University of Alberta Faculty of Law Blog

If a Bruce Cockburn Falls in a Forest

A fellow blogger has been on my case about posting something interesting.  However, essay season is upon us, so HERE IS A LITTLE EXCERPT FROM A FIRST DRAFT; I cannot speak to the grammar or the veracity of what is contained herein, nor can I assure you that it is interesting.  N.B. If this post seems somewhat reminiscent S. Elgie's brilliant article, it is because my paper will go on to criticize it (hopefully with some merit).

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To understand the ends at which an environmental tort judgement is aimed, one must first understand the function of ascribing a monetary value to the harm that a tortfeasor has occasioned. In principle, a judgement functions to place the full social cost on the entity that caused the damages in question.¹ Applied in an environmental context, this is known as the polluter pays principle. Indeed, as ____ Ashford asserts, the “polluter pays principle incorporates a moral judgement by placing responsiblity for cessation of pollution (and for any necessary clean-up) on the polluter.”² A judgement, in effect, internalizes an economic agent's social costs.

The concept of a social costs originates with the economist Arthur Pigou. Although his classic work Wealth and Welfare identified the differences between social and private costs – the former being borne by society and the latter being borne monetarily by a given economic agent – Pigou did not extend his reasoning to tort law; instead, he confined his reasoning to taxation.³ R. Posner, however, notes there Pigou's idea, namely a Pigouvian tax, forms the direct antecedent to the modern economic approach to tort law.⁴

As with the SCC's decision in BC v. Canfor, the economic goal of tort law is to correct for these market externalities. Generally, an externality is a social cost that is not captured in a market transaction.⁵ Stagl has written that “[m]any of the thing individuals care about [...] are not traded in markets [...] missing markets are very common in regard to the services that the environment provides to economic activity.”⁶ In the BC v. Canfor decision, for example, some of the costs not captured by market prices would include the biodiversity lost as trees are cut, the trees' function as a carbon sink, and diminution in the quality of the watershed. Often times, aspects of economic exchanges are not priced and captured within the market – these are a market failures.⁷ As Nobel Laureate Joseph Stiglitz notes, market economies and centrally planned economies have both historically had great trouble dealing with these externalities.⁸

How, then, does a Pigouvian tax (namely, in this case, a tort judgement) function to correct a market externality? Where a cost is not captured in a market, it has a non-market valuation: there exists a latent curve that perhaps “can be teased out through other means.”⁹ As the graph above demonstrates, there is a gap between marginal private cost (MPC) and marginal social cost (MSC). This is known as a marginal external cost – the price of an externality.¹⁰ In the absence of a price for environmentally deleterious behavior, the market will yield an output were the supply and demand curves intersect. However, once a tort suit or tax is in place, the cost of environmental degradation now exists for the producer, shifting the marginal private cost (MPC) up to the marginal social cost (MSC), at least if the tax or tort suit were priced correctly such that the cost to the producer accurately reflects the true social cost of the activity – this was the goal of the majority in BC v. Canfor. Indeed, accurately gauging the marginal external cost of an environmentally deleterious act is the mark at which an economist would aim.¹¹

1Calabresi, 505

2Ashford, 175

3Landes and Posner, p. 6

4Landes and Posner, p. 6

5Ashford 130

6Stagl, p.322

7Davidson 100

8Stiglitz, 517

9hanemann, 38

10Stagl, p. 329

11Stagl, 329

One Man's Ceiling Is Another Man's Floor

Greetings,

Moin Yahya has invited me to blog this year. To introduce myself, I am Graham Purse, a second year law student with a background in music, history, economics, travel, and photography.

As a first article, I have chosen to observe and comment on noise pollution.

In 2005, the Supreme Court of Canada ruled on a dispute in the city of Montreal regarding a strip club's right to broadcast music and commentary over a loudspeaker in the main entrance of the club (Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62). The loudspeaker would hopefully induce passersby to choose that particular strip club over others in the area.

The case is of immediate interest because the SCC was tasked, in part, with defining what constitutes noise and noise pollution. After canvassing a history of the impugned bylaw, the majority found that the objective had been to “preserve the peaceful nature of public spaces.” In attempting to ascertain the intentions of the writers of the bylaw, the majority wrote that, “the main characteristic of disruptive noise is that it stands out from environmental noise. Disruptive noise is noise that interferes with the peaceful use of urban spaces, and is distinguished from noise in the literal sense.” I urge you to read paragraph thirty-three (and possibly the entire case, time permitting); the majority's classification schema for different kinds of noise would hardly pass muster in even an introductory logic class (which is not to say that the dissent was any more lucid). Unfortunately, the case has not informed many other cases on noise pollution, so it remains to be seen whether another court will hammer out the ambiguities of defining noise and noise pollution.

The Oxford English Dictionary is not too helpful either:

Noise

1.

a. Sound; the aggregate of sounds occurring in a particular place or at a particular time; (also) disturbance caused by sounds, discordancy, (in early use) esp. disturbance made by voices; shouting, outcry; also in {dag}to keep noise (obs.).

b. Any of various kinds of music characterized by use of dissonance or inharmonious noise, esp. loud distorted guitar, amplifier noise, feedback, etc. Freq. attrib. Cf. noise-rock n. at Compounds 2.

2. As a count noun.

a. A sound that is characteristic of a person, animal, or thing. Also fig.
b. A sound of any kind, esp. a loud, harsh, or unpleasant one.

Noise Pollution

n. harmful or annoying noise in the environment.

Consider, for instance, definition 1.b. – Jimi Hendrix's music (which employed dissonance through the frequent use of the E7#9 chord, a chord that implies both a major and minor third) and Igor Stravinsky's music (which famously, in Petrushka, imposed a C major triad over an F# triad in first inversion) could be considered noise by this definition. Definition 2.b., too, is delightfully ambiguous; to borrow from the French, chacun à son goût. At least the definition of noise pollution captures the essence of the physical limits of sound that a person can endure – an annoying externality indeed.

Tom Tietenberg has written that “one of the characteristics of an efficient property-rights structure is exclusivity. [...] This is violated in practice leading potentially to externalities and market failure.” In practice, when people live in close proximity, noises escaping from their property (whether real or chattel) will inevitably impose externalities on others; each person's subjective taste at a given moment in time will determine to an extent whether that externality is positive or negative. What, then, can be done to objectively regulate an almost purely subjective taste? (Certainly, noise is not purely a subjective taste because noise beyond a certain sound pressure causes pain, as suggested in the Oxford English Dictionary's definition of noise pollution)

One might argue that Ronald Coase could come to the rescue. But, I offer this real-life example of the occasional impracticality of Coasean bargaining: while camping in Yellowstone this summer, my wife and I were woken at 6:00 am by a Harley rider's bike. When I walked into the washroom to brush my teeth, the gentleman inside did not say good morning; instead, he said, “Did you hear that damn Harley driver?” Coasean bargaining can be impractical: consider the Harley driver negotiating a fee with each camper the night before his early-morning ride – there are simply too many economic agents involved, particularly with sounds.

Moreover, we can't truly measure the utility that the Harley rider derives in 'utils' (now, an almost useless term); only ranking of preferences (namely, ordinal utility) is possible. Thus, we cannot say that the Harley driver reaps 400 utils of benefit whilst the campers suffer 500 utils of disutility. Even if numbers could be ascribed to utility, the scholarly criticism of utilitarianism is vast – after all, what is 'the good'? For example, in one of Dan Dennett's brilliant books, Darwin's Dangerous Idea, Dennett suggests that the Three Mile Island incident brought suffering to some while adding fuel to the anti-nuclear movement. Yet, to me at least, in the Harley example above, the aggregate dissatisfaction of 400 campers eclipses the Harley rider's right to enjoy his motorcycle and its sound (which, interestingly, Harley has sought to trademark) – but that metric is entirely a product of my own subjective opinion.

As with a Harley and, say, an errant strain of Nusrat Fateh Ali Khan emanating from a boombox (the former bothers me while the latter pleases me – albeit only at certain times), David Hume has written that, "a thousand different sentiments, excited by the same object, are all right: Because no sentiment represents what is really in the object. It only marks a certain conformity or relation between the object and the organs or faculties of the mind. [...] One person may even perceive deformity, where another is sensible of beauty; and every individual ought to acquiesce to his own sentiment, without pretending to regulate those of others." Indeed, I would argue that tastes are so varied that one man's More-ish music- or motorcycle-induced utopia could easily be another man's Metropolesque dystopia.

Is there any point to all of this? Perhaps. First, the SCC majority wisely found that it would be impractical to use decibel level as the sole criterion by which noise pollution could be determined. Citing Chamberland J. A., they wrote that, “[I]t would take a forest of sound level meters and an army of qualified technicians lying in waiting to monitor the noise produced by sound equipment at different times of day and night, everywhere in greater Montréal.” Second, we are still left without a clear definition of what constitutes noise and noise pollution.

Finally, in a world with a growing population (albeit at a decreasing rate of growth), where one man's ceiling is increasingly another man's floor, and given that people are leaving their bucolic lives for the Pumpkin Spice Frappucinos of the cities (increasing, in some instances, population densities), it is likely that noise pollution, whatever it is, will continue to exist despite legislators and judges' best efforts.

The Highway that made Just v. BC

The Sea-to-Sky Highway (linking Vancouver to Whistler) is closed for several days after (surprise, surprise) a rockslide.  Torts afficionados and my own torts students (note the subtle distinction) will know that a rockslide on the selfsame stretch of road gave rise to Just v. British Columbia, [1989] 2 S.C.R. 1228.  (It appears that the monitoring regime in Just (despite having been thought insufficient by the Court in Just) has largely remained in-place, although the British Columbia government is now reported to be about to adopt enhanced monitoring techniques.

In the meantime, those of you planning on attending the 2010 Winter Olympics might, as a precaution, book a motel room in Lillooet.  (If you don't know why I'm suggesting this, either look at a map or ask someone from the West Coast).

More on Crown Liability in Tort

Tapping the same Crown-liability vein as recent comments (here and here) on what turned out to be an extremely disappointing effort from the Supreme Court of Canada in Holland v. Saskatchewan (why'd they even bother granting leave?), a piece that I co-wrote with Shannon Brochu (LL.B., 2007) on the British Columbia Court of Appeal's curious decision in James v. British Columbia is about to appear in the Alberta Law Review (45:4).

The opening paragraphs read (footnotes omitted):

Holland v. Government of Saskatchewan

The Supreme Court of Canada has rendered its decision in Holland v A.G. of Saskatchewan 2008 SCC 42.

In brief, the government was sued for intimidation, misfeasance in a public office, and negligence by elk farmers. The government had enacted a program which was later declared to be invalid. The program had penalized some farmers who refused to comply with the conditions imposed by the scheme. Despite the judgment declaring the scheme invalid and implying that the farmers should no longer be penalized, the government did not remedy the situation. Hence the law suits.

The only claim in issue before the Supreme Court was the negligence one. The Court of Appeal had struck out the negligence claims on the basis of policy. The Supreme Court agreed with most of the Court of Appeals' judgment but allowed one negligence claim to proceed; a claim based on the government's refusal to implement the judicial decree.

The Holland judgment is very unclear, and frankly disappointing.

For starters, one might diminish its importance by arguing that the SCC merely decided that when taking a "generous view" of one paragraph in the statement of claim (if it was "read broadly") the Court could not say that the claim could not succeed at trial. Thus it allowed this claim to proceed. The SCC pointedly would not comment "on whether the evidence and the applicable law will in fact establish a claim for negligence.. at the time of trial." As we know, however, many important judgments which contribute to our understanding of the law have been made within the context of motions to strike. The court could have, had it wished, expanded greatly on the difficult issues of public tort liability which this case raises. It chose not to, for whatever reason.

There are however certain statements in this case which are important.

First the court reaffirmed Saskatchewan Wheat Pool. According to the Court, there is no tort claim "against the government authority for negligent beach of statutory duty by acting outside or contrary to the law." The Court stated: "The law to date has not recognized an action for negligent breach of statutory duty. It is well established that mere brief of statutory duty does not constitute negligence". And further: "The proper remedy for breach of statutory duty by a public authority, traditionally viewed, is judicial review for invalidity."

These statements in my view reaffirm Canadian law's refusal to convert a breach of a statutory duty into a private law remedy.

Second the court seemed to acknowledge that "a legislative and regulatory matrix" can establish proximity between private parties and a statutory authority, although the court again pointedly decided not to make that decision on the facts of this case. I do not know what the court meant by the words "legislative and regulatory matrix". I have argued that statutory provisions cannot create proximity although they can result in relationships which the courts can recognize as proximate relationships. I am heartened to see that the court did not talk about statutory provisions creating proximity and perhaps the word "matrix" and not "provisions" is supportive of my argument. That might be wishful thinking of course.

Third, the court did recognize that a claim in negligence can be brought for the failure of government "to implement an adjudicative decree". This is probably the most puzzling part of the judgment. The court characterizes this as a negligence claim. But surely there was no negligence here; there was an intentional decision of the government not to implement a judicial decree. I would have thought that this would be remedied best by an administrative law remedy (mandamus or mandatory injunction) although I concede that I am not an administrative law lawyer. Alternately it could be a claim for misfeasance in a public office, which is already part of this action. How this failure to obey a judicial decree will be rationalized and argued as a negligence claim will be interesting to see. The court did not deal with proximity or policy in relation to this negligence failure. This will have to be done.

Fourth, the court reverted back to the policy- operational dichotomy (which I thought we had almost dispensed with, by focusing on proximity instead). The failure to implement a judicial decision was seen as a matter of operations and not policy, somewhat similar to the City of Kamloops decision. The question however is: operations in relation to what? The Court seems to be saying that there is a tort ( negligence law) duty to implement a judicial decree ( without really explaining the source of this tort duty) and then arguing that the failure to execute the duty is a matter of operations and not policy. It seems to me that once the court defines the duty so specifically, ie implement the judicial decree and the government does not do so,  the policy/ operational dichotomy has no useful role to play.

There we have it. It’ll be interesting to see what the counsel and the next trial judge make of it.

WIC Radio Ltd. v. Simpson: the "Rough Trade" of Public Controversy

The Supreme Court of Canada has pronounced in WIC Radio Ltd. v. Simpson, a case which involved former British Columbia Socred pol and longtime radio talkinghead Rafe Mair.  Mair and Kari Simpson took opposing sides in a debate about whether introducing materials dealing with sexual orientation into public schools was to promote tolerance or to promote a so-called "homosexual lifestyle".  Mair took to the airwaves, comparing Ms. Simpson to Hitler, the KKK and skinheads, suggesting that her position amounted to condoning violence against homosexuals.  Simpson sued Mair and his employer for defamation.  The trial judge applied the "fair comment" defence and dismissed the action.  The Court of Appeal reversed on the basis that there was no evidentiary foundation for the imputation that Simpson would condone violence against homosexuals.

Restoring the trial judgment, Binnie J. for the majority argued that the right to free expression requires broad accommodation by the tort of defamation.  So long as a comment includes inferences of fact and is recognized as comment, and represents an opinion tht could be honestly expressed on the facts, the claim can only be defeated if the defendant was subjectively impelled by express malice.  On the facts, and allowing for the broad latitude afforded to expression by the defence of fair comment, the defamatory imputation that Simpson would condone violence against homosexuals (while not committing such violence herself) was an opinion that could honestly have been expressed on the facts, even if expressed at a somewhat exaggerated level.  And, since the trial judge found that Mair's comment was not actuated by malice, the defence of fair comment held.

In partially concurring reasons, LeBel J. noted that the impugned statement clearly constituted comment, and not a representation of fact, posing no realistic threat to Simpson's reputtion (and as such were not even, in LeBel J.'s view, defamatory).

Also in separate reasons, Rothstein J. concluded that the statement was defamatory, but that the defence of fair comment applied.  He would have imposed what I think is a less stringent test upon Mair - that the statement was comment, with a basis in facts, concerning a matter of public interest.

Another great line from Binnie J. (at para. 15):  "Public controversy can be a rough trade, and the law needs to accommodate its requirements."

A rich decision, lots to chew on and, lamentably, not enough time to post on all its aspects.

Lister v. Romford Ice: no longer good law in Canada?

My thanks to Jason Neyers for drawing to my attention yesterday's decision of the Ontario Court of Appeal in Douglas v. Kringer, 2008 ONCA 452 which, drawing heavily from La Forest J.'s dissent (on the cross-appeal) in London Drugs Ltd. v. Kuehne & Nagel International Ltd., applied the duty of care analysis in Cooper v. Hobart to find that a 13 year old hired to be a "boat boy", did not owe his employer a duty of care when he inadvertently started a fire that burned the boathouse.  In the process (and particularly in relying upon La Forest J. in London Drugs), the Court of Appeal has called into serious question the applicability in Canadian law of the rule in  Lister v. Romford Ice and Cold Storage Co. Ltd., [1957] A.C. 555.

Mustapha v. Culligan of Canada Ltd. - the SCC pronounces on Nervous Shock (sort of)

A little over a week ago, the Supreme Court of Canada pronounced in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.

The facts of the case are notorious.  Waddah Mustapha saw a dead fly in an unopened bottle of water supplied by the defendant, Culligan.  Neither he nor anyone else consumed any of that water, although all members of his family had consumed the defenadnt's water for the previous 15 years.  Mr. Mustapha became obsessed about what he had seen and about the potential implications for his family's health from having possibly consumed impure water in the past.  He was diagnosed as suffering from a major depressive disorder, with associated phobia and anxiety, all triggered by seeing the dead fly.

Specifically, the trial judge summarized the effects on the plaintiff in these terms:

"He pictures flies walking on animal feces or rotten food and then being in his supposedly pure water.  The worst thought was that his wife would carefully sterilize a bottle for the health and safety of his baby daughter but then would put into that bottle formula made from Culligan water. ...

He could not get the fly in the bottle out of his mind, he had nightmares, he was only sleeping four hours or so a night, he has been unable to drink water since the incident, he has lost his sense of humour and instead became argumentative and edgy, he has been constipated, his bothered by revolting mental images of flies on feces ....

He can't get up and get off to work in the mornings as he always used to.  He has lost clients because of the changes in his personality and modd and also because of the reduction in his previous skills as a hairstylist.  He has lost interest in, and ability to perform sexually.  He had initial complaints of nausea and present complaints of constant, unexplained abdominal pain or discomfort."

The Supreme Court of Canada releases a fascinating - yes, fascinating - decision on pure economic loss: Design Services Ltd. v. Canada, 2008 SCC 22

Last week's decision in Design Services Ltd. v. Canada marks something of a coming-of-age for the Supreme Court of Canada in its handling of claims for pure economic loss.  After the difficulties of the 1990s, which included some backing and forthing on the recoverability of relational economic loss, Rothstein J. (for the court) demonstrates a welcome maturity and confidence in Design Services.

Public Works Canada (PWC) launched a design-build tendering process, which requires the bidder to congregate the necessary design and construction sub-contractors at the bidding stage.  The plaintiff/appellant, Design Services Ltd., was identified within the bid of the head contractor (Olympic Construction Ltd.) as part of Olympic's design-build team.  For the purposes of the litigation, the court was asked to assume (and did assume) that PWC awarded the contract to a non-compliant bidder and that it should have awarded the contract to Olympic.  As a result, Olympic and Design Services sued PWC.  Olympic settled out, and Design Services continued with its litigation.

"Extraordinary" Duty of Care?

I just read a piece in the current issue of the Canadian Medical Association Journal on the much talked about "decision to withdraw or withhold life-sustaining care." This piece focuses on the Samuel Golubchuk case which I gather is like Terry Schiavo but with the family saying no on religious grounds (and getting an injunction to back that up), and some physicians taking it personally. Interestingly, the authors of this piece argue (and I reproduce verbatim):
"First, the considered withholding or withdrawal of life sustaining care is not "murder." Lawyers may make it seem so by exploiting the dubious distinction between acts and omissions — when in truth discontinuing invasive procedures such as tube feeding is both an omission (e.g., discontinuation of care) and an act (e.g., removal of a tube). Wise judges would reject this linguistic charade and bravely adopt an ethical approach to decision-making, which always emphasizes the best interest of the patient. In these circumstances, it is the disease that kills the patient, not the doctor or the treatment."

And...

"...some families will overreach in their demands to preserve life, often because they use fundamentalist religious beliefs or cultural norms to narrowly define the best interest of the patient. In dying, just as in living, no right, including the constitutional freedom to one's religion, is absolute. Requiring caregivers to stand in the way of the natural process of dying by forcing them to impose what, under the circumstances, are extraordinary measures with no foreseeable benefit, should not be accepted by the courts or society at large. Although religion and culture assist in better understanding the context of decision-making, it should not impinge on the rights of others. To make religion a factor in allocating a hospital bed is inequitable, for it privileges religious patients over others who may need care more urgently and whose chance of a favourable outcome may be better."

Needless to say, I find both arguments fascinating for obvious reasons. While both strong arguments, the first one somehow cancels out the second. Or perhaps its just me and my lawyerly linguistic charades. What I mean is that it seems suspect to argue first that it is the disease that kills, and then follow that with a suggestion that we need to consider tradeoffs in our publicly funded health care system (knowing fully well that those tradeoffs can only be procured by the doctor not the disease).

Mustapha v. Culligan: "Nervous Shock" (or not) at the SCC

The Alberta Law Review has launched an Online Symposium with an exchange between Lewis Klar and me on Mustapha v. Culligan.

The Cadman Affair takes (for us Tort Lawyers) an Interesting Turn

PM Harper has retained counsel who this morning sent a letter to Stephane Dion, Michael Ignatieff and Ralph Goodale, demanding retractions of and apologies for statements to the effect that the PM knew of attempted "Conservative bribery" of Chuck Cadman.

And so it begins ....

Ontario Court of Appeal adopts journalist defence for defamation

Canadian defamation law has long tilted the balance toward protecting an individual's reputation, and away from the competing value of freedom of expression.  The Ontario Court of Appeal holding in Cusson v. Quan suggests that this may be changing.  In that case, which involved defamatory allegations pertaining to an OPP officer that went AWOL after 9/11 to help rescue efforts in NYC, the Court side-stepped qualified priviledge and adopted a "standard of responsible journalism" test which would involve a consideration of the following 10 factors taken from the House of Lords decison in Reynolds v. Times Newspapers:

1. The seriousness of the allegation (the more serious, the greater the potential damage to a defamed's reputation and to public information);

2. The nature of the information and extent to which it is a matter of public concern (a hold over from the qualified priviledge analysis);

3. The source of the information (i.e. reliabilty of the source)

4. Steps taken to verify the information;

5. Status of information (i.e. has there been a formal investigation to which deference should be paid);

6. Urgency of the matter.  News is often a perishable commodity;

7.  Whether comment is sought from the plaintiff, who may have information that others do not.  An approach to the plaintiff may however not always be necessary;

8. Whether the article contained the gist of the plaintiff's side of the story;

9. The tone of the article, e.g. does it treat allegations as statements of fact;

10.  The circumstances of the publication, including the timing.

This is a positive development for freedom of expression while still protecting individual repuation by recognizing the need for due diligence by journalists.  But I wonder...are bloggers journalists?  And if so, how does this analysis apply to blogs?   Blogging differs from print journalism in some respects -there are less resources available to the individual blogger to check facts, there are no editorial checks, and there is tendency for blogs to be forums for opinionated expression.   However, blogging is similar to print journalism in one important and material respect - both act as a source of news on matters of public interest. 

The answer might be that bloggers should be protected as journalists when they report and comment on matters in the public interest.  Further, the Reynolds standard should be relaxed for bloggers in  recognition of the limited resources and checks at their disposal.

Back to Statutes and Proximity: SCC grants leave in Holland v. Saskatchewan

"Help!  My compliance status has been reduced, and the enabling statute discloses no proximate relationship!"

Not quite two weeks ago, the Supreme Court of Canada granted leave to appeal from the Saskatchean Court of Appeal's decision to strike the plaintiff's action in Holland v. Saskatchewan.   (David Cheifetz made brief reference to it here).

It is a representative action brought by commercial cervid (deer, elk, etc.) farmers in the province (Holland, the representative plaintiff, farms elk).  Holland had received a game farm licence issued under a statute and complied with the provincial surveillance program aimed at avoiding the spread of chronic wasting disease in cervids.  At some point, the provincial program was combined with a federal program (note earlier comments to David about federal intrusion into sacrosanct provincial waters) which required farmers to release and indemnify the federal Crown in connection with the disease and the program.  When Holland and the other plaintiffs refused to sign, Saskatchewan reduced the compliance status of his herd to "surveillance", which reduced his herd value. 

Holland sought judicial review and succeeded in having the surveillance status removed from his herd.  The Minister complied but refused to restore the original clean status of the herd.  That prompted a suit (alleging negligence, misfeasance in a public office and intimidation) and - unsurprisingly - the Minister's application to strike. 

Donoghue v. Stevenson II: Did Someone say "Baltika"?

My thanks to Andrew Tettenborn of the University of Exeter School of Law for drawing attention to the latest incarnation of Donoghue v. Stevenson. 

Agence France-Presse is reporting today that a Russian man who said he discovered a condom wrapper and a "suspicious" rubber fragment in his bottle of "Baltika" beer is seeking the equivalent of 1.5 million Euros in compensation.

In his suit he pleads that his drinking from the bottle has tapered off to nothing since then.  Might I (and I speak as someone who has once attempted to consume Russian beer) suggest that the defendants plead betterment?

On a related note, no hearing date has yet been set at the Supreme Court of Canada in Mustapha v. Culligan.

Will the SCC consider Vicarious Liability in 2008?

The case of Transportaction Lease Systems Inc. v. Jennifer Yeung (Yeung v. Au), must have slipped past me when the SCC granted leave to appeal from the British Columbia Court of Appeal last February.  (The hearing is set for October 16, 2007).

The narrow issue goes to section 86 of British Columbia's Motor Vehicle Act, which holds owners liable where a vehicle owner's family member or another person with the owner's express or implied consent to possess the vehicle causes damage to another person while operating the vehicle.  (This is the equivalent of, i.e., section 181 of Alberta's Highway Traffic Act, or section 192 of Ontario's Highway Traffic Act).  More specifically, the case addresses the statutory exception where the vehicle has been sold as is in the possession of a purchaser under a conditional sale contract (where title remains in the seller in the interim).

The case does, however, give the Supreme Court an opportunity to consider again the general question of vicarious liability.  The Court of Appeal quoted at length from Bazley v. Curry as embodying the objectives of section 86.  Depending on how the Court approaches this case, any general comments on vicarious liability might be obiter, but as any student of tort cases at the SCC knows (at least in factual causation), life would be dull without obiter.

Proximity and Statutes

Proximity is about relationships. Hence the expression "a relationship of proximity". Relationships of proximity arise as a result of behaviour and interactions.   Not all relationships are considered by the common law as relationships of proximity.

Statutes do not create relationships of proximity. Statutes may provide the justification or the catalyst for the parties to enter into a relationship. The courts must  then examine the relationship so entered into to determine if it is a relationship of proximity. But examining the statutory provisions will not assist the court in answering this question.

If courts continue to attempt to find relationships of proximity within statutory provisions, plaintiffs will continue to have their actions struck out summarily. If courts were  to actually focus on what the parties did, what their legitimate expectations were, whether there was reliance, etc. plaintiffs might be able to convince courts to find a prima facie duty of care.

It seems too straighforward to me. Am I missing something here?

Lewis

Proximity in Negligence Law

A lively discussion is emerging here about the meaning of proximity in negligence law, particularly where the defendant is a public authority.

Even more on Vicarious Liability

Our lively exchange continues and Moin has suggested it (once again) deserves its own post. 

In answer to Gareth's question (which appears in the last comment), I meant to refer to all instances of vicarious liability.  If negligence liability is generally liability for fault, then vicarious liability is, when viewed as part of negligence law, exceptional. 

Syl Apps STC v. BD - does the SCC even understand tort law?

After a quick scan last Friday, I finally managed this morning to give the SCC's pronouncement in Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 some serious attention. 

First, just to clear up any possible misconceptions (although this might be lost on non-Canadian lawyers):  neither Syl Apps Sr. nor Syl Apps Jr. are implicated. 

Right, now that that potential unpleasentness is dealt with, on to the decision.  We are told that the plaintiff's child/grandchild/sibling was apprehended by the Haltan Children's Aid Society and placed in a foster home, after having written a story at school which included an account of physical and sexual abuse at home.  A police investigation resulted in no charges but instead temporary wardship of the child in the Crown and placement in foster care (and subsequently in several psychiatric facilities).  Eventually, she landed in the defendant treatment centre and was made a permanent ward of the Crown AS IF her parents HAD abused her.  This, it was alleged, deprived the family of a relationship with the child.

Ultimately, Abella J., writing for the Court, dismissed the action on the grounds that (and I'm abbreviating this as much as I can) the pertinent enabling statute, from which we are to divine "proximity" between the defendant and the public authority, articulated (1) an overarching duty to the child, which could conflict with a duty to the family, and (2) an immunity clause for decisions taken in good faith.

There is an obvious issue for torts people to discuss in the SCC's ongoing understanding of proximity as being found (or, as is usually the case, not found) in a statute.  My comments are more general, though, and follow from my earlier post on tort law and the SCC.  There are scattered hints throughout the judgment (a relatively short one for the SCC) that the Court simply doesn't understand the fundamentals of tort law that we teach to our students.  This is nothing new (to anyone who read CNR v. Norsk and "learned" from McLachlin J. that "where the fault is negligence, the duty extends to all those to whom the tortfeasor may foreseeably cause harm"), but since this is Abella J.'s first torts judgment since her elevation to the SCC, it is worth going through the list.

1.  In Cooper v. Hobart, we were told that we had not "properly underst[anding]" the Anns test as engaging policy considerations at both stages.  Now, Abella J. tells us that Cooper was in fact a "definitiv[e] refine[ment]" of Anns.  Is there a difference?  Does it matter to the Court?  What does the Anns test mean now?  What does Cooper mean now?  Do the justices not realize that these questions actually matter to litigants who are spending good money thinking that someone who knows what they are doing will eventually adjudicate their claim?

2.  The Court continues its struggle to understand basic elements of the tort of negligence.  Abella J. defines "the basic proposition underlying 'reasonable foreseeability'" as being that one must take reasonable care to avoid acts or omissions which one can "reasonably foresee" would be likely to injure one's neighbour.  (She is quoting from Donoghue v. Stevenson here).  When a definition relies upon the very term being "defined", it's fairly clear that the definer doesn't have the big picture.

3.  In the same vein, the "purpose" of proximity is, Abella J. tells us, to determine whether a duty ought not to be imposed because of "the absence of any relationship of proximity" between the parties.  This is like saying the purpose of being careful is to determine what will happen if I am not careful.  (She is quoting here from an excerpt from Linden & Feldthusen, Canadian Tort Law - although it should be noted that they were simply describing the second stage of the Cooper test, not trying to define something's purpose by reference to the thing itself).

4.  At one point, Abella J. says "Neither the treatment centre nor [its employee] ... could have anticipated what the effect of their treatment of [the child] would be on her family ...."  I would expect my first-year torts students to identify that as a question going to remoteness - a term which does not find its way into the judgment.

One final point, although this doesn't go to negligence law.  There was in the enabling statute a statutory immunity provision (to which I have already referred).  Given that the plaintiffs had dropped the allegations of bad faith, why wasn't this the end of it?  Perhaps I'm missing something (i.e. it was seen as immunizing the employee but not the employer, perhaps?), but it seems possible that this case could have been resolved in one paragraph.