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LAW430A Study Guide - Midterm Guide: Malicious Prosecution, Intentional Tort, No Malice


Department
Law
Course Code
LAW430A
Professor
Ireh Iyioha
Study Guide
Midterm

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1
Torts Hailey B (Prof: Iyioha)
NUISANCE (PRIVATE)
APPLEBY V ERIE TOBACCO CO, ROGERS V ELLIOTT, FONTAINEBLEU HOTEL CORP V 45 25 INC, BAMFORD V TURNLEY
A nuisance is a sustained activity that amounts to an unreasonable and substantial
interference with the use and enjoyment of neighbouring land. Private nuisance operates in 2
contexts: protecting land interest from indirect and continuing interferences that emanate from
neighbouring lands; and it shifts the costs of activities from individual victims to those best
equipped to distribute costs among beneficiaries. Nuisance concerns those interferences that
iterfere ith a Plaitiffs use ad ejoet of their own land. Nuisance is not concerned
about the action of the defendant, but the effects of that action, and it is only actionable on
proof of damage.
Use of land unreasonable if it causes substantial/material discomfort to others
rendering their property unfit for ordinary purposes of life (Appleby)
o Must balance this standard against the type or nature of the neighbourhood (but
not a trump card, new interferences can still cause nuisance
Elements of Nuisance (PROVE THEM ALL):
Indirect
Continuing
Non-physical
Emanates
Unreasonable (objective test)(Antrim) (material or substantial) Damage cannot be
merely speculative, sentimental, fleeting, or temporary.
- Examine ordinary practices, habits or norms of people living in a given society
- Not elegant or dainty or peculiar ways & habits
- Not sensibilities of overly fastidious or fussy people
- Something that would not affect ordinary people is NOT a nuisance (Rogers)
- Deliberate acts = malice, if so, court likely to find nuisance.
In balancing conflicting uses, courts consider:
o Bona fides of the parties (good faith; honesty of intention);
o Deliberate & malicious actions = Nuisance
o Not determinative (Fontainebleau) must interfere with actual right (not delight)
- But, evidence of deliberate action/malice = Successful action
o Purposes/Utility of the conduct of both parties: if nuisance is a public/community
benefit, plaintiff deserved compensation for losses (Bamford)
o Consider public interest before granting injunction (Bamford)
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2
NUISANCE & PUBLIC BODIES: TOCK V ST JOHNS METROPOLITAN AREA BOARD, ANTRIM TRUCK CENTER V
ONTARIO (TRANSPORTATION)
Promotes the goal of loss distribution for the damaging effects that socially beneficial activities
may cause. They do not ordinarily cause nuisance, they can fail and cause damage, which could
be nuisance.
Statutorily Authorized Public Body:
Defendant acting under statutory direction is not liable if: (Cite: Tock)
1. Activity is statutorily direct and statutory direction is mandatory (not permissive):
i. Specifically imposes a duty; OR
ii. Empowers public body with specific direction as to the manner and
location of activity. AND:
2. Nuisance was an inevitable consequence of mandated activity:
i. Could not have possible been avoided (considering costs, scientific
knowledge, feasible alternatives, etc.).
Tock v St John’s Metropolitan Area Board: Cite for Inevitability Doctrine
- Considers defence of Statutory Authority, but says it does not apply in this case.
- Although the building of the sewer was authorized, the ensuing damage was not inevitable.
- City worker had discretion and could have done the duty without creating a nuisance
- Inevitability Doctrine: if there is no discretion given by the statue, if it is inevitable that a
nuisance will occur, then it will be a good defence.
If body has discretion, no need to prove negligence
Elements of a Private Nuisance (Antrim) 2pt. Test:
1. Substantial interference:
i. Non- trivial
ii. Not trifling
iii. Not a flight annoyance
2. Reasonableness: was non-trivial interference unreasonable in all of the
cirucmstances?
i. Material Interference
ii. Expectations/usage based on standards of ordinary people
iii. No peculiar expectations
Antrim Truck Center Ltd v Ontario (Transportation):
How is reasonableness assessed in the context of interference caused by projects that further
the public good?
Assessed in light of all relevant circumstances:
Is the interference one that would be unreasonable in all circumstances to
require the plaintiff to put up with it without compensation?
Balances:
o Gravity of harm to plaintiff against utility of defedats odut
- utility of conducts considered against proceeding factors, public purpose does not outweigh
significant individual harm to the plaintiff
o Severity of interference (Material/substantial)
o Frequency and duration of interference
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3
o Character of neighbourhood
o Plaitiffs sesitiit
- Reasonableness analysis should favour the public authority where:
1. In light of all factors, cannot reasonably be viewed as more than the claimants fair
share of the costs
2. Especially where public authority has made all reasonable efforts to reduce impact
of its work on the neighbouring properties
DEFENSES TO A NUISANCE ACTION:
Statutory Authority:
- Mandatory authority + inevitable consequence (Tock)
- Permissive authority, directive discretion (Antrim)
Statutory Immunity:
- Statute provides express immunity from nuisance suit (set standards to be met)
EX. Pyke v Tri Gro Enterprises Ltd: Farm Practices Protection Act: immunity for farmers carrying on
agriultural operatios for uisae lais odors, oise, et resultig fro oral far praties.
Consent:
- Plaintiff consents to presence of nuisance-causing thing
EX. Pattison v Prince Edward Region Conservation Authority: plaintiff consented in writing and by
conduct to the building of the dam that flooded causing nuisance to his land.
- Passive acquiescence not likely to be enough, usually find for plaintiff
Contributory Negligence:
- Not restricted to negligence action
- Did plaintiffs negligence contribute to defendants acts causing nuisance?
Other: Most defences are subsumed under the balancing and elements/factors
- aterial daage, reasoale use of lad, loal stadards, plaitiffs sesitiities
REMEDIES TO A NUISANCE ACTION:
Damages: monetary compensation. Granted where:
- Plaintiff has suffered property damage or personal injury
- Usually not adequate for continuing interferences
Injunction: equitable relief
Working Rule for Remedies: Shelfer Rule:
(1.) If the injury to the plaintiff’s legal right is small,
(2.) And is one which is capable of being estimated in money,
(3.) And is one which can be adequately compensated by a money payment,
(4.) And the case is one in which it would be oppressive to the defendant to grant an
injunction.
= Then damages in substitution of an injunction (the usual remedy) may be given
Defendant may disentitle himself from relief if: speeds up activity or acts with careless
disregard for plaitiffs right.
General rule: where plaintiff is indifferent to type of remedy, and the injunction will
disproportionately impact defendants, the damages are issued.
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find more resources at oneclass.com
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