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Ontario Court of Appeal: No Claim if Nuisance Arising from Plaintiff's Own Land

2/23/2015

In French v. Chrysler Canada Inc., 2015 ONCA 104 the Ontario Court of Appeal examined the tort of nuisance and confirmed that you are out of luck if you want to bring a claim for nuisance emanating from your own backyard.

The Plaintiffs purchased land that was previously owned by Chrysler Canada Inc. and had, at one time, been used as a foundry and asbestos insulation producer. Before selling the land, Chrysler had decommissioned it. The Plaintiffs subsequently brought a claim in negligence for decommissioning the property and failing to remediate it, among other claims. Later, the Plaintiffs sought to amend the Statement of Claim by adding the tort of nuisance for the pollutants emanating from the land and interfering with the Plaintiffs' use and enjoyment of the land. The motion judge denied the amendment finding that there was no tenable claim in nuisance. The Plaintiffs appealed, arguing that the scope of the tort of nuisance has not been finally settled at common law and the claim should be allowed to proceed.

The Court of Appeal disagreed and dismissed the appeal. One of the factors in deciding whether to amend a pleading under Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is whether the amendment would have been struck out if originally pleaded. Applying the analysis of Hunt v Carey Canada Inc., [1990] 2 S.C.R. 959 a claim will be struck if it has no reasonable chance of success, and the Court of Appeal concluded that such was the case with the current nuisance claim:

"The appellants are effectively arguing that they should be entitled to seek to fundamentally change the law of nuisance. That would be a tenable position, if for example, the appellants sought to expand the tort to a new fact situation not before considered. However, the tort of nuisance has certain defined, long-standing characteristics, which courts have considered to be essential to the tort. In particular, the alleged nuisance must originate somewhere other than on the plaintiff's land. In this case, the appellants seek to establish the tort where the essential character is missing. Their claim has no reasonable chance of success." [emphasis added] [para. 8]

The full decision can be found here.

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Plain Language Please. 'Tis Time To Sayeth Goodbye to Legalese

2/12/2015

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"Know all Men by These Presents". Those were the first words in a release I reviewed in 2014. Yes, 2014.

Granted, the drafter of the document was on the verge of retirement, but still, who writes like this anymore? And I am not referring to the non-gender-neutral terminology. I could (and likely will) write a whole other blog post on gender-neutral language in law and related issues. For example, there is a prominent court reporting agency in downtown Toronto that identifies male lawyers on their transcripts as John Smith Esq. and female lawyers as simply Ms. Jane Smith (at least they did the last time I used them a few years ago). This irked me to no end. Why 'honour' only men with the title of esquire? I am a lawyer too. And yes, I do understand the historical context of 'esquire'. Anyway, I digress. This blog post is really about lawyers' love of confusing language and legalese. The release mentioned above went on to state that "the parties hereto doth hereby remise, release and forever discharge each other . . ." Hereto? Doth? Really? When was the last time you used the word "doth" in a sentence, or "hereto" for that matter? And what exactly does "Know all Men by these Presents" even mean? I have no idea. I just picture a bunch of old men holding onto gift wrapped boxes. I can only guess that it means something along the lines of "Let everyone know".

As a corporate litigator, I read many contracts searching for a clause that would either save my client's behind or bury the other side. After hours of reviewing these dense documents I would often have to read the same clause multiple times just to understand it. Fortunately, my clients were sophisticated corporations who could afford expensive lawyers to interpret the language for them. Unfortunately, most people cannot afford to have a lawyer review every document or contract they sign. The majority of bank agreements, service agreements, leases, waivers at children's birthday parties etc. all contain our lawyerly language. People are likely not reading the documents they sign or if they do read them, probably do not understand them. So, why have lawyers not embraced plain language or "modern contract drafting" as some call it? Is all of this gobbledygook/legalese necessary?

Some argue it is . Some argue that plain language in legal documents and legislation generates errors. They also argue that the law is too complex to narrow down into 'simple' words and that plain language oversimplifies or changes the meaning of the contract.

Others, such as PLAIN ("The Plain Language Association InterNational") disagree. They argue that plain language is not about dumbing down the words but making them more accessible to the reader. Which is, perhaps, what concerns some lawyers. If the words are too accessible, will people need us anymore to act as drafters and interpreters? Or, are we just lazy and it is too much work for us to leave behind our precedents and the language that has become second nature to us?

Maybe there is a happy medium. Recently, I came across an interesting terms of service agreement on an accounting website. For each clause of the "traditional style" contract there was a plain language or "simple terms" commentary. The introduction to the agreement states:

"Hi! Congratulations on being the sort of person who reads Terms of Use. We applaud you. Below, on the left, you'll see the Terms to which you must agree if you're going to use any of [our] services. Our lawyers wrote that, and that's the stuff that counts. On the right, you'll see how I'd explain it to my grandmother (hi grandma!) if she asked. I hope it helps make sense of this document, so that you can understand what you're consenting to."

An example of one of the regular contract clauses: "[The Company] may, without notice or liability, add, discontinue or revise any aspect, mode or design of the Services which include but not limited to the scope of service, time of service, or to the software/hardware required for access to the Services."

The "Simple Terms" explanation is: "Sometimes things change, even [The Company]." [1]

Now, I am not sure what a court would do with these "Simple Terms" if there was ever a dispute over the interpretation of the contract, but I like the effort.

So, maybe we can take baby steps. The next time you draft a release, a contract, a will or power of attorney, look at your precedent: is there a "doth" in there? A "hereto"? Maybe switch the "doth" to "do" and just get rid of the "hereto". And if you have "Know all Men" anywhere in your precedent, I suggest it is time to retire that document and enter the 21st century.

[1] The full terms of service can be found here.

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Ontario Court of Appeal: No Claim if Nuisance Arising from Plaintiff's Own Land

Plain Language Please. 'Tis Time To Sayeth Goodbye to Legalese

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