Law 430

Torts

Professor U. Ogbogu

Table of Contents

Introduction

Sources of Tort Law

Mind of a Tortfeasor

Nuisance

Appleby v Erie Tobacco

Rogers v Elliot (1888)

Bradford v Pickles

Hollywood Silver Foxes Farm Ltd v Emmett

Fontainebleau v 4525 Inc (1959)

Bryant v Lefevre

Prah v MarettiX !!!DON’T APPLY!!!

Critelli v Lincoln TrustXX !!!DO NOT APPLY!!!

Hunter v Canary Wharf

Shuttleworth v Vancouver General Hospital

Laws v Florinplace

Doctrinal rules underlying the law of nuisance

Policy/Doctrine Debate

Miller v Jackson

Bamford v Turnley

Kennaway v Thompson

Defence of Statutory Authority

Tock v St. John’s Metropolitan Area Board

Antrim Truck Centre Ltd v Ontario (Transportation)

Remedy

Shelfer v City of London Electrical Lighting Co

Canada Paper Co v Brown

Cf Black v Canadian Copper Co

Reconciling Brown and Black

Spur v Webb !!!DO NOT APPLY!!!

Spur Feeding Co

Nuisance highlights

Intentional Torts

Allan v Mount Sinai Hospital (ONSC 1980)

Malette v Shulman (ONCA 1990)

Norberg v Wynrib

Consent vs Informed Consent

Reibl v Hughes

Consent and Capacity

H(B) v Alberta

Self Defence and Provocation

Wackett v Calder

Defence of third person

Gambriell v Caparelli

Defense of Property

Discipline of Children

Trespass to Land

Turner v Thorne

Intentional Interference with Chattels

Pierson v Post

Penfolds Wines Prop. Ltd c Elliott (HCA, 1946)

Practice Questions

Strict Liability

The Rule in Rylands and Fletcher

Read v J Lyons & Co Ltd

Summary

Vicarious Liability

Yewens v Noakes

Montreal v Montreal Locomotive Works Ltd

Lister v Romford Ice and Cold Storage

London Drugs Ltd v Kuehne & Nagle

Salmond on Torts

Morris v CW Martin & Sons Ltd

BC Ferry Corp v Invicta Security Service Corp

Vicarious Liability Summary

Bazley v Curry (SCC 1999)

Jacobi v Griffiths

Lester v Hesley Hall (2001, HL)

Defamation

Defences

Hay v Platinum Equities Inc

Globe & Mail v Boland

Vander Zalm v Times Publishers

WIC Radio v Simpson

Awan v Levant

Introduction

20 September

  • Tort law governs wrongdoing
  • A tort is a wrong done by someone, to someone else
  • Tort law doesn’t care about every wrong
  • Unlawful interference with a person’s rights
  • Right to what?
  • Personal/bodily integrity
  • Property
  • Good reputation
  • Privacy
  • Not all torts have been invented yet
  • Categories of torts are not closed
  • A judge/the gov’t can establish new torts
  • Tort law is the body of legal rules and principles that govern the civil consequences of such interference
  • Any time a right is interfered with there can be more that one consequence that flows from that action
  • Wrongdoing in a civil/private context if governed by tort law
  • Some private relations could result in criminal consequences
  • Tort law is not criminal
  • Parties to a tort law actions
  • Two private individuals
  • Groups of individuals
  • One person against an institution, example companies, corporations, a collective not represented by an individual
  • What ties them together is that it’s about private relations
  • Government can also be involved in torts, in its private dealings
  • Concerning a matter that tort law governs
  • The subject matter should be a tort
  • Tort law governs the protection of a right (from interference that causes injury or damage)
  • Tort litigation is a matter between the parties
  • The same action can give rise to both consequences (criminal or tort)
  • The criminal law seeks to punish
  • Offender guilty, they are punished
  • Tort law seeks primarily to compensate
  • Victim is compensated for injury or damage suffered as a result of tortfeasor’s conduct
  • It does not matter that the conduct is also criminal
  • Very rarely get compensated in criminal law. They get justice instead.
  • Burden of proof
  • Criminal law: case has to be proven beyond reasonable doubt
  • Tort law: Looking for a balance of probabilities
  • Need to convince the judge that it probably happened vs other party’s story

Sources of Tort Law

  • Common law: primarily judge made case law
  • NB to sift and sort through rules - read and extract facts from cases
  • Quebec: codified
  • Developed over time; very flexible
  • Subject to the rules of precedent
  • Shared tradition: feature and rules apply to many countries
  • Shared within and beyond the commonwealth
  • Occasionally legislation comes into play as well
  • Statutesthat change common law: these supersede case law
  • Matter of reflection: tort law is restorative, to a degree. It’s about compensation.
  • Most cases are judge alone in Canada

Mind of a Tortfeasor

  • Intention and/or Negligence = Fault
  • 2 kinds of mind that a tortfeasor can have
  • ex: battery is an intentional tort
  • No fault on strict liability – this includes vicarious liability
  • Consider circumstances

Nuisance

30 September

  • Have to prove grounds for nuisance (grounds for liability)
  • Nuisance: unlawful interference with a right to the use and enjoyment of land
  • NB: the interference must be unlawful
  • Must have a right to use said land
  • Private and public nuisance – here we are looking at private nuisance
  • 3 torts to protect interest in land
  • Trespass: the direct and physical interference with the plaintiff’s right to possession in land
  • Need not be a neighbour
  • Nuisance: don’t need to be on property – for trespass you do
  • Defendant must be physically present on the land
  • Rule in Rylands v Fletcher: the escape of something likely to do mischief arising from a neighbour’s non-natural use property
  • Vs. nuisance which has to be substantial and ongoing
  • Ex/ well, water escapes onto another’s (π) property. Or tigers escape.
  • RvF results in strict liability- intention not NB
  • Negligence: damage to land caused by a failure to take care
  • None of these things are considered nuisance
  • Public Nuisance: nuisance against the general public
  • ...not really a tort
  • Unlawful act endangering the lives, safety, health, property or comfort of the public
  • Obstruction of the public in the exercise or enjoyment of any right that is common to the public
  • Not only a tort, but also a crime
  • Two categories:
  • Interference with use of public property, ie obstructing a public highway or park access
  • Widespread inference with use and enjoyment of private land (multiple private nuisances)
  • (Private) nuisance versus trespass
  • Nuisance interferes with land owner’s ability to enjoy their property
  • Trespass: have to physically be on the π’s property
  • Issues around sights
  • One-time deal, probably not going to succeed with a nuisance claim
  • Interference has to be substantial, which includes it having being ongoing

Appleby v Erie Tobacco

  • Preponderance of evidence is on Appleby’s side (balance of probabilities)
  • ∆ claim re: latest technology – only option is to shut down business
  • NB here: should the judge consider other options like economic and social goals?
  • Jobs, wages, etc.
  • high stakes
  • Is this a nuisance?
  • Materiality: nuisance must be significant, not minor or passing. Must materially interfere with landowner’s individual comfort
  • “more than fanciful”
  • Local standard: ask the question: can we make any allowances for the type or nature of the neighbourhood? Is it out of the character of the neighbourhood?
  • Like if it was a residential neighbourhood or more industrial
  • Qualification of (2): local standard subject to new nuisance
  • while local standards are NB, they are not determinative
  • new interferences (odours, noise, etc) can cause a nuisance
  • not the basis for saying yes or no
  • Remedy – the usual remedy is an injunction, as requested in this case
  • Damages alone are insufficient – continuing nature of nuisance. They can also be viewed as a mere license fee, ex/ cost of committing and continuing the nuisance
  • In Appleby, injunction in effect 6 months from decision date – doesn’t really work in client’s favour
  • Remember though, business has economic value and has impact on community
  • Broader implications of court decisions are also important to judges
  • From the perspective of doctrine, these values shouldn’t matter
  • Appleby taught us:
  • Nuisance causes a significant material discomfort that renders plaintiff’s land less fit for the ordinary purposes of life
  • Threshold having regard to local standards
  • This is not a trump card
  • Why are local standards NB?
  • Courts considered social costs associated with shutting down factory

Rogers v Elliot (1888)

  • Church bell, convulsion
  • Deeper look into grounds for liability
  • Idea about how nuisance law protects rights
  • In determining whether interference is material, do we look at subjective of objective factors?
  • Outcome here: no nuisance
  • Have to consider the reasonableness in the circumstances
  • Existence of noise or its effect on others is not enough
  • Has to effect the ordinary, average person
  • Have to show that it would effect the ordinary, average person on balance of probabilities
  • Recall the definition of the OAP from the case
  • Behaves like most people
  • The reasonable person is fictitious

6 October

  • Recap: for interference we need it to be material and also objectively harmful (from the OAP)
  • Local standard also NB but not determinative
  • Tort law is concerned only with the rights of parties, not the furtherance of a public good
  • Questions of morality are irrelevant
  • What about malice?

Bradford v Pickles

  • Facts: water flows from defendant’s property into a spring on the town’s property
  • ∆ sinks shaft into the ground to cut off water supply to the town
  • Allegedly, the defendant told the city to either buy his land or pay for the water
  • The defendant was acting within their rights, and the town does not have grounds for nuisance on the basis of malice alone - remember that their actual rights weren’t interfered with (no other nuisance)
  • NO TORT
  • So, malice (also intention) doesn’t come into play when considering whether a tort has been committed

Hollywood Silver Foxes Farm Ltd v Emmett

  • Breeding silver foxes - need quiet or they’ll kill their young
  • Neighbour sends his son to the property line to shoot a gun and make noise
  • This is an action clearly motivated by malice
  • This case differs from Bradford v Pickles in that the nuisance is material
  • Bradford v Pickles doesn’t apply here
  • CA ruled that motive and malice can in fact be considered
  • In reconciliation:
  • Bradford -no nuisance, regardless of malice
  • Hollywood - there is a material interference causing nuisance. Would have likely succeeded without malice; thisjust strengthens the case
  • Court pursued a moral inquiry here
  • Remember, this nuisance interferes with plaintiff’s enjoyment of land, so case may have won without malice
  • Some injuries are not compensable in tort law, because they don’t involve injury to a right
  • Only injuries are compensable under tort law

Fontainebleau v 4525 Inc (1959)

  • Appellant/Fontain planned additions to hotel, respondent said it would block too much light and shadow beach on property
  • MALICE here because competing hotels
  • From the lower court: “this ruling is... based solely on the proposition that no one has a right to use his property to the injury of another”
  • CA disagreed: lawful rightsshould be protected.
  • “No legal right to free flow of light and air from adjoining land”
  • Nonfeasance: failure to confer a benefit
  • Tort of nuisance cannot create a right where property law says there’s none
  • Nuisance claims based on material interference with use and enjoyment of land
  • this must pertain to an actual right(something plaintiff owns or can legally exclude others from)

Misfeasance: Appleby, Hollywood

Nonfeasance: Bradford, Fontainebleau

Bryant v Lefevre

  • P and D had adjoining houses. D made additions to house that caused P’s chimney to smoke because the air supply to the chimney was cut off during the additions
  • Appeal: yes it’s a nuisance, but not of the defendant’s doing... they were acting within their rights
  • Π the author of their own misfortune - basically, stop lighting fires.
  • No right to use the defendant’s land for flow of air
  • Aldred: “For prospect which is a matter of delight and not of necessity, no action lies for stopping thereof...the law does not give an action for...things of delight”

Legal process and public policy

  • Courts may resort to policy where tort law principles seen unpalatable

Prah v MarettiX !!!DON’T APPLY!!!

  • Defendant threatens to build a house on his property that would deprive the plaintiff of sunlight needed to run his solar powered house
  • Should not succeed - but it was ruled a nuisance
  • Old ideas vs. new ideas
  • Reasoning: The rule that there is no right to sunlight was generally recognized at law for policy reasons that don’t apply anymore
  • Society has changed, so the law of nuisance should too
  • Completely different mode of reasoning here. Social policy is taken into account
  • Misfeasance vs. nonfeasance appears not deemed relevant
  • Judge views his role as balancing interests and making a policy decision
  • The law of nuisance needs to evolve with changing social conceptions of the public welfare
  • Balance on the weight of legal or judicial authority
  • Here, in favour of cases like Fontainebleau
  • limited application for Prah
  • Better off applying the law in an exam
  • Remember from last class: bad law/one-offs happen – Judges sometimes decide against what we know
  • Do not apply Prah v Maretti
  • More on Prah
  • Defendant’s addition approved by municipal council – wouldn’t municipal bylaws be a good starting point here?
  • But, the bylaws don’t support the judge’s decision - doctrine always comes first

Critelli v Lincoln TrustXX !!!DO NOT APPLY!!!

  • Defendant increased the height of their building - snow accumulated on the plaintiff’s roof as a result
  • Π had to reinforce roof [damages, not injunction sought here - does this influence the judge’s thinking?]
  • Ruling: plaintiff was there first
  • Defendant knew of plaintiff, so should have taken care to prevent damages or nuisance to π
  • But, no violation of legal rights; can the judge rule by ‘who’s there first’?
  • Harm to a right- no right to a snow-free roof (free passage of air)
  • Judges just said whoever is there first wins
  • This is wrong
  • No consideration of nonfeasance vs misfeasance
  • Bad law, don’t apply [contested]

Hunter v Canary Wharf

  • Defendants erected a skyscraper that blocked television transmission to the plaintiff’s homes
  • Ruling (Goff): Nuisance generally arises from something emanating from the defendant’s land, such as noise, dirt, fumes
  • Ejusdum generis (sp)
  • Sometimes sights, if offensive to neighbours, will constitute an actionable nuisance [Laws v Florinplace], but this is rare.
  • Ruled no nuisance
  • What happens if the interference takes the form of conduct which diminishes or reduces the value of the plaintiff’s property? (See Shuttleworth)

Shuttleworth v Vancouver General Hospital

  • ∆ hospital builds infectious diseases ward, neighbour (π) complained of nuisance
  • Sought a quia timet injunction (because of fear)
  • Ask before facts are established
  • Must show a high probability of injury, almost amounting to certainty
  • From actual and real danger! High bar for QT injunction
  • Π’s fears incl: crying children, emotional burden on peeping guests, danger of infection, loss of property value
  • Rules no injunction (clearly...)
  • Crying children; hasn’t happened yet – wait and see
  • Stress from emotion - stupid claim.
  • Infection - no expert evidence to support this claim
  • Property value: realtor said this may actually happen
  • But, deprivation of a benefit does not entitle the π to recovery for its loss
  • “the mere fact of depreciation cannot be found an action”
  • Ogbogu agrees, no injunction

Laws v Florinplace

  • Defendant operated pornography shop in a residential area, plaintiffs, all neighbours, sue for injunction to restrain the shop from operating
  • They argue shop is a nuisance because it’s offensive and unreasonable, and the business would attract undesirable clients, and put neighbourhood girls in danger
  • RE: argument 1: nuisance can arise where defendant is using property in a manner that offends the reasonable susceptibilities of ordinary people, and where such use is apparent to residents/visitors
  • Good application of doctrine
  • Argument 2: even if 80% of patrons are normal, at least 20% will be deviants: high risk
  • Do not apply this point, it is garbage. Bad law.
  • On doctrine:
  • Hunter v Canary Wharf: sight, if offensive, will constitute a nuisance, but rarely
  • Goff
  • Local standard as per Appleby?
  • On facts:
  • Perhaps we can distinguish between an isolation ward and porn shop
  • Perhaps no court is going to sit idly by and allow ordinary folks to put up with a business the judge him/herself would not put up with
  • Perhaps a person of ordinary sensibility would objectively put up with an isolation ward and not a hard-core porn shop in a residential neighbourhood

Doctrinal rules underlying the law of nuisance

  • Materiality (Appleby)
  • Local standards (Appleby)
  • Ordinary, average person (Rogers)
  • Misfeasance, not nonfeasance
  • Lots of cases (Fontainebleau, Bryant, Aldred’s case, Shuttleworth)
  • Morality/Malice irrelevant (Bradford)
  • Compare HSF- weight of judicial opinion (WJO) favours Bradford
  • Malice may strengthenπ’s case, not determinative
  • Courts occasionally diverge from doctrine to allow recovery on public policy/social good grounds
  • Prah
  • Don’t apply these laws
  • Or depart from doctrine for reasons that cannot be consistently applied on other cases
  • Critelli – who was there first? Don’t apply!
  • Interferences that will attract liability in nuisance are typically emanation – noise, fumes, noxious smells, etc.
  • Hunter
  • Liability based on offensive sights is rare, but possible (Laws)
  • Grounds/arguments rejected by the courts (Shuttleworth)
  • Unsubstantiated fear without actual injury
  • Emotional disturbances without actual injury
  • The children (NO)
  • Diminution of property value

Policy/Doctrine Debate

  • Legal realism – Holmes
  • Legal doctrine does not matter because it is often contradictory
  • For every case that says X, you can find one that says Y
  • Not every case has an obvious predetermined answer
  • If we accept that the law does not have a single correct answer, we have to accept that each case is a product of policy
  • Basically, everything is policy by this view
  • Legal maxims may reflect law’s aspirations regarding rights
  • Fancy legal maxims as “benevolent yearnings”
  • Judgements are full of policy questions disguised as legal reasoning
  • What policy considerations did Holmes prefer?
  • Measure gain from defendant’s conduct against the loss incurred by the plaintiff
  • Does the gain from the def’s conduct outweigh the loss?
  • If def’s conduct is worth more to society than the injury to the plaintiff, no recovery
  • If opposite, then recovery
  • WWHD? Some cases we’ve studied may have different outcomes (like Appleby)

Miller v Jackson