Template for PRIVATE NUISANCE Test for Nuisance (Step 1):1. Has a protected right of the plaintiff been interfered with? (Bradford, Fountainbleu)Situations for thinking about that:

- Plaintiff has to be the owner or possessor of land - if don’t own it, can’t complain about it (Hunter v Canary case)

2. Emanation or Prevention Case? 1. Emanation: Plaintiff has to prove something is emanating onto their land and interfering with

their right to use and enjoy their property (emanating into their magic carrot: physical space which is your land, the surface, what is below your land, and airspace above) (Appleby, Rogers)

2. Prevention: If it is not an emanation case but prevention, Plaintiff has to prove they had the right to the thing that was prevented from getting into their magic carrot (Bradford & Pick-les, Fountainbleu)

***if plaintiff does not have a right (on exam), say: This is my best understanding of the law of private nuisance, according to Modern Canadian Law. However, I understand the courts can get a little confused <— some sort of qualifier (Qualifier Cases: Antrim - didn't mention step 1 here, Prah v Maretti, Cartelli — did you have to be an owner? the court here said maybe not, dealt w/ foreseeability, Cooper v Hobbart is another qualifier case suggesting you can create rights)***Easement could go in the Rights section or the Defences section (Sturges)

Test for Nuisance (Step 2)1. Was there a substantial and unreasonable interference? (Antrim, Appleby) - Substantial = non trivial - Unreasonable according to Antrim involves looking at the harm versus the utility (Antrim:

public utility cannot have too much weight)a) Harm side of unreasonableness (most important): look at the gravity, frequency, and du-ration of inference and possibly time of day (Huron Steel), look at the community standard/character of the locale (Appleby), whether or not the plaintiff is extra sensitive (Rogers v El-liot), whether there has been any changes to the status quo/amplification (Kennaway v Thomp-son), does the interference/thing emanating have a discernible effect or is it inert (Smith v Inco)b) Utility side of unreasonableness (overall social usefulness/is this a socially useful thing?) - Huron Steel, Black v Canadian Copper (mines too important to Canada/Business)

c) Malice (Silver Fox Farms) - doesn't count as malice if had a good reason to do it (Foun-tainbleau, Rogers)***balance these cases - but don’t balance them equally - the harm one is most important (Antrim)

Defences (Step 3)2 Big Defences:1.Statutory Immunity - Legislation may be enacted that expressly exempts certain forms of activity from liability.2. Statutory Authority (Tock Test, Ryan v Victoria)1) Must Defence (Explicit)

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- had duty to do it, doing it a certain way was inevitable2) May, Must Defence (Implicit)- may have had duty to do it, must be done in a certain way 3) May, May = No Defence (Power and Flexibility)- may have a duty to do it, did not have to do it in a certain way/had discretion/were flexible*after determine statutory not defence, apply SCC used Appleby Test of Nuisance (substantial + unreasonable interference)*if stat authority or immunity, case is done, defendant wins - even so, should still go on to step 43. Being there First - not a true defence but can mention Denning in Miller - this defence failed in Sturges, failed in Canada Paper Company v Brown (Paper Mill)4. Easements (right to do something on someone’s land): The claim to nuisance fails if that person has an easement to do the thing (easement by prescription or easement by acquiesce) - failed in Sturges

Remedy/Remedial Aspects (Step 4) 1.Injunction (normal remedy for nuisance) - (Shelfer, Appleby)a) quia timet injunction? (Shuttlesworth)b) partial injunction? (Kennaway)c) compensated injunction? (Spur)2. Whether damages should be substituted for injunction on basis of Shelfer Rule a) Go through 4 requirements of Shelfer Rule1. small injury to P’s legal right2. injury is capable of being estimated in money 3. injury can be adequately compensated by small money payment (context specific - what is

small money payment to a large corporation may be large money payment to a single indi-vidual)

4. it would be oppressive in the context to grant the defendant an injunction***Miller v Jackson AND Appelby would FAIL the Shellfire Test3. Whether or not plaintiff should get past damages (Stephens Case/Richmond Hill) - BUT as shown in Stephens, to get past damages, you must prove you suffered an actual loss

Public Benefit? (Step 5)If on defendant side and things don't look like going well - could argue public benefit1. In some cases, Boomer Case, Lord Denning in Miller v Jackson, KVP2. Although not likely to be followed (failed in Canada Paper Company v Brown, failed in Stephens/Richmond Hill), also the danger of Spur (injunction but have to compensate other side) 3. Kennaway v Thomson shows how the public interest defence (at least in the way defined by Denning) does not always prevailWrite on EXAM: Kennaway v Thompon seems to more accurately depicts the law as properly understood

FINAL STEP: Danger if you win over an important industry or public work (Step 6) FINAL THING: if this is an important industry or public work - what is the danger if you win?1. Don’t be surprised if legislation is enacted dissolving an injunction - government can al-ways pass retroactive legislation (see KVP Act, Stephens)

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Application of Private Nuisance Template to Huron Steel Case:Facts of Huron Steel: Defendant’s has stamping plant that has been in operation for years. Plain-tiff bought nearby apartment building. Plaintiff complained about noise and vibrations. A second press was bought and efforts were made by defendant to reduce noise and vibrations. Plaintiff brought an action for nuisance claiming loss of rental income and loss of value to building.

Step 1: Does plaintiff have a right being interfered with?1. Plaintiff owns apartment2. Emanation case —> noise and vibrations emanating into magic carrotStep 2: Is this a substantial and unreasonable interference?a) Is this a substantial interference?- Yes —> it is substantial (not trivial) b/c everyone is willing to testify that the noise and vibra-tions are bothersome (don’t say substantial b/c lost money)b) Is this an unreasonable interference? - Yes—> - Gravity, duration, frequency: the noise is very severe, intermittent noise is worse than contin-

uous noise, been going on for 10 years, happens on weekends and at nights too - Are the people in the building being overly sensitive? No - every person testified found it dis-

agreeable along with Health Canada- Has there been any changes to the status quo/amplification? there is amplification, new ham-

mer came into picture- Community Standard? Judge says this isn't just industrial neighbourhood - it is mixed: always

been industrial & neighbourhood area, etc. - Utility? Usually social utility doesn't trump cause of action, but might weigh into how much

damages court would give you - According to Antrim, do not sacrifice people for the public good - judge thinks all things considered has been actual nuisance

Step 3: Defences: Is there stat immunity or authority? - no, also no pre-emptive legislation.

Step 4: Remedies: Primary remedy for a nuisance is an injunction - but open to plaintiff to apply the Shelfer Criteria:- Application of Shelfer Rule: not a small damage easily compensated into money, money not

great compensation for lying awake at night, although burdensome, injunction would not be overly oppressive to the defendant, therefore remedy should be awarded

Step 5: According to Stephens, the owner of the apartment building might be able to claim past damages- Damages in relation to the past b/c it has been going on for 10 years- theoretically could ask for substitutive damages for what went on for the 10 years (need to

measure how much apartment worth now and how much rent would have been without the noise - what would be able to rent that for - figure that out, times it by 10 years)

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- here he didn't do that, only claimed consequential losesStep 5: WARNING: might get dissolved by legislation

PUBLIC NUISANCE Template - What to do on Exam: 1. First thing have to prove: Public or Common Nuisance- first, state that a common law definition of a public or common nuisance is this: a) they did an act not warranted by law (in the statute) or did an omission and failed to dis-

charge a duty b) the act or omission endangered the health, life, property or comfort of the public OR c) the act interfered with public rights (right to pass and repass on public highways or right to

fish in public waters)2. Second thing have to prove is plaintiff suffered special damageDamage that is:1. DIRECT

1. Primary argument that you will have will be the Modern View - Hickey and Stein repre-sents the modern view - distinction b/w trespass and case, whether or not pure economic loss has something to do with it

2. Then mention the Traditional View - Ricket case represents the traditional view, it is from House of Lords, highlights this idea of Privity

2. SUBSTANTIAL 1. Basically going to use concept as developed in private nuisance - an important, actual,

non-trivial interference 3. PARTICULAR

1. State that there is a Modern View, that in Canada comes from Hickey and Stein , which suggests there has to be a difference in kind — that will be your primary argument1. Hickey: loss fisherman suffered wasn't a different in KIND - everyone suffered the

same loss because everyone has the public right to fish in public waters2. Stein: do not have a public right to open a business (it is a liberty), therefore, no pub-

lic right was violated 2. Then state there is a Traditional/Older view that comes from cases like Rainy River from

Ontario Court of Appeal, where what we are looking for is actual pecuniary losses (loss of buisness) or another way to think of Rainy River is ‘extent’1. Rainy River: fisherman experienced a different EXTENT of damage from the depth

of the river sinking b/c suffered economic loss as a result 2. Must actually suffer a loss, not just a theoretical loss

***Actual test Canadian courts apply is amalgam of little bits and chunks of all 3 of the dif-ferent tests

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Hypothetical Set of Facts (Tate v Lyall). A owns a factory. There is a river by the factory, somebody puts a dock out in the river, when that happens, river is less deep - used to be 20 feet deep, now 10 feet deep. Plaintiff sues defen-dant - his ships which need 18 feet of clearance/depth can no longer get to the factory.Question: Is that a private nuisance? Is that a public nuisance? OR is it neither?

1. Can the plaintiff sue in private nuisance?❖ Although, there was an interference with his riparian rights to public water (if his land hori-

zontally or vertically crosses with the water) - BUT riparian rights are only the quality and quantity of the flow of the water

❖ Has the quality or quantity of the flow being diminished? No, water has not been made poi-sonous, hasn't altered the flow of the water - basically that’s what the House of Lords said - al-though it interferes with his riparian rights, the quality and quantity was interfered with

❖ Has his right of access been interfered with? He is able to step off and on his land whenever he wants, private right law of access has NOT been interfered with — if they had built a wall, could have been different

❖ Answer: NO PRIVATE NUISANCE - no emanation from the river onto his land and cant ar-gue prevent b/c riparian rights are only for the flow and quality, neither which has been dimin-ished, and right of access has not been interfered w/

2. Can a plaintiff sue in public nuisance?1. Public or Common?Step 1: Did they do an act not warranted by law (warranted by law = in the statute)? In other words, was there a statute that said the plaintiff could do this? NO. The plaintiff’s act was NOT warranted by law. Step 2: Did this endanger the life, health, property, comfort of the public? NO. Step 3: Did it interfere w/ plaintiff’s public right? can plaintiff pass and re-pass his ships? House of Lords said right to pass and re-pass on river includes natural depth

2. Is it special damage?1. Substantial? Yes.2. Direct? a) Is it direct under the Classic View (Ricket)? - Not a Ricket problem, not that his customers cant get there, it is that he cant get there. b) Is it direct under the Modern View (Hickey)?- Court doesn't seem to be too concerned with economic losses, doesn't seem like a direct lossConcern about pure economic losses:- Pure economic losses = losses that do NOT flow from property being damaged or people being

injured - The common law doesn't like losses that don’t involve a violation of rightsWhy, in Lyall case, are we NOT concerned about pure economic losses? - because issue was concerning his rights to pass and re-pass- pure economic losses are only an issue when NO rights are involved

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- Good Answer: I think x is the right thing to do, but court might do y because…

3. Particular/difference in kind? - Modern View: seems like plaintiff here has suffered a difference in kind, he is actually suffer-

ing losses (for everyone else, it is merely inconvenience)- Traditional View/Old Authority: extent, rather than differences in kind (Rainy River Test) - he

is either losing more business (greater extent) or actually suffering losses (vs. theoretical losses)

EXAM QUESTION: would be given the facts of Tate and Lyall and would have to tell Neyers what the law is❖ Expected to write the objective truth - what an objective, non-biased lawyer would say - some

issues very clear, some will not be as clear ❖ Basically a memo without any outside research ❖ Even if think fails on step one - need to talk about steps 2-8 anyway - so even if something

doesn't apply, need to say why doesn't apply

How to write exam answer - IRAC Method:1. Issue2. Rule3. Application4. Conclusion - don’t write whole memo w/ one IRAC, don’t write 50 billion either- want to have IRAC for each important issue on exam

Exam example answer:The issue that Neyers is asking is whether there is any liability on this set of facts. The rules we have looked at are the rules surrounding public and private nuisance. “In order to answer this question, I have to break it down into private nuisance or public nui-sance.”“Then have to break public nuisance into 3 bits…etc.”“I will now apply my template. The rules for step one is emanation/prevention - conclude this failed/succeeded. Issue number 2, here is application of law, here is my conclusion.”- Each IRAC should be a paragraph or 2 - if shorter, too simple, if larger, need more of them - Overall IRAC concludes by saying Neyers asked me to conclude whether this is a Private or

Public nuisance - the latter will likely succeed, because it …. according to the classic authori-ties…according to the modern authorities.

*Other important thing - do not do too much RULE (black letter law of cases) and too little ap-plication - Do lot’s of application and don’t forget conclusion - need to know what the answer is and

where there are grey bits

Tort law has 3 part structure1. Has plaintiff’s rights been wrongfully been interfered w/?

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2. Is there a defence that can be established?3. If there is a right violation and no defence, what kinds of damages are available?

VICARIOUS LIABILITY TEMPLATE Apply Bazley Test on Exam- lean more towards w/ Binnie’s approach (more w/ particular job rather than particular enter-

prise) but the best answer would be somewhere between Abella in EB/Saxey Case (the enter-prise) and Binnie (the job created power)

*Justice Binnie in EB v Order: Enterprise risk cant be the whole story by itself - need to look at power the employer gave to employee —> the job created power *Justice Abella says we should focus on the enterprise Best Answer = somewhere in between Abella (enterprise) and Binne (job created power)—Martini Shaker of law - doesn't have to fit all requirements —Some people say their difference in conclusion was due to how they viewed the facts of the case

BAZLEY 5 Criteria: to determine whether an employer is vicariously liable for an em-ployee’s unauthorized intentional wrong, in cases where precedent is inconclusive, courts should be guided by the following principles (these are subsidiary factors related to #2 of Bushey Test):

Modern Definition of Vicarious Liability (according to SCC in Bazley)1. Somebody else has committed a tort 2. Close Connection between the employer and the person formally known as the employee (this criteria important when not strictly employee/employer connection — like priest/bishop close relationship)3. Close connection between the employment and the tort (things that I asked you to do and what actually happened) 5 factors to determine this ( Bazley ): a. Did the enterprise provide the opportunity for the employee to commit the abuse (more the

mere opportunity but materially increase the risk)?a. Binnie: what POWER was the accused given/permitted to do (ex. Mr. Saxey was not per-

mitted to be alone w/ children, he was a baker and motorboat driver —> none of these things materially increases risk of sexual assault)

b. Extent which wrongful act furthered the employer ’ s aim (make it more likely to be committed by employee)

c. Extent which tort/wrongful act was related to friction, confrontation or intimacy in employers’ enterprise (ex. accidents that occur based on nature of the enterprise)

d. How much power did enterprise give to employee? (de-facto parent)e. How vulnerable was the victim to the enterprise of this wrongful power? (difficult to

imagine a job w/ greater risk for child sexual abuse)4. Policy1. Fair compensation (theory of enterprise; enterprise had risk)2. Deterrence (fair to deter them b/c they created a risk)

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***In almost every case, someone will say the policy is x and another will say policy doesn't matter

Saagaz Entrepreneur Test to determine if someone is an independent contractor or an em-ployee:1. Level of control- more person has control over thing being done, more likely employee, less control they have,

more likely independent contractora) Does the person provide their own equipment? - if provide own equipment likely IC, if don’t, likely employeeb) Does the worker hire their own workers? - if you hire your own workers to assist you, then likely independent contractorc) Level of Financial risk taken by worker- if worker takes all the risks both up and down, then likely independent contractor - if don’t

take all the risks, reimbursed for everything, likely an employeed) Degree of responsibility for management and investment - if the worker is responsible for managing everything and for investing the profits that he gets,

then likely to be independent contractor - if not reasonable for investment or management, then likely an employee

e) Whether or not worker has opportunity to profit - if being paid by hour, likely employee - if work faster and have opportunity to profit —

likely ICAdditional Factor: Whether you do work for lots of different employers - the more the employers/work for a lot of different people - more likely independent contractor, if have only one employer, likely employee—put this all in martini shaker for exam

General Rule: Employer is not vicariously liable for and independent contractor

3 Exceptions to the Rule:• Three time when people say there is an exception to the rule that you cannot be held vi-

cariously liable for independent contractors 1. Negligent in selecting, instructing, or supervising a contractor

• Problem: This is not vicarious liability it is personal liability for your own tort/fault 2. Employer is under a non-delegable duty

• eg) those imposed by statute - certain officials are responsible for certain duties

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• A duty imposed on someone personally to see that some result ensues or that care is taken

• Problem: this is not vicariously liability, it is liability because you were supposed to do something

• Work is specially, peculiarly or inherently dangerous unless precautions are taken• Rule was invented in the 1920’s and would probably not hold up today (this is b/c of

Rylands v Fletcher - before this case you could absolve yourself of strict liability for ul-tra-hazardous things if s’one did it for you)

• No modern duties for dangerous things (only very specific duties) • Everything in life is inherently dangerous without precautions

ON EXAM CALL THIS THE RYLANDS v FLETCHER STRICT LIABILITY TEST AND CITE SMITH V INCO4 Step Test Court of Appeal in Smith v Inco said Rylands v Fletcher laid out:1. Non-natural or special use of property2. Something that was dangerous (likely to do mischief) 3. Had to do with actually escape4. Had to cause damage (Ontario Court of Appeal said not sure what damage means here, know definitely means property damage, but might also mean personal injuries)***this overall test is not a martini shaker —> #1 is the martini shaker portion of it but need to check off all 4 to establish Rylands v Fletchers liabilityIn Smith v Inco, plaintiffs won (trial level)1. Wasn’t a nickel mine - they had to bring this in - so it was a non-natural use of land 2. Mischievous if escaped3. Actually did go off land/escaped4. Judge said economic loss = damage*Therefore, met all 4 of the requirements

Court’s thought-process (Smith v Inco) of what should we do w/ Rylands v Fletcher?1. Should it be abolished? - Court of Appeal said no. Didn't overrule it in Tock, so they don’t feel comfortable doing it ei-

ther. 2. Should import the American Doctrine (if don’t want to get rid of it it)? - Said no - not going to overrule it or extend it to strict liability for ultra-hazardousness —> if

want to do this, need to be taken to SCC - this would be best left for legislature (said even if were going to do it, stupid argument b/c nickel isn't dangerous let alone ultra-dangerous)

Ontario Court of Appeal in Smith v Inco said this was their best understanding of Rylands v Fletcher:1. What is meant by un-natural? - Trial judge made mistake here - he said b/c it is not found on property, it is not natural. Court

of Appeal said, may have been law in 1850, but not the law now — the test for natural/non-natural is whether or not the use is appropriate

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***3 things should look at to determine if APPROPRIATE1. WHERE: where the use is made? 2. WHEN: the time they are smelting nickel (time of the day)3. MANNER: how are the smelting the nickel (the manner)

Court said one thing could look to is zoning regulations? Property was allowed to have heavy in-dustrial use so appropriate — these are not determinative - have to put in martini shaker of appropriate use - have to balance ordinariness w/ the dangerousness in the particular - so it is a balance of dan-

ger and mischievous and extraordinariness w/ reasonableness — nickel not dangerous in ab-stract, was they way they were doing it extraordinary? no. manner? no nobody would have found that unusual, it was in context of factory

2. Is nickel especially dangerous in the abstract? - NO. So fails b/c not dangerous in abstract (our coinage is made from this) <— tenor of this

part of the judgement 3. Did Rylands v Fletcher only apply to one particular escape (one dam bursting) or could it apply to lots of little escapes? - Court said could apply to plaintiff’s case of lots of little escapes so didn't fail here - BUT they say this is obiter: we think escapes has to be accidental, not intentional - b/c Inco

was spewing it out intentionally, this does not count as escape (Rylands v Fletcher only ap-plies were it goes out and person didn't mean for it to happen) — even though plaintiffs shot over to plaintiff’s land - not escape, b/c wasn't accidental

- escape cannot mean something you intended to (escape = accidental by-product, not some-thing intended)

- cant impose strict liability to intentional escapes (would make Rylands v Fletcher too big)- p. 182 - strict liability in Rylands v Fletcher aims not at all risks, but accidental and un-in-

tended consequences of engaging in activity 4. Was there damage? - For same reason why no damage to property in tort of nuisance, say no damage to property

here***Plaintiff’s lost on all accounts

Inco said anything that is for general benefit of community cant be something that falls within Rylands v Fletcher- Court said doesn't buy that - said applies to government entity acting under statute (doesn’t ap-

ply to rich people who make lots of money - but sewers (like in Tock) and other governmental entities)

- in Tock, no liability b/c government sewer - but liable for nuisance - basically Ontario Court of Appeal is trying to make chicken salad out of chicken shit - but did

the best they could

3 BLL from Smith v Inco 1. The escape requirement from Rylands v Fletcher is not limited to a single, isolated event2. The intentional or planned emission of something does not meet the escape requirement in Rylands v Fletcher

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3. The non-natural use requirement is a balancing of dangerousness/mischievousness and extraordinariness/unusualness

What should happen in the future?• we know what happened in US/their solution is not going to happen here —> we are NOT go-

ing to have ultra-hazardousness rule in Canada • General Jones Limited case (HC of Australia) decided to put Rylands v Fletcher out of its

misery for 2 reasons:• 1. It has shrank considerable - once was robust rule, but snow has shrunk into tiny rule• 2. Negligence has gotten so big and Rylands v Fletcher has gotten so small, so got rid of Ry-

lands v Fletcher and included it under law of negligence (but odd thing is, they treat it not as negligence but as non-delegable duty)

Transco Case - 10 years later in UK - House of Lords did not want to over-rule Ry-lands v Fletcher - House of Lords did not want to overrule Rylands v Fletcher- unanimously wanted to keep it alive as a sub-species as law of nuisance- HOL said very important to have escape and we should be very tough on dangerousness- because it is a strict liability offence, whatever escapes should be VERY dangerous and

VERY unusual before we impose liability based on Rylands v Fletcher —> exceptionally high risk of danger and exceptionally non-ordinary, likes term ordinary better than nat-ural

- said we will remove the “benefit for community” aspect/justification because it has caused a lot of problems

- Lord Hobhouse: said like Rylands v Fletcher principle - an individual should be liable if something escapes from their land b/c a neighbour has no control over what escapes - al-though have zoning regulations, need Rylands v Fletcher as residual category

- another judge said need to have it in case politicians don’t get right answer - another said, judges should not make utilitarian calculations

BIG FINISH - we really shouldn't do either of these principles - Australia principle is WRONG - nuisance also falls into law of property, not ALL law of neg-

ligence - misses something b/c it doesn't take into account a lot of these property problems - UK principle is WRONG - something should have the same rules, not different rules, of what

it is a subset of (cant be a wart on the law of nuisance) * Really, we should pretend Rylands v Fletcher never happened - shouldn't be absorbed into any of the 2 torts (nuisance or negligence), but should be forgotten <— Neyers think this is what should and will happen in future

For EXAM - apply how Law in Ontario uses Rylands v Fletchers (Smith v Inco)On exam if there is a question: What is the answer of nuisance in Rylands v Fletcher?1. Explain the answer in relation to private nuisance (do the nuisance analysis best you under-

stand it)2. Explain the answer in relation to Rylands v Fletcher (best analysis you can do)

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- this involves explaining what the Court of Appeal did in Smith v Inco 3. Explain the answer in relation to public nuisance

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