Victorian Principles For The 1990s:
Tock v. St. John’s Metropolitan Area Board
Ghislain Otis*
Synopsis
The Tock Case in Context
Introduction
I.
II. The Supreme Court’s Continuing Support for the Victorian Rule
m. The Possibility of a Charter Challenge
Conclusion
* Faculty of Law, Universit6 Laval, Qu6bec.
McGill Law Journal 1990
Revue de droit de McGill
1990]
Introduction
COMMENTS
Canadian courts have traditionally feared that extensive government liabil-
ity in tort might harm the general interest in the efficient discharge of important
statutory functions by interfering unduly with government decision-making and
draining public resources. Recent decisions by the Supreme Court of Canada
dealing with the issue of government liability illustrate the continuous and dif-
ficult process of reconciling government thrift and efficiency with the individual
interests of the victims of injurious government activities.’ In one of these
important cases, Tock v. St. John’s Metropolitan Area Board,2 the Supreme
Court was called upon to reexamine the relevance and scope in Canada of the
defence of statutory authority with regard to a claim in nuisance against a public
body. The courts have held consistently that the infringement of an individual’s
interest in land amounting to nuisance, that is a substantial interference with the
use or enjoyment of the individual’s land,3 is not actionable if it is the “inevi-
table” incident of an activity authorized by statute.4 The activities to which the
principle has been applied range from the construction and maintenance of var-
ious public works5 to the spraying of forests.6 In Tock, the Supreme Court unan-
imously upheld the continued existence of the defence and concluded that the
defendant failed to meet the requirements for its application. The significance
of this decision lies in the unwillingness of Canada’s highest court to do away
with a much-maligned rule of immunity with respect to nuisance-creating activ-
ities authorized by statute. In this comment, it is shown that despite its readiness
to reduce the ambit of the defence, the Supreme Court continues to support the
utilitarian policy underlying it. It is argued that the Court should have aban-
doned the defence thus adapting the law to the demands of contemporary
Canadian society. The possibility of a Charter challenge of the immunity is also
investigated briefly.
I.
The Tock Case In Context
The Tock case involved a sadly common scenario. On a day of heavy rain-
fall, the basement of Linda and Neil Tock was flooded as a result of a blockage
of a municipal storm sewer. Their property incurred substantial damage which
led to a suit against the St-John’s Metropolitan Area Board responsible for the
operation of the water and sewer system in the area. The basis for the claim was
‘For the latest cases, see Laurentide Motels Ltd v. Beauport (City of), [1989] 1 S.C.R. 705; Just
v. British Columbia (7 December 1989), no. 20246 [unreported]; Rothfield v. Manolakos (7
December 1989), no. 20740 [unreported].
2(7 December 1989), no. 20267 [unreported] [hereinafter Tock].
3See generally M. Brazier, Street on Torts, 8th ed. (London: Butterworths, 1988) at 312-327.
4For an authoritative study of the defence of statutory authority, see A.M. Linden, “Strict
5For a comprehensive review of the cases, see Linden, ibid..
6Friesen v. Forest Protection Ltd (1978), 39 A.P.R. 146, 22 N.B.R. 155 (Q.B.).
Liability, Nuisance and Legislative Authorization” (1966) 4 Osgoode Hall L.J. 196.
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threefold. It was first alleged that the Board was liable for negligence in the con-
struction and maintenance of the storm sewer. The plaintiffs also invoked the
rule in Rylands v. Fletcher7 as well as the tort of nuisance.8 The question of lia-
bility for negligence, however, was not raised on the appeal to the Supreme
Court. Their Lordships unanimously found that the rule in Rylands v. Fletcher
had no application to the case. They took the view that the provision of a water
and sewer system is such a valuable public service that it cannot be regarded as
a “non-natural” use of land within the meaning of the rule.9 On the other hand,
the justices all agreed that the flooding of the Tocks’ basement constituted an
interference with their property so substantial as to amount to a nuisance at
common law. Since the defendant Board purported to be acting pursuant to the
Municipalities Act,’0 the outcome of the case turned on whether the defence of
statutory authority was available to the Board to override the common law
rights of the plaintiffs.
The Supreme Court had to resolve the issue in the context of mounting dis-
satisfaction with the immunity invoked by the defendant. In restricting common
law rights with respect to activities which are statutorily authorized, judges
claim merely to be obeying legislative commands, even when it is obvious that
the legislature has not addressed the issue of civil liability.” Courts have thus
been able to ascribe any injustice resulting from the immunity to the will of a
sovereign Parliament imposed on reluctant courts. 2 Although it was felt by
some commentators that the defence was moribund, 3 recent rulings in Canada 4
7(1868), L.R. 3 H.L. 330.
SThe Newfoundland Court of Appeal dismissed the claim against the Board on the basis of the
defence of statutory authority: Tock and Tock v. St. John’s Metropolitan Area Board (1986), 190
A.P.R. 133, 62 Nfdl & P.E.I.R. 133.
9Supra, note 2 at 4-6, La Forest J., and 1-2, Wilson J.
‘S.N. 1979, c. 33, s. 154 (1), (2), (3).
“It was correctly observed by one commentator that “[T]he statutes did not and still do not, deal
expressly with this question [of tort liability], an omission which is totally injustifiable”: see K.
Davies, Law of Compulsory Purchase and Compensation, 4th ed. (London: Butterworths, 1984)
at 169. Another writer noted: “[Tihe technique of granting statutory immunity despite, rather than
because of, the words of the statute has a long, if not distinguished history”: see S. Tromans,
“Nuisance – Prevention or Payment” (1982) Can. L.J. 87 at 107. See also Linden, supra, note 4
at 220.
12Thus, Lord Blackburn in London, Brighton and South Coast Railway Company v. Truman
(1885), 11 H.L. 45 at 60 justified displacing common law rights by insisting that “effect must be
given to the intention of the legislation. No doubt when compensation is not given to those inter-
ested in the neighbouring land, this is, as against them, harsh legislation”. See also C.P.R. v. Roy,
[1902] A.C. 220 at 231.
(Toronto: Butterworths, 1968) 320 at 372. See also Linden supra, note 4 at 202.
13J.P.S. McLaren, “Nuisance in Canada” in A.M. Linden, ed., Studies in Canadian Tort Law
14Torino Motors (1975) Ltd v. Kamloops (City of), [1988] 6 W.W.R. 762 (B.C.C.A.).
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CHRONIQUE DE JURISPRUDENCE
and in England” demonstrated its continuing vitality. It is now widely acknowl-
edged that the doctrine of statutory authority serves as a vessel for a long-
standing judicial policy of giving priority over individual rights to the collective
benefit to be drawn from the unhindered and cost-efficient functioning of val-
uable public services. 6 In Allen v. Gulf Oil Refineiy Ltd, 7 Lord Roskill aptly
summed up a long series of judicial pronouncements by observing that the phi-
losophy behind the doctrine of statutory authority is that “the lesser individual
right must yield to the greater public interest”.1″ The burden of nuisance-causing
activities of public bodies carried on in the interest of the community must lie
where it falls, namely, on the shoulders of the unfortunate individual. Lord
Denning has rightly denounced the “injustice of the Victorian rule”, 9 and it has
become apparent that this immunity is founded upon a utilitarian calculus of
costs and benefits that may no longer be suitable to modem conditions. The cau-
tious attitude of the judiciary might have been justified in the Victorian era. It
is possible that there was at that time a need to protect fledgling industries and
underfunded public bodies which played an important pioneering role in social
and economic development.2″ This rationale for the defence, however, does not
appear as pressing at the close of the 20th century. An economically and tech-
nologically developed community can today more easily provide redress to the
victims of nuisances which are the inevitable result of the provision of services
benefitting the public at large.
The problem could also be viewed in its broader contemporary context.
The recent extension of government liability, especially for negligent exercise
of discretionary powers,21 conveys a growing sense that individual interests
ought not to be too lightly sacrificed to governmental thrift and efficiency. The
availability of monetary redress for the infringement of an individual’s consti-
tutional rights reinforces this trend.’ Moreover, the idea of development,
regardless of its effect on the environment and the quality of life of the citizens,
‘5Allen v. Gulf Oil Ltd, [1981] 1 All E.R. 353 (H.L.); Tate & Lyle Industries v. Greater London
Council, [1983] 1 All E.R. 1159 (H.L.).
16 H.W.R. Wade, Administrative Law, 5th ed. (Oxford: Clarendon Press, 1982) at 691; C. Harlow,
Compensation and Government Tort (London: Sweet & Maxwell, 1982) at 8-11; A.M. Linden,
“Public and Private Law: the Frontier from the Perspective of a Tort Lawyer” (1976) 17 C. de D.
831 at 848.
17Supra, note 15.
“5lbid. at 365.
19Lord Denning, The Closing Chapter (London: Butterworths, 1983) at 148-49.
20Linden, supra, note 4 at 199-200; J.P.S. McLaren, “Nuisance Law and the Industrial
Revolution – Some Lessons from Social History” in F.M. Steel & S. Rodgers-Magnet, eds, Issues
in Tort Law (Toronto: Carswell, 1983).
2 1See cases cited supra, note I and also Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2.
22M.L. Pilkington, “Damages as a Remedy for Infringement of the Canadian Charter of Rights
and Freedoms” (1984) 62 Can. Bar Rev. 517; K. Cooper-Stephenson, “Tort Theory for the Charter
Damages Remedy” (1988) 52 Sask. L. Rev. 1. See in particular, Lord v. Allison (1986), 3 B.C.L.R.
(2d) 300 (S.C.) and R. v. B.B. (1986), 69 A.R. 203 (Alta Prov. Ct).
McGILL LAW JOURNAL
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is increasingly under attack. It must be remembered that typical examples of
injuries potentially covered by the defence of statutory authority include the
emission of smells, noise, fumes and smoke; the degradation of land through
flooding; the contamination of soil and water by toxic substances; and the
destruction of crops and other vegetation. 3 Canadian society is now more anx-
ious that public authorities, just like private businesses, should not carry on
activities which are substantially detrimental to the environment without being
prepared to pay for it and take, whenever feasible, measures to minimize the
damage.
The common law is not static. As a distinguished New Zealand judge
wrote: “Of its very nature the common law is an instrument of principled justice
capable of fresh life and vigour.”23A In the same vein, the High Court of
Australia has recently emphasized its responsibility “to reconsider in appropri-
ate cases common law rules which operate unsatisfactorily or unjustly.””23 The
Tock case afforded the Supreme Court the opportunity to reassess, in the light
of modem conditions, the policies underlying the defence of statutory authority.
It was open to their Lordships to strike a balance between individual rights and
collective interests that would reflect the values and priorities of the 1990s. But
as is explained in the next section, the Court has on the whole shown unfailing
adherence to the Victorian rule.
II. The Supreme Court’s Continuing Support For The Victorian Rule
Separate opinions were written by three justices thus revealing the diver-
gence of views within the Court as to precisely where the line should be drawn
between collective responsibility and individual sacrifice. Justice Wilson,
speaking for herself and two other members of the Court,24 rejected at the outset
the idea that municipalities exercising statutory authority should be made liable
for nuisance in the same way as private individuals. 5 She had no difficulty in
defending the doctrine of statutory authority with regard to inevitable damage
as
a happy judicial compromise between letting no one who has suffered damage
as a consequence of the statutorily authorized activities of public bodies recover
and letting everyone so suffering damage recover.26
23See generally J.P.S. McLaren, “The Law of Torts and Pollution” (1973) Lectures L.S.U.C. 309;
B. Morrison, “The Nuisance Action: A Useful Tool for the Environment Lawyer” (1974) 23
U.N.B.LJ. 21; P.S. Elder, “Environmental Protection through the Common Law” (1973) 12 West.
Ont. L. Rev. 107.
23ASir Robert Cooke, “Dynamics in the Common Law” in Ninth Commonwealth Law
Conference: Papers (Auckland: C.C.H., 1990) 1 at 5.
23 Trident General Insurance Co. v. McNiece Bros Pty Ltd (1988), 165 C.L.R. 107 at 118.
24Justices Lamer and L’Heureux-Dub.
25Supra, note 2 at 2 of her reasons for judgment.
261bid. at 14.
1990)
COMMENTS
After a review of early English authorities, 7 she concluded that the availability
of the defence depends on the wording of the statute pursuant to which the
defendant body is acting. If the enabling legislation requires or authorizes a
body to carry on an activity in a specified manner, or at a specified location, no
liability can arise from a nuisance inevitably flowing from such a “mandatory”
authorization.’ But when a statute is “permissive”, in that it gives the body wide
discretion as to how and where it should operate, it must be construed as requir-
ing strict compliance with common law rights.29 In those cases, the relevant test
of “inevitability”
is that laid down in the famous case of Manchester v.
Farnworth0 where the House of Lords stated that:
… the criterion of inevitability is not what is theoretically possible but what is pos-
sible according to the state of scientific knowledge at the time, having also in view
a certain common sense appreciation, which could not be rigidly defined, of prac-
tical feasibility in view of situation and expense. 3 1
Justice Wilson characterized this test as one of negligence.32 In the case at
hand, she found that the Board could not rely on the defence since the
Municipalities Act conferred discretion as to how and where the sewer system
could be constructed and operated. It was consequently not open to the defend-
ant to plead an absence of negligence on its part in the construction and oper-
ation of the system. Her Ladyship was ready to distance herself from recent
Canadian authorities and to use this mandatory/permissive distinction to restrict
the scope of government immunity. 3 But she unambiguously declined to go fur-
ther in the direction of securing redress for those injured by nuisance-generating
public services. Justice La Forest, in his concurring reasons,’ agreed that the
defence of statutory authority should not be abolished, even if he was critical
of the way it has been applied traditionally. However, his approach to the prob-
lem of liability for nuisances created by public bodies differs markedly from
27R. v. Pease (1832), 4 B. & Ad. 30, [1824-34] All E.R. Rep. 579; Vaughan v. Taff Valley
Railway Co. (1860), 29 L.J. Ex. 247, [1843-60] All E.R. Rep. 474; Hammersmith and City Railway
Co. v. Brand (1869), L.R. 38 Q.B. 285; Geddis v. Proprietors of the Bann Reservoir (1878), 3 A.C.
430; Metropolitan Asylum District v. Hill (1881) 6 A.C. 193; London, Brighton and South Coast
Railway Co. v. Truman, supra, note 12; Manchester (City of) v. Farnworth, [1930] A.C. 171.
28Supra, note 2 at 13 of her reasons for judgment.
291bid. at 13-14.
30Supra, note 27.
311bid. at 183.
32Supra, note 2 at 13-14 of her reasons for judgment.
33Recent cases have not consistently applied the mandatory/permissive dichotomy. See for
example, Portage La Prairie (City of) v. B.C. Pea Growers Ltd, [1966] S.C.R. 150; Royal Ann
Hotel Co. v. Ashcraft, [1979] 2 W.W.R. 462 (B.C.C.A.); Temple v. Melville (City of) (1979), [1980]
105 D.L.R. (3d) 305 (Sask.C.A.); Campbellton (City of) v. Gray’s Velvet Ice Cream Ltd (1981),
[1982] 127 D.L.R. (3d) 436 (N.B.C.A.); Buysse v. Shelburne (Town of) (1984), 6 D.L.R. (4th) 734
(Ont. Div. CO; Torino Motors (1975) Ltd, supra, note 14.
34Mr. Justice La Forest wrote for himself and Chief Justice Dickson.
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that of Justice Wilson. He candidly conceded that the traditional argument of
legislative intent used to justify the restriction of liability represents no more
than a convenient vehicle for a judicial policy of favouring the general interest
in public utilities and services to the detriment of individual rights.35 Refusing
to don “the cloak of a soothsayer to plumb the intent of the legislature”,36 he
proposed to “reformulate the law in more functional terms” 37 in order to meet
modem conditions and values. By virtue of this functional approach, the appli-
cable principles are to be articulated overtly through a balancing exercise
designed to effect a fair apportionment of the burden of nuisances occasioned
by the provision of public services, thus minimizing the injustice for the injured
party. In each case it will be necessary to ask whether, given all the circumstan-
ces, it is reasonable to refuse to compensate the aggrieved party for the damage
he or she has suffered. In accordance with this pragmatic method, Justice La
Forest dismissed the traditional mandatory/permissive dichotomy. In his
opinion:
Whatever statutory route is taken will result in the construction of sewage and
drainage facilities in the same locations, and the nature of the authorization cannot,
in all reason, have any bearing on the question whether compensation is owed, or
is not owed, for damage suffered as a consequence of the operation of the sewer.39
Justice La Forest recognized that the mandatory/permissive dichotomy
constitutes yet another judicial device that obfuscates the true nature of the bal-
ancing process involved.” Similarly, the fact that damage inevitably results
from the operation of public works cannot, in his view, militate in favour of
immunity.4 It must still be determined if asking the individual to support the
cost of an unavoidable nuisance is reasonable in the circumstances.42 It is appar-
ent that Justice La Forest’s objective was not to abandon the cost/benefit calcu-
lus but to demystify it. His Lordship should be commended for facing the real
35Supra, note 2 at 10 of his reasons for judgment. Further in his reasons, Mr. Justice La Forest
writes: “The truth is that there is an air of unreality and contrivedness to the defence of statutory
authority in this context, however one may seek to rationalize it. Where the statute in question does
not expressly exempt a body for damages in nuisance, or, in the alternative, does not provide for
a compensation scheme of its own or contain other clear legislative indications, I doubt that div-
ination of an unexpressed intent of the legislature can shed much light on the question whether the
person who has suffered damage should be denied compensation.” Ibid. at 15.
36 bid. at 18.
371bid. at 15.
3 Ibid. at 19.
391bid. at 16 and at 15.
4He had observed earlier, at page 11, that the mandatory/permissive dichotomy was one of “a
number of techniques developed by the courts for eliciting the supposed intent of the legislature”.
41His Lordship quite properly remarked that “[T]he fact that the operation of a given system will
inevitably visit random damage on certain unfortunate individuals among the pool of users of the
system does not tell us why those individuals should be responsible for paying for that damage.”
Supra, note 2 at 16 of his reasons for judgment.
42Ibid. at 18-19.
1990]
CHRONIQUE DE JURISPRUDENCE
policy issues squarely. It is by no means certain however, that his proposed solu-
tion is satisfactory. The practical application of his method caused him to accept
the possibility of government immunity. Although he was clearly intent on plac-
ing significant restrictions on such immunity, he insisted that his approach does
not abrogate the defence:
This does not denude the defence of statutory authority of all vigour. If… the
legislature has authorized the construction of a work at a particular place, the
owner of neighbouring land cannot complain if that work is built there. Similarly,
if the legislature authorizes the construction of a work, such as a sewage system,
the adjacent landowners cannot complain of ordinary disturbances or loss of
amenity that necessarily results to them from its construction or operation if it is
built and operated with all reasonable care and skill. To permit action by a land-
owner in such circumstances (assuming this can be regarded as a nuisance) would
in effect be to deny the statutory mandate.43
He thus suggested that immunity should be accorded in the case of ongoing
nuisances which affect several individuals and which necessarily derive from
the construction or operation of public works that have been authorized by stat-
ute.44 By contrast, isolated nuisances inflicting heavy random damage on a sin-
gle individual would attract the liability of a public body even if its activity is
statutorily mandated a.4
In the latter situation, Justice La Forest thinks govern-
mental liability is reasonable since denying redress would have the effect of vis-
iting a disproportionate share of the cost of the beneficial service on the hapless
individual who suffered the damage. Applying this reasoning to the Tocks’
claim, he concluded that the flooding of property attributable to a random block-
age of a municipal sewer system constitutes an instance of a “calamitous event”
the cost of which must be shouldered by the community. The cost-benefit anal-
ysis behind this approach can easily be discerned. The public expense required
to compensate isolated nuisances is likely to be limited and can be treated as a
running cost of a public service. 46 Furthermore, because there is no ongoing tor-
tious conduct, the continued delivery of the service is not threatened by the pos-
sibility of the victim obtaining an injunction to block the activity. On the other
hand, government responsibility for continuing nuisances affecting several indi-
viduals could prove costly to the community. First, the financial burden of com-
pensating the injured parties might exert pressure on government funds. Second,
there would be a real risk that a court order enjoining the public body from pur-
suing its tortious activity would thwart a socially desirable service.
Justice La Forest has by no means departed dramatically from the
Victorian utilitarian creed. He has simply tempered its harshness in some cases.
But it is difficult to understand why the victims of nuisances that are not isolated
43Ibid. at 19.
“4Ibid. at 21.
451bid.
461bid. at 17-18.
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should be left without a remedy. Are they not also paying a disproportionate
price in the name of the greater common welfare? Why should government
escape liability in relation to activities which are particularly injurious in the
sense that they afflict more victims over a more protracted period of time?
Justice Sopinka was unable to subscribe to the views of his colleagues and
therefore set forth his own reasons for judgment. He rejected both the
mandatory/permissive distinction propounded by Justice Wilson and the reason-
ableness test advocated by Justice La Forest as being too restrictive of the
defence of statutory authority. In his opinion, these solutions would open the
floodgates and expose public bodies to excessive liability.47 Whenever work is
carried out in accordance with a statute, whether permissive or mandatory,
immunity should be given to the defendant who can demonstrate that the nui-
sance was inevitable in that there was no other practically feasible method of
carrying out the work 8. However, his Lordship held the Board liable because
it had failed to meet this test of inevitability. In summary, although a majority
of the Supreme Court felt sufficiently uncomfortable with the existing rule of
immunity to search for means of attenuating it, their Lordships were not pre-
pared to make an unequivocal break from it.
The subsisting scope of the defence of statutory authority may indeed be
more considerable than it first appears. Despite their differences over other
issues, a clear majority of the Court in Tock agreed that a claim of immunity can
only be allowed if all reasonable care has been used in the operation authorized
by statute. But in several cases this limitation on the defence might well prove
difficult for the courts to enforce. The planning and management of public ser-
vices may involve decisions dictated by financial, social and political factors.
The building and operation of a public work, for instance, may be subject to
budgetary allocations and constraints as to the availability of resources. In order
to increase funds for the maintenance of roads a municipality could, in a bona
fide exercise of discretion, deem it expedient to reduce the funds for the inspec-
tion of the sewer or water system. In the context of suits based on the tort of
negligence, the courts would generally be expected to refrain from using tort
principles to review the reasonableness of government decision-making with
respect to such difficult policy matters.49 The problem of justiciability that has
given rise to the policy/operational distinction in the law of negligence will
almost certainly have to be addressed in the application of the defence of stat-
utory authority in connection with nuisance.5” It is difficult to see how the judi-
47Supra, note 2 at 1-2 of his reasons for judgment.
48lbid. at 4.
49See Kamloops (City of) v. Nielsen, supra, note 21 and cases cited supra, note 1.
510 n this important policy/operational dichotomy, see in particular: P.P. Craig, “Negligence in
the Exercise of a Statutory Power” (1978) 94 L.Q. Rev. 428; S.H. Bailey & M.J. Bowman, “The
Policy/Operational Dichotomy – A Cuckoo in the Nest” (1986) Can. L.J. 430; D. Cohen & J.C.
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COMMENTS
ciary could consider themselves better equipped to adjudicate upon the merits
of policy-making when the question of reasonable care arises in a suit for nui-
sance as opposed to negligence per se.
The Supreme Court in Tock has not taken due account of modem Canadian
values in ruling on the impact of statutory public services on common law
rights. Their Lordships could have regarded legislation providing for public ser-
vices as running in tandem with the common law of nuisance. The existence of
legislative authority need not lead incontrovertibly to the exclusion of legal
redress. It would be consistent with sound policy to hold that common law
rights are only displaced to the extent required to enable the public body to ful-
fill its statutory functions without hindrance. An injunction should not interfere
with a body’s operations where they conform strictly to relevant statutory pre-
scriptions. On the other hand, common law rights should be upheld where the
statutory objective of securing a valuable public service is not undermined. This
is the case when the right to compensation is the only common law right to sur-
vive statutory authority so that there is no threat of judicial disruption of the ser-
vice”. It is submitted that this partial reconciliation of statutory powers and the
common law constitutes a true compromise between individual rights and col-
lective interests in the 1990s.
In view of the regrettable timidity of the Supreme Court, Canadian courts
cannot be expected in the short term to abandon openly the rule of immunity.
The Tock decision should, however, encourage legislatures to address the issue
of common law rights explicitly when entrusting public authorities with the exe-
cution of public works likely to give rise to nuisances. Unfortunately, experi-
ence shows that legislative recommendations of this nature cannot realistically
be expected to be followed.
What avenue is then available to a nuisance victim when faced with a gov-
ernment body that seeks refuge in the defence of statutory authority? In some
cases, the courts can be trusted to pay lip service to the defence while having
recourse to such techniques as the mandatory/permissive distinction or the inev-
itability test in order to avoid granting immunity. The injured party should also
consider a constitutional attack against the defence. The next section deals
briefly with this point.
Public Law” (1986) 64 Can.
Smith “Entitlement and the Body Politic: Rethinking Negligence’
Bar Rev. 1; J.A. Smillie, “Liability of Public Authorities for Negligence-985) 23 U.W.O. L. Rev.
213; P.P. Craig, “Negligence, Discretionary Powers and the Privy Council”
8) 104 L.Q. Rev.
185; P.W. Hogg, Liability of the Crown, 2d ed. (Toronto: Carswell, 1989) at 123-30.
51For similar proposals, see in particular Linden, supra, note 4 at 215-16 and Tromans, supra,
note 11 at 103-08.
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M. The Possibility of a Charter Challenge
A challenge to the immunity may be based upon section seven of the
Canadian Charter of Rights and Freedoms52 which guarantees everyone the
right to “life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice”. It was
established in R.W.D.S.U. v. Dolphin Delivery Ltd,53 that the Charter applies not
only to statutes but also to rules of common law when there is governmental
reliance on such rules.’ The defence of statutory authority must therefore con-
form to Charter dictates when it is invoked by public bodies. However, it would
appear that in view of the ruling in Irwin Toy Ltd v. Attorney General for
Quebec,55 no serious constitutional issue could be raised with respect to a large
number of government-created nuisances. In that decision, the Supreme Court
narrowed the ambit of section seven considerably by holding that it gives no
right to corporations as such56, and that it does not afford any direct protection
to property or purely economic rights.57 Nuisances flowing exclusively from
physical injuries to property therefore do not affect the security of the person or
any other right enshrined in section seven. But the same can probably not be
said of nuisances involving an impairment of health or serious threat of physical
injury to individuals. There is no question here of purely economic rights.
Indeed, the majority of the Supreme Court in R. v. Morgentaler5″ took the view
that state interference with physical health may in some circumstances infringe
an individual’s right to security of the person within the meaning of section
seven 9.
A cogent argument could also be made to the effect that the denial of any
appropriate redress to the victim of a nuisance affecting the security of the per-
son contravenes the substantive principles of fundamental justice. The Supreme
Court has so far attached considerable weight to common law principles in
ascertaining the contents of fundamental justice.’ This approach at first seems
to bolster the constitutionality of the defence of statutory authority since the
52Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), (1982),
c. 11 [hereinafter Charter].
51[1986] 2 S.C.R. 573.
54Ibid. at 599.
55[1989] 1 S.C.R. 927.
56Ibid. at 1002-03.
571bid. at 1003. On property rights and the Charter, see J. McBean, “The Implications of
Entrenching Property Rights in Section 7 of the Charter of Rights” (1988) 26 Alta. L. Rev. 548;
R.G. Doumani & J.M. Glenn, Note, “Property, Planning and the Charter” (1989) 34 McGill L.J.
1036.
51[1988] 1 S.C.R. 30.
59Ibid. at 56 (Dickson C.J.), 90 (Beetz J.) and 173 (Wilson J.).
6See for example Reference Re Section 94(2) of the B.C. Motor Vehicle Act, [1985] 2 S.C.R.
486; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Potvin, [1989] 1 S.C.R. 525.
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CHRONIQUE DE JURISPRUDENCE
resulting immunity is rooted in the common law tradition. But traditional com-
mon law solutions are not the ultimate yardstick of fundamental justice. The
Charter does not constitute a purely backward-looking instrument. On the con-
trary, it is, as the Supreme Court has itself repeatedly stated, a modem evolu-
tionary document capable of meeting the changing needs and values of
Canadian society.6′ As was argued above, a modem conception of justice would
seem to require that the collectivity take responsibility for the harm suffered by
nuisance victims and indemnify them. It can be argued that the elimination of
all form of redress for government-created health injuries is arbitrary since it
completely fails to achieve a proper balance between individual rights and col-
lective interests. Canada’s highest court has indicated that arbitrary governmen-
tal action may offend the principles of fundamental justice.62
In keeping with the practice of the Supreme Court, it is also appropriate to
look at other legal systems for guidance as to the requirements of fundamental
justice.63 One of the most highly respected systems in the field of government
liability is undoubtedly that developed in France as part of its sophisticated
administrative law regime. Distinguished common law scholars have looked to
France as a source of inspiration in their quest for a just system of public lia-
bility.’ French law has developed a doctrine referred to as 6galit devant les
charges publiques.65 This principle of equality of all citizens in bearing public
burdens is based on the recognition that what is done in the general interest,
even if done lawfully, may still give rise to a right to compensation when a sub-
stantial burden falls on particular persons. Thus, substantial damage attributable
to public works may fall within the purview of the 6galit rule.66
It is submitted that both a careful consideration of the evolution of the law
of public liability in Canada and a comparative law approach should lead the
Canadian courts to cast aside the traditional rule of immunity as being at odds
with fundamental justice. By extending a citizen’s access to monetary redress,
they would not be conferring purely economic rights despite the presence of a
61Re B.C. Motor Vehicle Act, supra, note 60 at 509; Law Society of Upper Canada v. Skapinker,
62R. v. Lyons, [1987] 2 S.C.R. 309 at 409ff; R. v. Jones, [1986] 2 S.C.R. 284 at 303 (La Forest
[1984] 1 S.C.R. 357 at 366-67.
J.).
63See for example R. v. Lyons, ibid.; R. v. Beare and R. v. Potvin, supra, note 60.
64For a sample of academic writings see Wade, supra, note 17 at 665 and 687; J.D.B. Mitchell,
“The State of Public Law in the United Kingdom” (1966) 15 Int. & Comp. L.Q. 133; J.F. Garner,
“Public and Private Law” (1978) P.L. 322; C.J. Hamson, “Escaping Borstal Boys and the Immunity
of Office” (1969) Can. L.J. 272.
65See generally P. Devolv6, Le principe d’ galitg devant les charges publiques (Paris: L.G.D.J.,
1969).
6 6Ibid. at 289-96. See also R. Chapus, Droit administratif gingral, vol. 2, 4th ed. (Paris:
Montchrestien, 1988) c. 3. A distinction is generally made, however, between users of public works
and non-users. In the case of users, the public body may in some cases escape liability by showing
that no fault was committed.
McGILL LAW JOURNAL
[Vol. 35
pecuniary element. It is not realistic to separate neatly an individual’s right to
security of the person in relation to health from the remedial measure necessary
to give practical meaning to such an intangible right.67
It will be left to a public body defending the constitutionality of the immu-
nity to show that it represents a “reasonable limit” for the purpose of the lim-
itations clause contained in section one of the Charter. This may be a difficult
task given that the courts will be loath to regard as reasonable governmental
action which does not accord with fundamental justice.” Pursuant to the test
laid down in R. v. Oakes69 and its progeny,” it will have to be established that
the immunity serves an objective “of sufficient importance to warrant overrid-
ing a constitutionally protected right or freedom”.7
The goals of government thrift and efficiency fostered by the defence
should not be belittled. The Supreme Court has nonetheless voiced reservations
as to whether factors related primarily to cost and convenience could justify set-
ting aside the fundamental rights protected by section seven72. Even when the
67
1n Irwin Toy, supra, note 55, the Supreme Court has certainly not ruled out a distinction
between rights that are purely economic and rights that simply have some economic component.
The Chief Justice thus wrote at 1003:
The intentional exclusion of property from s. 7, and the substitution therefor of “secu-
rity of the person” has, in our estimation, a dual effect. First, it leads to a general infer-
ence that economic rights as generally encompassed by the term “property” are not
within the perimeters of the s. 7 guarantee. This is not to declare, however, that no right
with an economic component can fall within “security of the person”. Lower courts
have found that the rubric of “economic rights” embraces a broad spectrum of interests,
ranging from such rights, included in various international covenants, as rights to social
security, equal pay for equal work, adequate food, clothing and shelter, to traditional
property –
contract rights. To exclude all of these at this early moment in the history
of Charter interpretation seems to us to be precipitous.
There are cases where the distinction has been applied in order to protect rights with some eco-
nomic content. See for example: Wilson v. B.C. Medical Services Commission (1988), [1989] 53
D.L.R. (4th) 171 (B.C.C.A.); Re Maritime Medical Care Inc. and Khaliq-Kareemi (1989), 57
D.L.R. (4th) 505 (N.S.C.A.). In Whitbread v. Walley (1989), 51 D.L.R. (4th) 509 (B.C.C.A.), the
Court rejected the argument that section seven protects an “economic interest that is based on a
loss of life, liberty and security of the person”; ibid. at 521. Assuming this ruling is correct, a point
which is not conceded, it must be pointed out that in Whitbread the actual loss of security of the
person was not caused by government. The situation is quite different when the state at once
directly inflicts a tortious health injury and denies all effective redress to the victim of its harmful
conduct.
68See T. Christian, “The Limited Operation of the Limitations Clause” (1987) 25 Alta L. Rev.
264 at 273-74.
55; United States of America v. Cotroni, [1989] 1 S.C.R. 1469.
69[1986] 1 S.C.R. 103.
7See in particular Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; Irvin Toy, supra, note
71R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 at 352. See also Oakes, supra, note 69 at 138.
72Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at 218-19; Reference
Re Section 94(2) of the B.C. Motor Vehicle Act, supra, note 60 at 518.
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COMMENTS
governmental objective is sufficiently important, there must be proportionality
between that objective and the means employed to achieve it.73 The exclusion
of all legal remedies with regard to statutorily authorized nuisances endangering
health does not seem to interfere as little as reasonably possible with constitu-
tional rights. By denying injunctive relief but maintaining the right to compen-
sation, the law could attain the goal of safeguarding the continuity of public ser-
vices while interfering in a less drastic way with constitutionally guaranteed
rights. It therefore appears fair to conclude that a Charter challenge of the
defence of statutory authority should be taken seriously by the courts in the case
of nuisances affecting the health of individuals.
Conclusion
The dispute that led to the Tock decision raised the old problem of
adjusting the general law of tort to the particular situation of government bodies
exercising statutory powers in the general interest. Dating back to the 19th cen-
tury, the defence of statutory authority has been increasingly perceived as unjust
and anachonistic insofar as it denies compensation to the victims of serious nui-
sances. The Supreme Court in Tock should have seized the opportunity to mod-
ernize the law by reconciling the need for continued public services and the
rights of injured citizens. This could have been done by recognizing the entitle-
ment of nuisance victims to monetary compensation while allowing public bod-
ies to proceed with their important functions whenever they are acting in
accordance with statute. Even though a majority of the Court in Tock were anx-
ious to diminish the scope of the immunity, they were not willing to do away
completely with Victorian perceptions of the general interest.
The diversity of opinions expressed in the Tock ruling makes it very diffi-
cult for public bodies to determine when the defence of statutory authority can
be invoked successfully. Yet at the same time, persons suffering nuisances at the
hand of public bodies can still be denied a remedy on the basis of an ill-defined
doctrine. Faced with the prospect, individuals whose health has been affected by
a government-created nuisance should turn to the Charter. Failing to redress tor-
tious health injuries caused by the state probably infringes the right to security
of the person in a way that violates fundamental justice within the terms of sec-
tion seven. The Charter, as an instrument of modem public law, should help to
bring this area of government liability in line with contemporary Canadian
values.
730akes, supra, note 69 at 139. See also the cases supra, note 70 in which the Supreme Court
appears to have relaxed the proportionality test that was put forward in Oakes.
