Dear Colleagues,

 

The Ontario Court of Appeal's decision in  Smith v. Inco Limited, 2011 ONCA 628 reversing 2010 ONSC 3790

 

 

should be of some interest to those teaching, or otherwise interested in the subject.

 

The reasons contain helpful discussions of the scope of private nuisance, Rylands v. Fletcher, and strict liability in tort in Canada. Amongst other things. the court rejected the argument (made by Linden & Feldthusen, and others) that there should be strict liability in tort for "extra-hazardous" activities crated by judicial refinement of tort law, stating that development should be left to the legislature (paras. 78, 85-93.)

 

If leave to appeal is sought and granted, it will be interesting to see how the Supreme Court of Canada balances the Ontario Court of Appeal's rejection of the enterprise created risk argument with its (seeming) acceptance of that argument as part of the rationale for vicarious liability. That comparison does not appear in the reasons.

 

Tthe Court of Appeal set aside the plaintiffs' judgment and dismissed the action - para 3: "The appeal must be allowed and the action dismissed.  In our view, the claimants failed to establish Inco’s liability under either private nuisance or the rule in Rylands v. Fletcher. Alternatively, and assuming the elements of either or both causes of action were made out, the claimants failed to establish any damages."

 

Cheers,

 

David Cheifetz