Text of the Penobsquis report and comments

Last Updat­ed on 2026-04-07

Last Updat­ed on 2026-04-07

A few years ago (about 2014), the Min­ing Com­mis­sion­er of the Province of New Brunswick released his report on the com­plaint by res­i­dents of the Penob­squis area regard­ing dam­age to their prop­er­ty they claimed was the result of min­ing activ­i­ties by the Potash Cor­po­ra­tion of Saskatchewan.

As is detailed below, the Com­mis­sion­er’s report deals main­ly with a land sub­si­dence claim put for­ward by some res­i­dents. Water dam­age claims were with­drawn — some rea­sons for that with­draw­al are giv­en here. The whole sto­ry is quite an indict­ment of the Province’s appar­ent com­plete lack of regard for the con­cerns of its cit­i­zens. In short, the Province has failed to show that it ‘has the peo­ple’s back’. That, in fact, is the most alarm­ing aspect of this decades-old sto­ry. I am not in a posi­tion to eval­u­ate the dam­age claims made by Penob­squis res­i­dents, but the’ hands-off’, ‘let the lawyers decide’ atti­tude of suc­ces­sive Provin­cial gov­ern­ments is chill­ing.

The text of the Com­mis­sion­er’s report is below. This text was for­mat­ted for this web­site from a PDF ver­sion of the report. Some errors may have been intro­duced dur­ing this for­mat­ting — for those, I apol­o­gize (please send me an email if you find errors that mis­lead).

I am not a min­ing expert and can­not com­ment on the tech­ni­cal issues here. But I will make the fol­low­ing com­ments:

1. The Min­ing Com­mis­sion­er appears to be a lawyer and there is no evi­dence that he has suf­fi­cient tech­ni­cal back­gound to judge the mer­its of the evi­dence before him. Giv­en the pow­ers of the Com­mis­sion­er, it seems to me that it would be prefer­able (and more fair) if the Com­mis­sion­er had con­sid­er­able tech­ni­cal back­gound in the issues at hand, but had access to legal advice where need­ed. Here we have the oppo­site — in fact, it is worse than the oppo­site as there is no evi­dence that the Com­mis­sion­er had access to any inde­pen­dent tech­ni­cal advice.

2. The Min­ing Com­mis­sion­er’s office seems to be invis­i­ble. I can­not find any offices or staff list­ed at the GNB web­site. There is no obvi­ous loca­tion pro­vid­ed by GNB where cit­i­zens can obtain hear­ing tran­scripts, rul­ings, or any infor­ma­tion per­tain­ing to mak­ing claims or infor­ma­tion regard­ing claims. When I request­ed a copy of the Penob­squis rul­ing, the media per­son at the Dept of Ener­gy and Mines for­ward­ed me a PDF that was cre­at­ed from a fax sent from the Dal­housie office of the lawyer act­ing as Min­ing Com­mis­sion­er! Giv­en the his­to­ry of min­ing in NB, that is unac­cept­able.

3. The only wit­ness­es found to be ‘expert’ in the issues at hand were those brought for­ward by the Potash Cor­po­ra­tion. Once the Com­mis­sion­er ruled that these wit­ness­es, but not those of the res­i­dents, were experts then the deci­sion became a fore­gone con­clu­sion. The evi­dence of the experts will be giv­en more weight than tes­ti­mo­ny of those not regard­ed as experts. This is where the lack of inde­pen­dent tech­ni­cal advice to the Com­mis­sion­er is crit­i­cal. There seems to be as assump­tion that both par­ties will have equal access to tech­ni­cal experts. One par­ty, how­ev­er, may lack that access either because of fund­ing issues, or because the par­ty’s posi­tion just has no mer­it.

4. The Province is now draw­ing up new reg­u­la­tions regard­ing the shale gas indus­try. The Penob­squis sto­ry has illus­trat­ed a huge gap between the reas­sur­ances giv­en by politi­cians and real­i­ty. To move for­ward and regain the pub­lic’s trust, the Province needs a trans­par­ent, acces­si­ble process to fair­ly eval­u­ate claims of dam­age. The reg­u­la­to­ry author­i­ty needs to have access to inde­pen­dent tech­ni­cal advice such that poor­ly fund­ed claimants can ade­quate­ly present their case. The author­i­ty also needs to be able to pro­ceed in a time­ly man­ner, such that prop­er claims can be set­tled quick­ly. This will cost mon­ey, and the indus­try and/or roy­al­ty rev­enues will need to pay up front (through trusts or some oth­er mech­a­nism) to sup­port these activ­i­ties.

____________________________________________________________________

PROVINCE OF NEW BRUNSWICK

IN THE MATTER of a Com­plaint pur­suant to the Min­ing Act, S.N.B. 1985, c. M‑14.1 BETWEEN:

ELIZABETH NIXON & KEVIN NIXON, BRENDA LEE MORRELL & CYNTHIA McE­WAN, CHRISTINE BELL & WAYNE BELL, MAUREEN FITZGERALD, CARL ROUSE & MARGARET ROUSE, GARY THOMAS, HEATHER McCABE & MYRTLE McCABE, JAMES McK­NIGHT & APRIL McK­NIGHT, GORDON FRASER, GARNETT SALTER & . JANE SALTER, MEGAN ARSENEAULT, MARY NORRAD & BETH NORRAD, JAYNE McQUINN, RALPH FANJOY, RON SMITH AND HERMAN HAWTHORNE & RENA HAWTHORNE,

Com­plainants,

-and-

POTASH CORPORATION OF SASKATCHEWAN INC.,

Respon­dent.

Before: Rod­er­ick P. Duguay, Min­ing Com­mis­sion­er,

For the Province of New Brunswick, Pub­lic Hear­ing;

Place: Sus­sex, New Brunswick;

Appearances/Dates: Michel DesNeiges- Coun­sel for the Com­plainants,

Eliz­a­beth Nixon et al on March 16; May 16, 17, 18, l9, 20, 25, June 20th 21, 22, 2011

Mar­tin Aubin- Coun­sel for the Com­plainants,

Chris­t­ian Bell, Wayne Bell, Gary Thomas and Jaire McQuinn- on  March 16th; May 16th 17th 18th, 19th, 20th and 25th,June 20th, 21st, 22nd, 2011.

Her­man Hawthorne, Cyn­thia McE­wan and Eliz­a­beth (Beth) Nixon, an appoint­ed com­mit­tee for the Com­plainants Eliz­a­beth Nixon et a! with sub­sti­tutes Bren­da Lee Mor­rell, Beth Nor­rad and Mary Nor­rad appoint­ed for Sep­tem­ber 14th, Octo­ber 12th, 13th, 14th, 26th, 27th, 28th, Novem­ber 9th, 10th, 2011; April17th, 181h; May 2nd; June 20th,21st, 22nd, 27th, 28th, 29th, July 4th, 5th, 6th, 11th, 12th, 13th, Sep­tem­ber 10th, Octo­ber 1st 2012.

Her­man Hawthorne and Bren­da Lee Mor­rell an appoint­ed Com­mit­tee for the Com­plainants Heather McCabe and Myr­tle McCabe if Heather McCabe and Myr­tle McCabe are unable to attend the Hear­ings for Sep­tem­ber 14th, Octo­ber 12th, 13th, 14th, 26th 27th, 28th Novem­ber 9th 10th 2011, April 17th 18th, May 2nd, June 20th, 21st, 22nd, 27th, 28th, 29th, July 4th, 5th, 6th, 7th, 12th, 13th; Sep­tem­ber 10th; Octo­ber 1st, 2012;

Peter T. Zed, Q.C.- Coun­sel for the Respon­dent„ Ash­lee E. Scott, Patrick J. Dunn.

Date of Deci­sion: Jan­u­ary 31″, 2013.

DECISION OF THE MIINING COMMISSIONER

Back­ground: 1. This mat­ter came before me by way of an appli­ca­tion, (com­plaint) dat­ed July 15th, 2010 under Sec­tion 13 of the New Brunswick Min­ing Act, specif­i­cal­ly; sub­sec­tion 13 (l)© of the Act to con­duct artd car­ry out a Hear­ing in the mat­ter between 25 Com­plainants artd own­ers of sur­face rights on their land in Penob­squis, NB, and Potash Cor­po­ra­tion of Saskatchewan Inc., the hold­er of a Min­ing Lease. The Com­plainants state that they have suf­fered and con­tin­ue to suf­fer from var­i­ous dam­ages includ­ing loss of their well water, health prob­lems, anx­i­ety, expo­sure to  noise, arti­fi­cial light and dust and inter­fer­ence with the use and enjoy­ment of their prop­er­ties aris­ing out ofthe Min­ing activ­i­ties of Potash Cor­po­ra­tion of Saskatchewan Inc., at their Min­ing oper­a­tions in Penob­squis, New Brunswick The Com­plainants are seek­ing an Adju­di­ca­tion under the Min­ing Act and com­pen­sa­tion.

2. In regards to Juris­dic­tion in this mat­ter; Both Coun­sels for the Com­plainants, Michel DesNeiges and Mar­tin Aubin as well as coun­sel for the Respon­dent, Peter T. Zed,.Q.C., agreed that I had the pow­er to hear the Com­plaint under The Min­ing Act of New Brunswick, and to award mon­e­tary dam­ages if the facts pre­sent­ed them­selves.

3. I received a let­ter signed by Coun­sel Michel DesNeiges and dat­ed August 16th, 2011 that he had been dis­missed by the Com­plainants. I also received a let­ter signed by Coun­sel Mar­tin Aubin and dat­ed Sep­tem­ber 12th, 2011, that he had been dis­missed by the Com­plainants he rep­re­sent­ed.

4. On Sep­tem­ber 14th, 2011 at the Hear­ing I was informed that Her­man Hawthorne, Cyn­thia McE­wan and Eliz­a­beth (Beth) Nixon were the appoint­ed com­mit­tee for the Com­plainants Eliz­a­beth Nixon et al with sub­sti­tutes, Bren­da Lee Mor­rel, Beth Nor­rad and Mary Nor­rad if need­ed.

5. Her­man Hawthorne Wld Bren­da Lee Mor­rell were appoint­ed Com­mit­tee for the Com­plainants Heather & Myr­tle McCabe if either were unable to attend the Hear­ing on a cer­tain date.

6. On June 27th, 2012, Solic­i­tor Bren­da Lutz, Q.C., pre­sent­ed her­self at the Hear­ing in Sus­sex. She stat­ed she was retained by Solic­i­tor Andrew Brown to act as an Agent and serve as Legal Coun­sel for the Com­plainants. She gave evi­dence at the Hear­ing to the effect that all the Com­plainants had with­drawn their claims on a with prej­u­dice basis in regards to all Water issues includ­ing loss of well water and its incon­ve­niences, noise, dust and blast­ing and all its incon­ve­niences. The par­ties agreed no costs would be sought in respect of the set­tled com­plaints.

7. There­fore, the only issue before me as Min­ing Com­mis­sion­er now is to decide upon the issue of Sub­si­dence as all oth­er issues (claims) have been with­drawn as a set­tle­ment had been reached between all the Com­plainants and Potash Cor­po­ra­tion of Saskatchewan Inc.

8. On Sep­tem­ber 10th, 2012, Eliz­a­beth (Beth) Nixon pre­sent­ed her­self at the Hear­ing in Sus­sex and stat­ed in to evi­dence that the major­i­ty of the Com­plainants would be with­draw­ing their claims in regards to the remain­ing issue of Sub­si­dence. This with­draw­al was done on a with prej­u­dice basis on the record at the hear­ing in front of me and as well by way of writ­ten signed let­ters indi­cat­ing the same type of with­draw­al.

FACTS:

9. There­fore, the only remain­ing claims for deter­mi­na­tion by myself as Com­mis­sion­er are those of Beth Nor­rad, Heather McCabe and Myr­tle McCabe relat­ing to the issue of Sub­si­dence found at para­graphs 27, 28, 29, 35, 39, 44 and 45 of the Com­plaint.

10. The three remain­ing Com­plainants allege at para­graph 27 of the com­plaint that, between Sep­tem­ber I”, 2004 and July 15th, 2010. PCS, while oper­at­ing potash and salt works on the land beneath and adja­cent to the Com­plainants’ land, extract­ed min­er­als and pumped brine from cer­tain mine work­ings result­ing in sub­si­dence of the Com­plainants’ land and premis­es that has cre­at­ed uneven sur­face, cracks and fis­sures in the homes and premis­es of Com­plainants Heather McCabe, Myr­tle McCabe and Beth Nor­rad, there­by depriv­ing them of their right to the qui­et use and enjoy­ment of their prop­er­ties and vio­lat­ing their right not to be sub­ject­ed to inter­fer­ence with the sup­port of the water under their respec­tive lands.

11. The Com­plainants also allege at para­graph 28 of the Com­plaint that the same activ­i­ties of PCS have result­ed in sub­si­dence of the Com­plainants lands that has cre­at­ed uneven sur­faces, slop­ing of the laud and sink holes on the prop­er­ties of Com­plainants Heather McCabe, Myr­tle McCabe and Beth Nor­rad, there­by depriv­ing them of their right to the qui­et use and enjoy­ment of their prop­er­ties and vio­lat­ing their right not to be sub­ject­ed to inter­fer­ence with the sup­port of the water under their respec­tive lands.

12. The Com­plainants fur­ther allege at para­graph 29 of the Com­plaint that as a result of the effects on their lands and build­ings, all of their prop­er­ties have been ren­dered sig­nif­i­cant­ly less desir­able and their mar­ket val­ues have been con­sid­er­ably reduced.

13. The Com­plaints allege at para­graph 35 of the Com­plaint that they have suf­fered and con­tin­ue to suf­fer con­sid­er­able anx­i­ety includ­ing a great sense of frus­tra­tion as a result of their inabil­i­ty to ful­ly enjoy and ben­e­fit from the use of their prop­er­ties, and anx­i­ety relat­ed to the uncer­tain­ty about the future of their prop­er­ty invest­ments in Penob­squis.

14. The Com­plainants have there­fore claimed the fol­low­ing relief at para­graph 39, 44 and 45 of the Com­plaint:

- Com­pen­sa­tion for:

Loss of qui­et use and enjoy­ment of their prop­er­ties; Dimin­ished prop­er­ty val­ues; All dam­ages past, present and future; — the return of their land to its nat­ur­al state; and — inter­est on dam­ages.

15. In addi­tion, the Com­plainants claim any oth­er relief deemed prop­er­ty by the Com­mis­sion­er, and their costs of these pro­ceed­ings.

16. The Com­plainant, Beth Nor­rad tes­ti­fied at the Hear­ing on June 20, 2011. She gave evi­dence with respect to dam­age to her prop­er­ty alleged to be caused by sub­si­dence. She stat­ed her prop­er­ty was sit­u­at­ed in Penob­squis at 12412 Route ll4 (PID 127253). She tes­ti­fied that she resides at the home with her sis­ter Mary and she did live in the home dur­ing the peri­od cov­ered by the Com­plaint. She tes­ti­fied that the house was prob­a­bly built in the ear­ly 1960’s as it con­tained a cold war era bomb shel­ter.

17. Beth Nor­rad intro­duced into evi­dence a series of 34 pho­tographs of the house and prop­er­ty includ­ing her garage which were marked as Exhib­it “AA”. She stat­ed the house and prop­er­ty were “immac­u­late” when she and her sis­ter pur­chased it in 2007. She stat­ed she did not have a home inspec­tion done.

18. Beth Nor­rad stat­ed that she got work done in the base­ment as she con­struct­ed an Apart­ment there.

19. She described her biggest issue as “events” in which the house would move and shake. In Sep­tem­ber 2009, she expe­ri­enced and event in which her house tipped toward the South East. She stat­ed that while she is sure the garage floor was cracked before the Sep­tem­ber 2009 ”event”, the crack wors­ened at that time. She stat­ed leak­ing in her base­ment now flows South East.

20. Beth Nor­rad also tes­ti­fied as to three addi­tion­al shak­ing events in Decem­ber 2009, Octo­ber 2012 and Spring 2011 which were accom­pa­nied by a “boom” sound. After the last event she said the ceil­ing tiles inher base­ment became “wonky”.

21. Ms. Nor­rad tes­ti­fied that she has a water­fall under­neath a tree on her prop­er­ty and that Mr. Bri­an Roul­ston from P.C.S. informed her of that. She tes­ti­fied that her prop­er­ty is sink­ing and gave as exam­ples a shal­low hole in her front yard and a deep­er hole in her back yard. She stat­ed her new­ly installed porch snapped off the home dur­ing the Sep­tem­ber 2009 ”event’.

22. She also tes­ti­fied that she was hav­ing a hard time to sell the prop­er­ty and she asked Bri­an Roul­ston of P.C.S. to pur­chase it. He said sor­ry, but we’re not in the Real Estate busi­ness and we don’t want to set a prece­dent.

23. The Com­plainant, Heather McCabe tes­ti­fied on June 22nd, 2011. She gave evi­dence with regard to dam­age to her prop­er­ty alleged to be caused by sub­si­dence. She stat­ed her prop­er­ty was sit­u­at­ed in Penob­squis at 10 Clover Lane (PID 30205355) and she moved there in Sep­tem­ber 2003. She lives there with her moth­er and runs a dog/animal res­cue shel­ter.

24. Heather McCabe pre­sent­ed into evi­dence a pack­age of 34 pic­tures of her home and prop­er­ty that was marked Exhib­it “JJ”. She tes­ti­fied that begin­ning in the Spring of 2005, the chip­board skirt­ing under her 1987 Ken­craft mini home start­ed to tilt upwards. She described call­ing PCS and hav­ing Bob Owen and Bri­an Roul­ston vis­it her home in Spring 2009 or 2010 to address her con­cerns that dam­age to her home was caused by sub­si­dence, Mr. Roul­ston told her that the dam­age to her home was not due to sub­si­dence, but appeared to result from incom­plete eave­strough­ing, which allowed water to come off the roof and form an ice buildup, which lift­ed up the skirt­ing.

25. She described bulging walls, a shift­ing door­frame, a cracked wall, a smell of mold and mildew in her home and a bow­ing of sag­ging roof. Around late sum­mer of 2005, her back stairs start­ed to shift, to the extent that the rail­ing was block­ing her back door.

26. With the help of friends, she built a new deck on the back of the house, lev­el with the back door and flush with the house. She stat­ed that she has had to remove por­tions of the bot­tom of her back door, because the door has low­ered rel­a­tive to the deck sur­face. There are now gaps between the deck and the house, where before she states that it was flush.

27. Heather McCabe tes­ti­fied that her kitchen coun­ters are pulling away from the wall and there is mold in her cup­boards and draw­ers.

28. Ms. McCabe stat­ed that her land is no longer drain­ing prop­er­ly, as the back­yard no longer slopes away from the house as it used to. She has noticed “dips” or “gul­lies” in the land that were not there before, although she admits some could be attrib­uted to land usage. This has result­ed in water accu­mu­lat­ing under her house.

29. Ms_ McCabe tes­ti­fied that a hole had devel­oped in the floor of her front entrance where the floor has rot­ted.

30. She states she had prob­lems clos­ing her man­u­al garage door in the win­ter of 2010–20l1, and had to dis­as­sem­ble it. She states there is a gap between the door and the wall that was not there when she pur­chased the prop­er­ty in 2003.

31. Com­plainant Myr­tle (Geor­gia) McCabe, Heather McCabe’s moth­er, who resides with her daugh­ter at 10 Clover Lane, Penob­squis tes­ti­fied that she suf­fers from a num­ber of ail­ments, all of which she attrib­ut­es to stress due to the sit­u­a­tion she and her daugh­ter are present­ly in.

32. The Com­plainants also called 15 wit­ness­es that were employed by the Gov­ern­ment of New Brunswick. How­ev­er the vast major­i­ty of their evi­dence was in respect to Water Issues which were resolved by the Com­plainants and Potash Cor­po­ra­tion of Saskatchewan Inc. Many of the 15 Gov­ern­ment wit­ness­es were asked ques­tions about sink­holes and sub­si­dence but none were qual­i­fied as an expert in sub­si­dence to answer the ques­tions as sub­si­dence was not their field of exper­tise.

33. The Com­plainants did how­ev­er call two wit­ness­es to tes­ti­fy as to the mag­ni­tude of sub­si­dence in the Penob­squis area per­tain­ing to its caus­es and its effect on the Com­plainants land and premis­es.

34. Mark Con­nell tes­ti­fied on behalf of the Com­plainants. He is a Geol­o­gist and has been since 1960. He was not qual­i­fied to give expert opin­ion evi­dence with respect to sub­si­dence. This wit­ness did not have a PhD. and had nev­er tes­ti­fied as an expert before; and nev­er pub­lished any papers on sub­si­dence and had no aca­d­e­m­ic back­ground or prac­ti­cal expe­ri­ence in the field of sub­si­dence there­fore he was not qual­i­fied as an expert wit­ness.

35. Mr. Con­nell gave a pre­sen­ta­tion at the hear­ing titled “Caus­es and Effects of Pri­ma­ry and Sec­ondary Sub­si­dence and Inad­ver­tent Dis­so­lu­tions Process­es at the PCS Penob­squis Mine”, (Exhib­it “TT”). His pre­sen­ta­tion was intend­ed to out­line the rudi­ments of the geol­o­gy at the mine and sur­round­ing area that world cause the sink­ing land­scape, a low­ered water table and pos­si­ble dis­solved under­ground cav­i­ties. He spoke gen­er­al­ly about the process by which min­ing activ­i­ties cause sub­si­dence of land, and illus­trat­ed this process with dia­grams depict­ing sub­si­dence over coal mines. Turn­ing to the specifics of the sit­u­a­tion at the Penob­squis mine, he adapt­ed a dia­gram from the Cana­di­an Cen­tre for Geo­det­ic Engi­neer­ing (“CCGE”) show­ing the zone of pri­ma­ry sub­si­dence over the mine work­ings, and spec­u­lat­ed that a zone of sec­ondary sub­si­dence observed north of the mine work­ings was caused by draw­down of the water table due to water inflow into the mine and dis­so­lu­tion of salt as the water flows into the mine.

36. Mark Con­nell did not tes­ti­fy as to the effects of sub­si­dence on sur­face struc­tures in Penobquis, New Brunswick.

37. Mr. Con­nel­l’s pre­sen­ta­tion went into detail into try­ing to estab­lish a causal con­nec­tion between min­ing activ­i­ty in Penob­squis and the Com­plainants loss of well water, how­ev­er the issue of loss of water has been resolved between the par­ties.

38. Mr. Con­nell on cross exam­i­na­tion acknowl­edged that he was not an expert in sub­si­dence and his place­ment of addi­tions onto the C.C.G.E. dia­gram at page 16 of his pre­sen­ta­tion (“mod­el for Sub­si­dence Devel­op­ment adapt­ed from C.C.G.E.’ was spec­u­la­tive as to their loca­tion.

39. Mr. Con­nell on cross exam­i­na­tion also acknowl­edged that sub­si­dence described or depict­ed at pages 12 to 14 of his pre­sen­ta­tion referred to dif­fer­ent loca­tions and dif­fer­ent min­ing meth­ods than are in use at the Potash Cor­po­ra­tions Mine in Penob­squis and he acknowl­edged that he did not exam­ine the hole shown in pho­to­graph at page 24 of his pre­sen­ta­tion (Exhib­it “TI’ ”’) to deter­mine if indeed it was a sink hole.

40. Lawrence Wuest also tes­ti­fied on behalf of the Com­plainants. He has done grad­u­ate work at the U.N.B. Fac­ul­ty of Forestry and Envi­ron­men­tal Man­age­ment. He stat­ed his skill was devel­op­ing spa­tial ana­lyt­ic meth­ods for inves­ti­gat­ing inter-rela­tion­ships of veg­e­ta­tion, envi­ron­ment and wildlife with­in New Brunswick, Cana­da. Mr. Wuest has sev­er­al pub­li­ca­tions to his cred­it but none on sub­si­dence. He has nev­er been qual­i­fied as an expert before and he has nev­er tes­ti­fied in court or at any hear­ing as an expert there­fore I ruled he was not an expert wit­ness per­tain­ing to the issue of sub­si­dence.

41. Mr. Wuest pre­sent­ed evi­dence by way of a Report dat­ed March 16th, 2012 (Exhib­it “WW”) in regards to “Car­to­graph­ic Assess„ment of Archi­tec­tur­al, func­tion­al and Struc­tur­al risk to hous­es and relat­ed infra­struc­ture at Penob­squis, NB based on report­ed sub­si­dence above the Potash Mine under­ly­ing the Com­mu­ni­ty”. He pre­pared a pre­sen­ta­tion sum­ma­riz­ing his find­ings {Exhib­it “XX).

42. Mr. Wuest acknowl­edged he had not dealt with sub­si­dence before this report (Exhib­it “WW”) and that he has no edu­ca­tion or for­mal train­ing in rock mechan­ics, ground defor­ma­tion or engi­neer­ing.

43. Mr. Wuest in prepar­ing his pre­sen­ta­tion used infor­ma­tion and find­ings from sev­er­al reports and papers such as but not lim­it­ed to Wadding­ton, Singh, Gold­er, Jacques Whit­ford and Adam and Anna Chrzanows­ki and formed his own pro­fes­sion­al opin­ion, not expert opin­ion.

44. Mr. Wuest relied entire­ly on data col­lect­ed by CCGE over the course of 20 years of sub­si­dence mon­i­tor­ing in Penob­squis. He con­duct­ed spa­tial analy­sis of the CCGE data to deter­mine to the spa­tial dis­tri­b­u­tion of ver­ti­cal sub­si­dence and hor­i­zon­tal dis­place­ment. He con­clud­ed that val­ues for tilt, hor­i­zon­tal strain, and ground cur­va­ture in Penob­squis, which he derived from the CCGE data, have been asso­ci­at­ed with dam­age requir­ing repair. He found that in the area of high­est tilt, it reach­es a max­i­mum of 2.5 mm/m. He found the max­i­mum val­ue of hor­i­zon­tal strain was 1.4mm/m. he found that the radius of cur­va­ture in cer­tain mon­i­tored loca­tions ranged from 15 km to 50 km, but cau­tioned that the spot­ty nature of most of these areas of ele­vat­ed risk and their asso­ci­a­tion with sur­vey points sug­gest a com­pu­ta­tion­al arti­fact. He report­ed that ana­lyt­ic curve fit­ting along two lines of sub­si­dence move­ments con­fined radius of cur­va­ture of 28 km to 50 km.

45. His report notes at p. 16 that the uncer­tain­ty in the max­i­mum ver­ti­cal sub­si­dence was esti­mat­ed at 30% to 40%. The report goes on to state, “giv­en the large uncer­tain­ty the actu­al risk could be quite a bit small­er and incon­se­quen­tial or the risk could be quite a bit larg­er.”

46. Mr. Wuest relied on tables com­piled by Arthur Wadding­ton in 2009 and Singh in 1992 set­ting out cat­e­gories of dam­age to sur­face struc­tures expect­ed as the val­ues of tilt, strain and cur­va­ture increase, and sug­gest­ed that the val­ues he derived from the CCGE mea­sure­ments could lead to legit­i­mate claims for dam­age to habi­ta­tion.

47. Mr. Wuest acknowl­edged on cross-exam­i­na­tion that Wadding­ton’s stan­dards for deter­min­ing sur­face impacts of sub­si­dence were based on mea­sure­ments made in Aus­tralia and that some of the mea­sure­ments would be par­tic­u­lar to coal mines. He also acknowl­edged that the table by Singh (1992) at p. 20 of his pre­sen­ta­tion was prob­a­bly gen­er­at­ed by the observed sub­si­dence over coal mines and not Potash mines.

48. Lau­rence Wuest also acknowl­edged on cross-exam­i­na­tion the pos­si­bil­i­ty that the uncer­tain­ty rage of 30% to 40% for the val­ues of ver­ti­cal sub­si­dence and hor­i­zon­tal strain could he much high­er or much low­er and he also con­ced­ed that there are caus­es oth­er than sub­si­dence for cracks in con­crete foun­da­tions and plas­ter walls, and that it would require inves­ti­ga­tion by struc­tur­al engi­neers to deter­mine what dam­age was there and the like­li­hood it was con­nect­ed to caus­es oth­er than sub­si­dence.

49. Dr. Adam Chrzanows­ki and Dr. Anna Chrzanows­ki tes­ti­fied on behalf of the Respon­dent. The Com­plainants and their respec­tive Com­mit­tees along with Coun­sel for the Respon­dent acknowl­edged and agreed that both Doc­tor’s Adam and Anna Chrzanows­ki were Expert Wit­ness­es in the field of sub­si­dence and would present Expert Evi­dence on the effects of sub­si­dence on the sur­face infra­struc­ture in Penob­squis and on the like­li­hood that land set­tle­ment has caused any of the dam­age to build­ings report­ed by the Com­plainants. There­fore, for the pur­pose of this Hear­ing, both Doc­tor’s were con­sid­ered as Expert Wit­ness­es in the field of sub­si­dence.

50. Dr. Adam Chrzanows­ki is a pro­fes­sion­al engi­neer with grad­u­ate degrees in min­ing sur­vey­ing and sur­vey­ing engi­neer­ing. He is a pro­fes­sor emer­i­tus of the Depart­ment of Geo­desy and Geo­mat­ics Engi­neer­ing at the Uni­ver­si­ty of New Brunswick, and the Direc­tor of the CCGE.

51. Dr. Anna Chrzanows­ki is a Senior Research Asso­ciate with the Depart­ment of Geo­desy and Geo­mat­ics Engi­neer­ing at UNB with grad­u­ate degrees in pre­ci­sion mechan­ics, mechan­i­cal engi­neer­ing and min­ing geo­me­chan­ics, and geo­mat­ics.

52. Both have been involved in inte­grat­ed mon­i­tor­ing and mod­el­ing of ground sub­si­dence in the Penob­squis Potash Mine since 1995, with Dr. Adam Chzanows­ki hav­ing been involved since the pro­gram’s incep­tion in 1989.

53. They pre­sent­ed to me a report dat­ed Jun 25th 2012 (Exhibits “7 & 8”) and a slide show enti­tled “Effects of PCS under­ground min­ing on the sur­face infra­struc­ture in Penob­squis, New Brunswick”. CCGE has mon­i­tored sub­si­dence at the Penob­squis mine site since 1989 using a net­work of sub­si­dence mon­u­ments and annu­al lev­el­ing sur­veys. GPS mon­i­tor­ing began in 1993, sup­ple­ment­ed in dense­ly wood­ed areas by mea­sure­ment of angles and dis­tances using elec­tron­ic instru­ments. They now have 70 points mon­u­ment­ed. Despite dif­fi­cul­ties in the field with mon­i­tor­ing points being destroyed and poor vis­i­bil­i­ty to satel­lites from some loca­tions, Dr. Adam Chrzanows­ki con­sid­ers the PCS mon­i­tor­ing pro­gram the best in North Amer­i­ca.

54. CCGE mea­sure­ments show that the max­i­mum accu­mu­lat­ed ver­ti­cal sub­si­dence in the vicin­i­ty of the mine reached 0.75 min 2012. The Chrzanowski’s stat­ed it is not the absolute depth of ver­ti­cal sub­si­dence that caus­es dam­age to sur­face struc­tures. Rather, it is the dif­fer­en­tial ver­ti­cal sub­si­dence between two points (tilt), dif­fer­en­tial hor­i­zon­tal move­ments between two points (hor­i­zon­tal strain), and dif­fer­en­tial tilt between two points (ground cur­va­ture) that can cause dam­age to sur­face struc­tures. It is, how­ev­er, a ques­tion of degree. Below a cer­tain mag­ni­tude, dif­fer­en­tial ground move­ments caused by sub­si­dence will not dam­age sur­face struc­ture . The pos­si­bil­i­ty of dam­age also depends on the nature of the sur­face struc­ture in ques­tion. A wood-frame res­i­den­tial house is less sen­si­tive to sub­si­dence than a large indus­tri­al facil­i­ty.

55. The Dr’s. Chrzanows­ki used the mea­sure­ments from the annu­al mon­i­tor­ing sur­veys to cal­cu­late ground defor­ma­tion para­me­ters, and then com­pared those val­ues with accept­ed tol­er­ances for these defor­ma­tion para­me­ters with­in which no struc­tur­al dam­age should occur. The para­me­ters con­sid­ered were:

- Ver­ti­cal dis­place­ment; — Hor­i­zon­tal dis­place­ment; ‑Tilt (dif­fer­en­tial ver­ti­cal sub­si­dence of the ground);

- Hor­i­zon­tal strain (dif­fer­en­tial hor­i­zon­tal move­ments, pro­duc­ing either ten­sile or com­pres­sive strain);

- Ground cur­va­ture;

56. Hav­ing con­sid­ered the spec­i­fi­ca­tions for allow­able ground defor­ma­tion set in a num­ber of juris­dic­tions (as Cana­da has no such rec­og­nized stan­dards), the Dr’s. Chrzanows­ki select­ed the Pol­ish stan­dards, as these were devel­oped not only for coal but also for met­al min­ing and are based on sim­i­lar cli­mate con­di­tions.

57. Based on the mea­sure­ments of accu­mu­lat­ed sub­si­dence over the mine, and infor­ma­tion as to the loca­tion of the Com­plainan­t’s prop­er­ties, the Dr’s. Chrzanows­ki looked for reg­u­la­tions that would pro­vide guid­ance on the expe­ri­ence of old­er mines in heav­i­ly pop­u­lat­ed areas as to the extent of ground defor­ma­tion that sur­face infra­struc­tures can tol­er­ate before sus­tain­ing dam­age. They select­ed the Pol­ish reg­u­la­tions, as these were the best doc­u­ment­ed, based on over 60 years of stud­ies in cli­mate con­di­tions sim­i­lar to Cana­da

58. Dr. Adam Chrzanows­ki remarked that cli­mate con­di­tions were an impor­tant fac­tor, because there are sea­son­al nat­ur­al caus­es of defor­ma­tion of sur­face struc­tures- pro­duced, for exam­ple, by tem­per­a­ture changes. The Pol­ish reg­u­la­tions were adapt­ed for types of min­ing oth­er than coal min­ing, such as met­al min­ing. If any­thing, the Pol­ish reg­u­la­tions yield over­ly pes­simistic pre­dic­tions for dam­age when applied to Penob­squis, as they are based main­ly on sub­si­dence effects on brick hous­es and con­crete struc­tures, and large, sen­si­tive struc­tures., where­as the sur­face infra­struc­ture in Penob­squis con­sists of small­er, wood-framed res­i­den­tial con­struc­tions. The Pol­ish reg­u­la­tions indi­cat­ed that dam­age to small struc­tures such as res­i­den­tial hous­es with a foot­print of 10 to 15 metres is pos­si­ble when ground defor­ma­tion val­ues in Cat­e­go­ry II are observed (tilt exceed­ing 2.S mil­lime­tres per metre, strain exceed­ing 1.5 mil­lime­tres per metre, and radius of cur­va­ture of 20 km or less).

59. The wit­ness­es tes­ti­fied that the pol­ish spec­i­fi­ca­tions divide min­ing areas into one of five cat­e­gories based on max­i­mum defor­ma­tion para­me­ters and they explained the sig­nif­i­cance of defor­ma­tion val­ues in each of the cat­e­gories of their report as fol­lows:

-The val­ues of allow­able tol­er­ances for max­i­mum tilt hor­i­zon­tal strain, and radius of cur­va­ture are list­ed in Table 2.1 for six dif­fer­ent cat­e­gories:

• If a min­ing ter­rain is clas­si­fied as Cat­e­go­ry 0, the min­ing effects on the sur­face infra­struc­ture, includ­ing large and sen­si­tive struc­tures, may be com­plete­ly neglect­ed.

• In the min­ing area clas­si­fied as Cat­e­go­ry I, either no dam­ages should be expect­ed or hair­line cracks may devel­op in the foun­da­tions or walls of large struc­tures, depend­ing o the dimen­sions and struc­tur­al qual­i­ty. Sen­si­tive struc­tures, large pow­er plants, met­al­lur­gi­cal plants, rail­way sta­tions, hos­pi­tals, tun­nels, gas pipelines and mul­ti­sto­ry build­ings are per­mit­ted with­out any strength­en­ing or spe­cial pro­tec­tive mea­sures.

• Cat­e­go­ry II per­mits for the same struc­tures as Cat­e­go­ry I but minor dam­ages, easy to repair, may occur. Large and sen­si­tive struc­tures may require pre­cau­tion­ary struc­tur­al strength­en­ing. Small res­i­den­tial hous­es may devel­op hair­line cracks in the foun­da­tion and walls.

• Ter­rain of Cat­e­go­ry III may require par­tial strength­en­ing of the struc­tures. Struc­tur­al dam­ages most like­ly will occur in any type of struc­tures by they will not be threat­en­ing the struc­tur­al integri­ty. Large and sen­si­tive struc­tures and mul­ti-sto­ry build­ings are not per­mit­ted.

• Struc­tures in the ter­rain of Cat­e­go­ry IV may be seri­ous­ly dam­aged. Only small res­i­den­tial build­ings and less impor­tant struc­tures are per­mit­ted but they may require struc­tur­al strength­en­ing.

• Ter­rain clas­si­fied as of Cat­e­go­ry V is con­sid­ered as use­less for any con­struc­tions work.

Con­cern­ing small (1–2 storey) res­i­den­tial hous­es, struc­tur­al engi­neers in Cen­tral Europe start con­sid­er­ing effects of ground sub­si­dence when the defor­ma­tion para­me­ters reach val­ues of Cat­e­go­ry II.

60. In regards to tilt, the wit­ness­es stat­ed the tilt of the orig­i­nal Com­plainan­t’s prop­er­ties, based on mea­sure­ments tak­en dur­ing the annu­al sur­veys rages from a low of 0.00 mm/m (Thomas, McQuinn House, and Arse­neault) to a high of 1.0 mm/m (Smith). The mea­sured tilt places these prop­er­ties in Cat­e­gories 0 and I with respect to the effects of tilt. Of the remain­ing Com­plainants, the tilt of the Nor­rad prop­er­ty was 0.2 mm/m (Cat­e­go­ry 0) and the McCabe prop­er­ty was 0.8 mm/m (Cat­e­go­ry I). This would not be expect­ed to pro­duce any dam­age to small res­i­den­tial struc­tures. Fur­ther­more, the points cho­sen for cal­cu­la­tion of the tilt expe­ri­enced by indi­vid­ual prop­er­ties were those that would yield the max­i­mum val­ues. The cal­cu­la­tions were thus con­ser­v­a­tive in favor of the home own­ers.

61. In regards to hor­i­zon­tal strain, the wit­ness­es tes­ti­fied the max­i­mum hor­i­zon­tal strain was cal­cu­lat­ed for the whole area under obser­va­tions, as there were insuf­fi­cient mark­ers to cal­cu­late the strain with respect to each of the Com­plainan­t’s prop­er­ties. The max­i­mum ten­sion­al strain (stretch­ing) was cal­cu­lat­ed as 0.27 mm/m. This is the mea­sure of most rel­e­vance, since the authors note that the ten­sion­al strength of mate­r­i­al is usu­al­ly much less than its com­pres­sive strength. The whole area falls into Cat­e­go­ry 0 with­in respect to their effects of ten­sion­al strain. The max­i­mal com­pres­sive strain was cal­cu­lat­ed as rang­ing from 0.8 to 0.9 1 mm/m for points in the cor­ri­dor above the salt rooms extrac­tion. This places prop­er­ties in that cor­ri­dor in Cat­e­go­ry I with respect to com­pres­sive strain. The report states that no Cat­e­go­ry II val­ues of com­pres­sive strain have occurred.

62. In regards to Cur­va­ture, the wit­ness­es tes­ti­fied that the radius of cur­va­ture was cal­cu­lat­ed for the area where it was expect­ed to be small­est (i.e., like­ly to cause the most sig­nif­i­cant sur­face effects), This was in the vicin­i­ty of mon­i­tor­ing point CO north of the mine open­ings, the bot­tom of the zone of sec­ondary sub­si­dence. The Chrzanowski’s deter­mined the radius of cur­va­ture at that loca­tion to be R = 90 km, which places that loca­tions with­in Cat­e­go­ry 0 which respect to ground Cur­va­ture. As the authors note, there are no hous­es locat­ed with­in the vicin­i­ty of point CO. The authors state that all of the oth­er prop­er­ties would also full with­in Category‑, as the cur­va­ture at point CO was the max­i­mum. There­fore, there are expect­ed to be no effects on small res­i­den­tial sur­face infra­struc­ture where ground defor­ma­tion is in Cat­e­gories 0 (Nor­rad) and I (McCabe). The hair­line cracks in foun­da­tions or walls that maybe expect­ed to devel­op where defor­ma­tion is with­in Cat­e­go­ry I are restrict­ed to large struc­tures. By con­trast, the struc­tures which the Com­plainants alleged have been dam­aged by sub­si­dence ate small res­i­den­tial struc­tures least like­ly to suf­fer sub­si­dence dam­age. Only when the ground defor­ma­tion val­ues fall with­in Cat­e­go­ry II is minor dam­age to sur­face infra­struc­ture expect­ed to occur. For instance, small res­i­den­tial hous­es may devel­op hair­line cracks in the foun­da­tions and walls. No ground defor­ma­tion val­ues with­in Cat­e­go­ry II have been observed in Penob­squis.

63. The wit­ness­es tes­ti­fied that the ground defor­ma­tions cal­cu­lat­ed based on the obser­va­tions in Penob­squis, N .B. all fall with­in the cat­e­gories 0 and. Their report states that no ground defor­ma­tion in Cat­e­go­ry II has occurred with­in the mon­i­tored areas. Both Doc­tor Adam and Anna Chrzanows­ki stat­ed and con­clud­ed that any dam­age to the sur­face infra­struc­ture did not occur as a result of sub­si­dence and may be attrib­uted to oth­er fac­tors. They state that there are oth­er caus­es for ground defor­ma­tion apart from sub­si­dence. Sea­son­al tem­per­a­ture changes, which reach up to 70°C in New Brunswick, can cause 0.7 mm/m of hor­i­zon­tal strain (Cat­e­go­ry I). Oth­er nat­ur­al caus­es include changed in geot­ech­ni­cal para­me­ters of soil between dry and wet and between win­ter and sum­mer.

64. The wit­ness­es tes­ti­fied that they reject­ed the use of the Aus­tralian defor­ma­tion stan­dards select­ed by the Com­plainants wit­ness, Lawrence Wuest on the basis that the Aus­tralian stan­dards were devel­oped in the con­text of coal min­ing, while the Pol­ish stan­dards have been the prod­uct of a mul­ti­dis­ci­pli­nary effort, and are more suit­able to Cana­di­an cli­mate con­di­tions. The sea­son­al tem­per­a­ture vari­a­tion, from a low of ‑35 to 30°C to a high of 30°C is com­pa­ra­ble between Cana­da and Poland, while in Aus­tralia the tem­per­a­ture dif­fer­en­tial would be half that. Nat­ur­al sea­son­al tem­per­a­ture changed could pro­duce a Cat­e­go­ry val­ue of train (0.7 mm/m). The sim­i­lar­i­ty of the cli­mates of Cana­da and Poland ren­ders the Pol­ish tol­er­ance val­ues more applic­a­ble to Cana­da than those devel­oped in Aus­tralia.

65. In regards to sink holes, Dr. Adam Chrzanows­ki tes­ti­fied that he would nev­er expect sink holes as a direct effect of ground sub­si­dence in the Penob­squis area, giv­en that it is above salt min­ing at depths of 500 metres cov­ered by cap rock.

66. Doc­tor’s Adam and Anna Chrzanows­ki at the end of their tes­ti­mo­ny and fol­low­ing cross exam­i­na­tion both con­firmed that their report (Exhib­it 7) accu­rate­ly reflect­ed their expert views.

67. Michael Whit­ford also tes­ti­fied on behalf of the Respon­dent. He is vice Pres­i­dent of Geot­e­chini­cal Cana­da and is employed by Stan­tec as a pro­fes­sion­al engi­neer reg­is­tered in New Brunswick and Maine spe­cial­iz­ing in geot­ech­ni­cal and envi­ron­men­tal engi­neer­ing. He has been qual­i­fied in the past as an expert in Provin­cial court and Court of Queens Beneh as to set­tle­ment issues, con­di­tions of build­ings and geot­ech­ni­cal issues. I ruled that Mr. Whit­field was qual­i­fied to give expert evi­dence with respect to Land Set­tle­ment and Soil Mechan­ics. He was not qual­i­fied as an expert in sub­si­dence.

68. Mr. Whit­ford tes­ti­fied that the effects of set­tle­ment on build­ings are the same whether the cause of the set­tle­ment is sub­si­dence, soft soil, or an under­min­ing issue. The fact that Mr. Whit­fr­rd had not dealt with set­tle­ment caused by sub­si­dence would not there­fore have any bear­ing on his abil­i­ty to deter­mine whether struc­tures in Penob­squis have sus­tained set­tle­ment-type dam­age. On cross-exam­i­na­tion, he main­tained that set­tle­ment did not cause the dam­age report­ed by the Com­plainants, and that since sub­si­dence leads to set­tle­ment, he inferred that sub­si­dence did not cause the dam­age.

69. Mr. Whit­ford tes­ti­fied that he made a con­ser­v­a­tive assess­ment of the strength of the Com­plainan­t’s build­ings, based on pho­tographs and his obser­va­tions on dri­ving past them. He not­ed that the assess­ment of sur­face effects of sub­si­dence could be approached either from the ter­rain per­spec­tive, by cat­e­go­riz­ing the extent of changes of the ter­rain as the Dr’s. Chrzanows­ki had done, or by cat­e­go­riz­ing sur­face struc­tures accord­ing to their strength. The cat­e­gories for strength of infra­struc­ture pro­ceed from high to low, 4 being best and 0 being worst. Mr. Whit­ford deter­mined that the hous­es in Penob­squis fell into the high­est two cat­e­gories for stretch of infra­struc­ture, 3 and 4, which indi­cat­ed that these hous­es are least like­ly to be affect­ed by ground changes.

70. Mr. Whit­field stat­ed that in respect to the pho­tographs tak­en by Ms. Beth Nor­rad and marked as Exhib­it “AA” and those tak­en by Heather McCabe and marked as Exhib­it “J.J.” he did not see any pho­tos that he con­sid­ered as depict­ing Struc­tur­al Dam­age that was defin­i­tive­ly the result of set­tle­ment issues. In his expert opin­ion he stat­ed that much of the dam­age to con­crete was due to shrink­age and the result of not hav­ing foun­da­tions prop­er­ty pro­tect­ed from frost action. He tes­ti­fied that near­ sur­face soils in the Penob­squis area are typ­i­cal­ly fine-grained and frost sus­cep­ti­ble.

71. Mr. Bri­an Roul­ston also tes­ti­fied on behalf of the Respon­dent. He stat­ed he is a geol­o­gist employed by PCS. He has been involved with explo­ration and min­ing of the Penob­squis Potash Deposit since 1974 and is respon­si­ble for geo­log­i­cal and mine engi­neer­ing mat­ters at the Penob­squis mine.

72. This wit­ness tes­ti­fied he has been involved with the sub­si­dence mon­i­tor­ing pro­gram at the Penob­squis mine since its incep­tion in 1989. He approached doc­tor’s Adam and Alma Chrzanows­ki to per­form sub­si­dence mea­sure­ments. He advo­cat­ed for sub­si­dence mon­i­tor­ing despite the absence of a reg­u­la­to­ry require­ment in New Brunswick in order to ver­i­fy that there was reg­u­lar, slow, steady sub­si­dence occur­ring over the mine as would be report­ed over any potash or salt mine.

73. He stat­ed into evi­dence that PCS relied on Doc­tor Adam Chrzanows­ki to direct them as to the quan­ti­ty and loca­tion of sub­si­dence moments required for the mon­i­tor­ing pro­gram and he nev­er refused to install mon­u­ments that Dr. Chrzanows­ki rec­om­mend­ed be installed.

74. Mr. Roul­ston tes­ti­fied that PCS did receive a request from Heather McCabe to come and vis­it her prop­er­ty. He stat­ed that he went with Bob Owen in 2009 or 20i0 to vis­it the home of Heather and Myr­tle McCabe. The skirt­ing at the back of their mini-home was being forced up near the back door. The hor­i­zon­tal sid­ing was bowed, which appeared to him to be caused by water com­ing off the roof. Due to a lack of gut­ter­ing on the com­plete back of the roof, water was run­ning off and form­ing ice on the ground. The ice had built up quite high and was push­ing the ply­wood or chip­board skirt­ing up under the sid­ing. Heather McCabe seemed to think the bowed sid­ing was relat­ed to sub­si­dence. She also raised the issue of her bowed roofline stat­ing she had been told that the block­ing-up of her mini-home would last for 10 years and since 10 years had not expired since the mini-home had been blocked up she thought the expla­na­tion for the bowed root­line must be some­thing oth­er than the block­ing.

75. Bri­an Roul­ston tes­ti­fied that on the issue of sink holes alleged­ly caused by sub­si­dence, from a geo­log­i­cal per­spec­tive, there is no rela­tion­ship between the pres­ence or absence of sink­holes and the min­ing car­ried on by Potash Cor­po­ra­tion of Saskatchewan Inc. Mr. Roul­ston stat­ed that in one CBC report regard­ing Beth Nor­rad’s prop­er­ty, she stood beside a depres­sion on her prop­er­ty that was referred to as a sink­hole many feet deep. When the ic:e melt­ed, the hole was in fact only an inch to an inch and a half deep. Mr. Roul­ston was famil­iar with the prop­er­ty, and stat­ed that a pre­vi­ous own­er had a cir­cu­lar flower bed five feet across at that loca­tion in which he grew annu­als (red salvia). The next own­er, Ms. Nor­rad, fenced the yard off and kept hors­es on the prop­er­ty. The like­ly expla­na­tion is that the hors­es beat the flower gar­den down, caus­ing the slight depres­sion. It was not a sink­hole. With respect to an alleged sink­hole in the back yard of the Beth Nor­rad prop­er­ty, Mr. Roul­ston, hav­ing been in the back yard on many occa­sions for bar­be­cues when the pre­vi­ous own­er lived there, sug­gests that the “sink­hole” may be a fire pit dug out by the orig­i­nal own­er.

76. Michael Hogan, Mark Frac­chia and Stew­art Brown also tes­ti­fied on behalf of the Respon­dent but pre­sent­ed lit­tle evi­dence as to the issue of sub­si­dence and its effect on the prop­er­ty owned by Heather and Myr­tle McCabe and Beth Nor­rad.

DECISION:

77.The issue to be decid­ed upon is has sub­si­dence result­ing from Potash Cor­po­ra­tion of Saskatchewan Inc. min­ing activ­i­ties in Penob­squis, New Brunswick caused actu­al dam­age to Com­plainan­t’s Heather and Myr­tle McCabe and Beth Nor­rad’s lands and premis­es.

78. The juris­dic­tion of the Min­ing Com­mis­sion­er to hear and deter­mine this mat­ter is set out in the Act as fol­lows:

13(1) Sub­ject to this Act and the reg­u­la­tions, it is the func­tion of the Min­ing com­mis­sion­er and the Min­ing com­mis­sion­er has exclu­sive juris­dic­tion to hear and deter­mine all ques­tions, dis­agree­ments, mat­ters or claims aris­ing out of the appli­ca­tion of this Act and the reg­u­la­tions includ­ing to hear and deter­mine any question,disagreement, mat­ter or claim.

(…)

(k) respect­ing dam­age to or inter­fer­ence with the use and enjoy­ment of prop­er­ty aris­ing out of activ­i­ty canied on under this Act and includ­ing the deter­mi­na­tion of com­pen­sa­tion;

19. The Act fur­ther pro­vides that the Com­mis­sion­er may make an order for com­pen­sa­tion where he has deter­mined there has been actu­al dam­age to or infer­ence with the use and enjoy­ment of prop­er­ty and has deter­mined the com­pen­sa­tion to be paid:

13(8) Where the Min­ing Com­mis­sion­er has deter­mined that there has been actu­al dam­age to or inter­fer­ence with the use and enjoy­ment of prop­er­ty and he has deter­mined the com­pen­sa­tion to be paid, he may order a prospec­tor, a hold­er or a min­er­al daim or min­ing lease or an oper­a­tor of a mine to pay the amount so deter­mined to the per­son aggriev­ed.

80. The lia­bil­i­ty of the hold­er of a Min­ing Lease (Potash Cor­po­ra­tion of Saskatchewan Inc.) is set out in the Min­ing Act at S. 75(2);

75(2). The hold­er of a Min­ing Lease is liable for actu­al dam­age to or inter­fer­ence with the use and enjoy­ment of prop­er­ty caused by him or any­one act­ing on his behalf in or on the Lease area.

There­fore, the Com­plainants Beth Nor­rad and Heather and Myr­tle McCabe must prove that they have suf­fered actu­al dam­age to or inter­fer­ence with the use and enjoy­ment of prop­er­ty and that Potash Cor­po­ra­tion of Saskatchewan Inc., or any­one act­ing on its behalf in or on the Lease area caused such actu­al dam­age to or inter­fer­ence with the use and enjoy­ment of prop­er­ty.

81. The bur­den of proof of dam­age and cau­sa­tion lies with the Com­plainants Beth Nor­rad and Heather and Myr­tle McCabe. The stan­dard of proof which the Com­plainants must dis­charge in order to suc­ceed is proof on a bal­ance of prob­a­bil­i­ties.

82. The issue of proof of cau­sa­tion must be addressed in regards to the Com­plainants claims. In the Tort Law Con­tract, these test for cau­sa­tion applied by the Court is whether, “but for” the neg­li­gence of the defen­dant, the plain­tiff would not have suf­fered the injury as point out in Clements v. Clements, 2012, Sec 32, (2012), S.C.J. No. 32 (Ql) at par 8.

(8) The test for show­ing cau­sa­tion is the “but for” test. The Plain­tiff must show on a bal­ance of prob­a­bil­i­ties that “but for” the defen­dan­t’s neg­li­gent act, the injury would not have occurred. Inher­ent in the phrase “but for” is the require­ment that the defen­dan­t’s neg­li­gence was nec­es­sary to bring about the injury- in oth­er words that the injury would not have occurred with­out the Defen­dan­t’s neg­li­gence. This is a fac­tu­al inquiry.

If the Plain­tiff does not estab­lish this on a bal­ance of prob­a­bil­i­ties, hav­ing regard to all the evi­dence, her action against the Defen­dant fails.

83. Beth Nor­rad, Heather McCabe and Myr­tle McCabe must show on a bal­ance of prob­a­bil­i­ties that “but for” the min­ing activ­i­ty of Potash Cor­po­ra­tion of Saskatchewan Inc. in or on the Lease area (Penob­squis) the Com­plainants would not have suf­fered actu­al dam­age to or inter­fer­ence with the use and enjoy­ment of their prop­er­ty.

84. There­fore, have the Com­plainants estab­lished any causal con­nec­tion between sub­si­dence result­ing from PCS’s min­ing activ­i­ty in Penob­squis and the dam­age they alleged their land and premis­es have suf­fered?

Beth Nor­rad and Heather and Myr­tle McCabe tes­ti­fied into evi­dence that there were a nlllll.ber of prob­lems with their prop­er­ties rang­ing from cracked foun­da­tions and walls to depres­sions and holes on their prop­er­ties. Heather McCabe com­plained of buck­ling walls, Unus­able rooms, sag­ging roof and mould. Beth Nor­rad com­plained her home was shak­ing and mov­ing. The ques­tion remains, is this tes­ti­mo­ny from the Com­plainants enough to prove a causal con­nec­tion between sub­si­dence result­ing froru. PCS ‘s min­ing activ­i­ty in Penob­squis and the dam­age the Com­plainants allege their lands and premis­es have suf­fered? This evi­dence only, as pre­sent­ed by the Com­plainants, does not show an infer­ence of cau­sa­tion that can be drawn.

85. The Com­plainants also relied on Mr. Mark Con­nell and Mr. Lawrence Wuest to prove a causal con­nec­tion between sub­si­dence result­ing from PCS’s min­ing activ­i­ties in Penosquis and the alleged dam­ages to their lands and premis­es. Nei­ther wit­ness had any exper­tise in the mea­sure­ment of sub­si­dence nor the assess­ment of its effects on sur­face infra­struc­ture there­fore both wit­ness­es were not qual­i­fied to present expert opin­ion evi­dence in the caus­es or effects of sub­si­dence and only Mr. Wuest offered any opin­ion on the sur­face effects of sub­si­dence in Penob­squis. How­ev­er, he did not present any con­clu­sion on whether sur­face struc­tures have in fact suf­fered dam­age due to sub­si­dence. Mark Con­nell did not offer any opin­ion on the sur­face effects of sub­si­dence in Penob­squis and only spoke in gen­er­al terms about how sub­si­dence occurs.

86. I now turn to the evi­dence pre­sent­ed to me at the Hear­ing by Doc­tor’s Adam and Anna Chrzanows­ki. The Com­plainants and their respec­tive Com­mit­tees as well as Coun­sel for the Respon­dent acknowl­edged and agreed that both Doc­tors were experts in sub­si­dence and both qual­i­fied to give expert opin­ion evi­dence in the field of sub­si­dence. Both Doc­tor’s spe­cial­ize in mon­i­tor­ing sub­si­dence and have been doing so over the Potash Cor­po­ra­tion of Saskatchewan Inc. mine site in Penob­squis, New Brunswick for over 20 years. They have the exper­tise required to prop­er­ly assess which set of cri­te­ria for pre­dict­ing sur­face dam­age based on the val­ues of sub­si­dence para­me­ters (tilt, strain, cur­va­ture) are most reli­able and applic­a­ble on the sur­face effects of sub­si­dence in Penob­squis.

87. The Doc­tor’s report entered into evi­dence con­clud­ed that the extent of mea­sured sub­si­dence in Penob­squis is such that all of the res­i­den­tial hous­es in the Penob­squis area are with­in the two low­est cat­e­gories of sur­face effects (Cat­e­go­ry 0, Nor­rad prop­er­ty, and Cat­e­go­ry I, McCabe prop­er­ty on a scalethat runs as high as Cat­e­go­ry V), the major­i­ty being with­in the low­est cat­e­go­ry. Dam­age to small res­i­den­tial struc­tures is not expect­ed where val­ues are below Cat­e­go­ry II. The Doc­tor’s expert report con­cludes that all alleged dam­age claimed by the Com­plainants Beth Nor­rad and Heather and Myr­tle McCabe must have been pro­duced by nat­ur­al fac­tors not relat­ed to sub­si­dence. There­fore, the Doc­tor’s con­clude that the observed sub­si­dence which has occurred in Penob­squis is not asso­ci­at­ed with any dam­age to small res­i­den­tial wood-frame struc­tures of the kind occu­pied by the Com­plainants Beth Nor­rad and Heather and Myr­tle McCabe.

88. The expert report and tes­ti­mo­ny of Doc­tor’s Adam and Aru­la Chrzanows­ki con­clud­ed that sub­si­dence of the degree expe­ri­enced in Penohsquis would not cause the dam­ages that the Com­plainants Beth Nor­rad and Heather and Myr­tle McCabe alleged. But for the min­ing activ­i­ty of the Respon­dent, the Com­plainants would still have expe­ri­enced the dam­age to their prop­er­ty about which they have com­plained.

89. There­fore my con­clu­sion is that the Com­plainants have failed to prove on the bal­ance of prob­a­bil­i­ties any causal con­nec­tion between the min­ing activ­i­ties of Potash Cor­po­ra­tion of Saskatchewan Inc. at Penob­squis and dam­ages caused to their Lands and Premis­es as they alleged because of sub­si­dence. My con­clu­sion based on all of the evi­dence pre­sent­ed before me at the Hear­ing is that the Com­plainants Beth Nor­rad and Heather and Myr­tle McCabe have failed to prove on the bal­ance of prob­a­bil­i­ties that their lands and premis­es have been dam­aged by the effects of sub­si­dence result­ing from Potash Cor­po­ra­tion of Saskatchewan Inc. min­ing activ­i­ties in Penob­squis, New Brunswick.

The Com­plaint is dis­missed with­out costs.

Dat­ed at Dal­housie, New Brunswick, this 31st day of Jan­u­ary, 2013.

RODERICK P. DUGUAY, ESQ.

Min­ing Com­mis­sion­er for the Province of N.B.