Case Summaries – Term II
Review
For a successful cause of action you need:
1. harm
2. so who seems to have behaved badly
3. Cnx b/w harm and action
· Failure to behave better® suffering of victim
· Causal cnx in fact
· Causal cnx in law: direct/immediate OR foreseeability of injury
· What makes the cnx too tenuous
4. Define/determine bad behaviour
· Cv: 1457 – standard of behaviour
®incorp notion of objectivity
· Cm: Objectivity for tort of negligence, but varies depending on tort
5. Whose bad behaviour?
· Need a clear, direct relationship b/w the people (Cm – duty of care)
· Or, more indir rel’shp in a special category: parent –ch –pf; emp’r-emp’ee-pf
6. Suffering
· What and who suffers
· How does she/it suffer
· Assessment of damages: theory & limits (nervous shock, econ loss, Cv/Cm)
· Tied to Q of just & approximate cnx b/w dt & pf
Nuisance
Miller v. Jackson –CM, UK
F: Millers bought house on new Council housing estate bordering long est’d cricket field. Balls fly into their yard and their neighbour’s yards, causing property damage and threatening occupants. Nothing cricket club can do to stop balls, has offered to do whatever it can to mitigate problem.I: Nuisance? Remedy?
H: Is nuisance (Denning dissenting). Damages awarded at £400.
R: Lane & Cumming-Bruce: nuisance exist b/c of foreseeable risk of injury to pf’s property and family. Accidents not preventable and pf’s can’t be expected to live behind closed shutters all summer
-no defence that pf’s came to nuisance
Denning: allows defence that pf came to nuisance. Knew what they were getting into.
-balancing of interests – community good vs private good
-chooses to protect the public good by preserving open spaces against development, preserving community good of cricket over private good of newcomer-homeowner
-awards money cricket club is willing to pay, but says no damages should be awarded
Cumming-Bruce & Denning – not appropriate case for injunction b/c of public-private balancing. Damages awarded at £400. Pf’s objection is of unreasonable force.
Lane – case cannot be remedied by damages. Grants injunction, but stays application for 12 months to allow club to find land elsewhere.
-Miller v. Jackson is a troubles de voisinage case in Cm law ® not squarely about negligence
-demonstrates that the choice to make fault the corner-stone of extra-K liability is chosen, not necessary
-Mrs. Miller’s perspective drowned out by massive impt’c of cricket in Eng culture
-expectation of entitlement on part of cricket club ® should be allowed to continue ® transformed into legal entitlement
-Denning: -explicitly discusses the context, English culture and tradition
-these types of external factors are rarely so explicitly brought out
Dichotomies of tort law clearly presented:
· Good/Bad
· Wrongdoing/Suffering Dt clearly presented as suffer in judgement
· Troublemaker/Victim
-pf clearly has law behind her legal claim; but this claim is overridden by community interests
Judge’s use of language
-Mrs Miller is “sensitive”, “in a state”, “highly sensitive”, “obsessive”, “hostile” ® would like to deprive son of wonderful experience of playing cricket
-She is portrayed as a troublemaker
-affront to cricket, worse b/c is using public funds to pursue action
Denning
-very forward looking judgement
-providing a basis for using law to protect envt/community interests against those of individ owners
-moving away from a vision of voisinage as a narrow rel’shp b/w two owners, thinking about it in terms of collective use of shared space
-interesting reversal of traditional views in tort: dt is not always horrible and unreasonable actor, pf not always helpless victim
Public/Private Dichotomy
-arguing that cricket club ¹ @ fault won’t help Mrs Miller b/c the club exists for the public good ® inserts idea of greater good into private law of obligations: a utilitarian justification for the rules of private law
-security of home characterized as private, while cricket char’zd as public interest ® can easily be flipped: low income housing = public interest, cricket = choice of game, private
-community tradition used to ¯ old interp of nuisance law
-interesting that a conservative, racist judge presents self as an innovator in the law & is celebrated as being v. progressive ® demonstrates need to Q judge’s ideas of subjective fairness
Nuisance generally
Factors:
· Determination of Liability
· Remedy
Tentative Aims:
· Make private law a tool for the public good
· E-K/Torts based on theory of risk rather than fault (recall: rejected in Lapierre)
-According to Conaghan and Mnasell, nuisance law has more to do w/ the problems created by industrialization & changing uses of land than w/ living together as neighbours
-rules are very uncertain, malleable
-remedy is tied to the notion of liability: the focus shifts to remedy v. fast
-explicit merger of Cm and Cv laws® rules are the same
Nuisance in Cv law: CCQ: 947®6,7®976®1457
-947 – defines ownership, limits it
-6&7 – duty of good faith, no excessive or unreasonable exercise of rights
-976 – articulated from perspective of pf ® social pc and equilibrium
Maxim: “use not your property in such a way as to harm your neighbour”
Steps in resolving problems of nuisance:
1. Determine liability (eg – is there a nuisance here?)
2. Remedy: Damages or injunction?
Test @ Stage 1.
· Pf must est substantial interference w/ enjoyment/use or comfort
1. pf must be reasonable in complaint ® Ct will determine a norm
· Property interfered w/ doesn’t need to be owned, just occupied
Dc. to Nuisance
· Have taken all reasonable/possible precautions ® can’t do it any better
®fails to ¯ liability, but may be taken into acct in deciding remedy
®pf’s perspective more impt.
· Operation is necessary for well-being of community
®diss of Gwynn in Drysdale
®Canada Paper
· Nature of neighbourhood
®must tolerate industrial activity in an industrial area
®Drysdale: should have argued that nature of St-Denis is changing, becoming commercial
®criticized for being v. classist
®even in industrial area, can bring an action against operation for making life unbearable
· We were there first! Pf knew what she was getting into (Miller v. Jackson)
®irrelevant
®benefiting from fact that nobody lived nearby/was bothered = luck
®should have bought nearby property to ensure that you were able to continue your annoying activity indefinitely
®since dt didn’t pay for guaranteed use, can’t claim it
®problem of lower property values: if you purchased at a low price b/c of nuisance, how can you complain?
®can, b/c otherwise would be allowing dt to determine your property values
Test Under Stage 2 – Remedy
· Injunction
o Stops nuisance from continuing
o Recall: nuisance involves a continuing rel’shp, whereas negligence is one-off
Damages
o Not necessarily equating $$ awarded w/ damages suffered ® no principle of restitutio in integrum
o Way to protect industrial interests
o Represents soth like a tax: cost of doing business ® how much do you have to pay to get people to stop complaining
Coast: will end u w/ uses of property being negotiated
-parties will work out how much each party’s desire to do what they want is worth ($$)
-judgement = way to force co. to negotiate
-the wealthy will largely be able to buy their way out
Drysdale v. Dugas -CVF: offensive smell produced by livery stable makes it impossible for Dugas to live in his house or to rent a property adjacent to the stable at full value. Adjacent property acquired after stable built
I: Does the operation of the stable constitute a nuisance under law? Is the appropriate remedy injunction or damages?
H: Nuisance exists, remedy is damages
R: Strong & Taschereau: Is definitely nuisance – S.C. does not examine
-a. 1053 – restrictions on ownership allowed. Abuse of right of ownership = fault
- amt of nuisance beyond what is considered reasonable after considering context and rel’shp of properties
-date of acquisition of title unimportant
-irrelevant that dt acted with all possible care and caution
-however, this care seems to be relevant in Strong’s decision to award damages and not an injunction
Gwynne: finding for pf would amount to making stables illegal in Mtl. Since stable is well kept up, there is no fault on pt of dt (Drysdale). Cts shouldn’t be making certain activities illegal.
Canada Paper Co. v. Brown -CV
F: noxious odours from paper plant prevent Brown from being able to use his property nearby (summer home)I: Nuisance? Remedy?
H: Is nuisance. Partial injunction granted – plant may not manufacture soda-sulphate at that site until some sci advance enables them to do so w/out producing noxious odours
R: Is nuisance:
®distinct from damages suffered by other residents \ ¹ public nuisance
®pf has right to reside on his property (when he sees fit) in comfort.
®damage is substantial and excessive & continuing
Injunction:
®balance interests: advtg of pf vs. inconvenience/disadvtg to dt and others
®per Anglin, J., making of soda-sulphate is not necessary to plant’s activities \ balance of convenience tilts towards pf
®Anglin – forcing pf to accept damages would be analogous to forcing him to accept a partial expropriation of his property
Appleby v. Erie Tobacco Co. -CM
F: odours from tobacco plant interfering w/ pf’s enjoyment of his neighbouring property. Tobacco co. moves into residential/ag. Area
I: Nuisance? Remedy?
H: Nuisance found. Injunction granted – its operation stayed for six months
R: odours severe enough to significantly interfere w/ pf’s use of his property
-reasonable use of dt’s property is irrelevant – pf’s right to enjoy his land is not mitigated by such reasonable use
-odours are unpreventable
-local standard breached ® even in an industrial area, new activity may create a new annoyance so substantial as to create a legal nuisance
-having to live with a ‘noxious and sickening odour’ cannot be compensated by a money payment. The annoyance is not susceptible to appreciation in monetary terms ® injunction
- These judgements were all taken at the turn of the Century and reflect a very conservative viewpt. : attempt to freeze society in place, protect the old ways of life, stop ‘progress’
-Damages in nuisance cases are problematic b/c nobody should have to suffer indefinitely for a simple monetary payment ® future damages = exprop.
Liability for the act of another
-how does law circumscribe liability? How are fault and liability related in this context? How are legal principles and social policies intertwined?
®Vicarious liability is a modification of the fault principle
To establish vicarious liability:
o Direct relationship b/w wrongdoer and dt
o Wrongdoer commits a fault that engages liability, while involved in a re’shp w/ dt
o \ Dt is vicariously liable
dt
o a (link b/w pf/victim and dt) will depend on b (link b/w wrongdoer and dt)
b a a
Another pf
Employer Liability Rule – Identical in Cv and Cm
- Irrebuttable presumption of liability: fault on part of employee leads to liability for employer ® no dc based on absence of fault (1463)
- Employer must act as a reasonable employer; a failure to act reasonably will incur direct liability (1457)
- BUT Employer still has arguments to avoid liability:
a. 1459 – parent liable for injury caused by act or fault of minor under auth
-can escape liability by proving ¹ @ fault w/ regard to custody, supervision, ed’n
-read in conj. w/ 1462 – act of minor must be objectively wrongful
a. 1463 – principle is liable for faults of servants/agents ® presumption of liability
- employer can claim from employee under 1463, but not usually very useful since emp’ee unlikely to have any money
-often bar to such recourse in collective agreements
-likely to fire employee
Governor and Co. of Gentleman Adventurers… v. Vaillancourt 1923 - CV
F: employee shot by drunken boss intent on disciplineI: Is the Co. responsible for the acts of the boss?
H: Yes
R: Wilson (shooter, boss) clearly thought that administering corporal punishment was pt of his duties, that he had the right to kill emp’ees, & that he was acting to ensure the pc and tranquillity of the area
-was an act of auth ® previous actions demo that he thought he could shoot at people to defend the Cie’s interests
-Cie can’t escape liability by saying that emp’ees action ¹ legal, provided it’s committed w/in course of his f’ns
Diss, Duff, Anglin: No. Act not done in the “execution of the emp’ees service or in the perf’c of the work for which he was employed” (a. 1053; 1054 CCLC)
-no authority to discipline emp’ees by corporal punishment
-just acts of a man in a drunken frenzy
-dt could not have anticipated acts
Rationale:
1. Benefits attached to employees wk & \ should bear burdens that come w/ employees actions
2. Representation –from pf’s perspective, employee is agent of employer ® are, for all intents and purposes, same person (MERGE)
3. Guarantee – means employer becomes guarantor, vis-à-vis pf
4. Compensation – if priority for E-K/Torts is compensation for injury suffered, employer in better position to spread the loss
5. Safety – employer will be prompted to ensure gtr safety vis-à-vis potential actions
-encourage accident prevention/greater precautions
6. Scope of employer’s responsibility
-if employers are held responsible, they will be more vigilant in overseeing the workplace
Regime:
-different ways in which courts limit/expand responsibility
-Three impt. Factors in determining liability of emp’r:
1. Another (autrui) must be an employee (principle of agents/servants is a bit broader) ® employment link is necessary
2. Fault – need wrongdoing on pt of emp’ee
3. Performance of duties – fault must occur in perf’c of duties/employment
-Third point creates the most difficulties
-To establish that s.o. is an employee:
o Usually set up against the possibility of so being an indep K’r
o Rational for holding emp’r liable crumbles in case of indep K’r: QC Asbestos
QC Asbestos v. Couture 1928 – CVQ. of whether so. is considered an employee or a K’r will turn largely on supervision & control
F: Accident caused by improper blasting during asbestos mining
-Couture claiming that he was an emp’ee \ should be compensated by emp’r for accident
-argument: not paying wkrs comp, emp’ees salaries, all tools, eqpt. Supplied by QC asbestos
-QC Asbestos claims he’s an indep K’r
I: Is Couture an emp’ee ® \ liability of QC Asbestos
H: NO. K’r
R: Couture worked indep from control & supervision of co.
-was responsible for meeting production quotas, penalized if he didn’t
-responsibilities of QC Asbestos laid out in K ® could have been decided otherwise
-Couture was victim of his own fault, not that of the Co’s
-lack of control over exact work ¹ K’r; ® profs & T.A.’s