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