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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 28 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

sources to support Taschereau J.’s terse civil law judgment. He elaborated that neither:

1. reasonable care and caution

      nor

2. social utility of the activity

      nor

3. coming to the nuisance

were adequate defences.

Gwynne J. dissented on the point of social utility, for policy reasons: “As we cannot pronounce it illegal to maintain a stable in the city of Montreal the appeal should be allowed.”

Remedies for nuisance/troubles de voisinage:

injunction: This can deal with present or potential future injury.

prohibitory injunction: i.e., “Stop what you’re doing.”

mandatory injunction: requires a positive step to be taken.

interlocutory injunction: This is an emergency, interim injunction.

damages: These can be granted in addtion to or instead of an injunction.

If damages are awarded in addition to an injunction, they will only deal with past injuries.

If damages are awarded instead of an injunction, they will deal with the past and the future.

Courts are reluctant to award damages instead of an injunction: this is seen as tantamount to expropriation.

abatement: This do-it-yourself remedy has fallen into disfavour. It is allowed only in emergencies.

If you take the law into your own hands, you can never get damages.

Canada Paper Co. v. Brown, (1922) 63 S.C.R. 243. (CB1p428)

Jurisdiction

Quebec

Facts

Canada Paper Co. was a large factory which employed many people in the town of Windsor Mills. Its manufacturing of soda sulphate pulp caused fumes and odours which interfered with Brown’s enjoyment of his property.

Issues

Should the court award damages rather than an injunction in view of the economic importance of the factory?

Holding

No.

Ratio

Although the factory was important, soda sulphate was just a small part of its business and could be moved elsewhere or simply bought.

Comments

The interests of the individual came before community interests in this case (although community interests were also considered).

Is liability for nuisance based on fault or risk (i.e., strict liability)?

Fault

Risk

Maliciousness is taken into account (in common law); bad faith (in civil law).

The social utility of the conduct matters.

The character of the neighbourhood matters in determining the reasonableness of interference (common law) or the normality of annoyance (civil law).

One could argue that a reasonable person doesn’t cause unreasonable interference (or abnormal annoyance)!

In both nuisance and troubles de voisinage, the basis of liability has nothing to do with the defendant’s conduct—the focus is on the injury caused, not the nature of the behaviour.

The fact that the defendant took precautions is irrelevant (Drysdale, Appleby)

In civil law, this is actively debated.

14/11/02

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