, 4th ed., Montréal, Thémis, 2009, no. 1287, p. 402.
3 2014 QCCS 1304.
4 Following the tragic events at Lac Mégantic on July 6, 2013, the Minister issued orders nos. 628 and 628-A pursuant to section 114.1. In the orders, the Canadian Pacific Railway Co., Montréal, Maine and Atlantic Canada Co. and Maine & Atlantic Railway Ltd. are deemed to be liable based on their “custody or control” of a contaminant. The orders are currently being contested before the Tribunal administratif du Québec, which may have to deal with arguments based on the concept of simultaneous custody.