Dear Colleagues;
As a common lawyer I must say the gap between my system and the "civil" law (or whatever one calls the system in Quebec) has never been illustrated with such clarity as when I have been trying to understand the decision of the SCC in St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64 (20 Nov 2008) http://scc.lexum.umontreal.ca/en/2008/2008scc64/2008scc64.html . The court rules that there is a civil, no-fault liability for causing "abnormal or excessive" annoyance to neighbours in Quebec. That is no problem as a matter of theory- Rylands v Fletcher is pretty close to that. But the liability is based on Article 976 of the Civil Code of Quebec, which provides:
"976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom."
? I'm sure it sounds better in French, but as far as I can tell reading the English version of the judgement, that is it. So a provision which says "neighbours have to put up with the ordinary events of neighbourhood life", is then interpreted to find a full-blown no-fault liability for someone who causes "excessive" annoyance. In the end the interpretation is based on examination of the legislative history, although to this little black duck a legislative history (see paras [54] ff) which involved two previous draft provisions which would have explicitly imposed liability for "damage to another beyond the normal inconveniences resulting from proximity", but which were deliberately not adopted, seems to suggest a different outcome...
I notice, following up some comments I seem to recall Jason made recently, that there is also some discussion of "abuse of rights" as a possible basis for a civil claim as well at [23]-[29].
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
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