common law Flashcards
what falls under common law
- property (rights associated with owning property)
- contracts (making business more efficient)
- torts (addressing wrongs/harms)
- (judges interpretation of statute law)
what falls under statute law
- criminal
- regulatory
- constitution
- etc
does statute law affect common law
- yes, can overrule the common law if politicians dont like judge decision
do judges affect statute law
- yes, judge interpretation
law of torts - purpose and goal
- many kinds
- purpose: to assign liability to those who likely caused harm to another (personal or property) and determine remedy
- goal: return harmed person to position before harm occurred
who can sue
- private citizens
- corporations
- government
who can be sued
- employers (if an employee does something wrong employer will be sued)
- parents (for minors)
- government
balance of probabilities
- was it likely that harm was caused used in tort
- different than crim law - use beyond reasonable doubt, need more to prove
what is harm
- physical
- psychological
- financial
what if no injurty
- cant bring to tort law
- its not about the act itself, its about the harm
intention
- criminal: intention matters, must mean to do it
- tort: doesnt matter if you mean to do it, you still did
remedy for tort
- usually money
- never jail
- criminal: fined, jail, community service
who makes tort laws:
- judges
tort law and other types of prosecution
- can have separate civil lawsuit and criminal prosecution for the same incident, if you lose one case can win other
- regulatory: separate civil lawsuit and regulatory prosecution
- contract law: combined tort and contract actions in one civil suit
types of torts used in environmental issues
- nuisance
- trespass
- rule in rylands v fletcher
- negligence
- riparian rights
other torts
- assault
- defamation
- false arrest/false imprisonment
- more
tort law and the environment
- not intended to protect the environment for the benefit of the public and future gens
social role of tort law
- used to be all we had for environmental law
- now legislation has filled role since 1970s
- can it still address environmental issues?
tresspass
- interference with anothers possession of land
- enter or place anything on another’s land or cause object to cross on anothers land
nuisance
- physical injury to land (indirect)
- substantial and unreasonable interference (indirect) with anothers use and enjoyment of land
- smells, noises, vibrations, pollution (not one off events)
- context is everythin
can a first nation sue in nuisance
- not not determinative that the law nas not recognized particular claim
- its unprecedented to allow unrecognized aboriginal rights to ground common law claims in tort
0 a change in law to permit it woudlnt be a change in the nature in common law development - civil claim discloses no reasonable cause of action in respect to claims of nuisance
- interfere with riparian rights bc based on aboriginal title and other aboriginal rights
rule in rylands v fletcher
- used often, rarely works
- substance escapes from your property resulting from a non natural use of property and harms anothers property
- hard to know what is non natural
negligence
- harmed someone (injury) and caused (foreseeable) harm to someone within duty of care and fell below standard of care - liable in negligence
- ex. contaminated drinking waster case could have been tort case
sydney tar ponds class action
- one of the most contaminated sites in canada
- provincial and federal crown corps
- airborne emissions - contaminated property and health impacts
- common law suit by affected residents via class actions
certification of class action
- representative plaintive: win or lose for all
- many poeple with similar injuries from same causal incident
- must show cuase fo action
- must have common legal issues among class members
- class action must be fair and efficient way to resolve
remedies sought by residents (tar ponds)
- removal of contaminants
- medical monitoring
- damages for nuisance and battery
class action certification appealed by government
- NS court of appeal 2013: no casue of action in trespass, battery, rylands v fletcher but yes to nuisance
- harm in nuisance never common enough to meet requirement of class action
- SCC appeal declined in 2015
smith v inco 2011
- rule in rylands v fletcher: refinery = natural use
- nuisance: injury to land = health impacts, no proven impacts so nuisance
- evidence indicated taht inco complied with regulations
- governance probelm not legal
