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The Respondent is not Liable under the Rule in Rylands v Fletcher . ... Walker v McKinnon Industries Ltd [1949] OR 549, [1949] CarswellOnt ...
Typology: Summaries
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S.E.M.C.C. File Number: 03-09- IN THE SUPREME ENVIRONMENTAL MOOT COURT OF CANADA (ON APPEAL FROM THE ONTARIO COURT OF APPEAL)
B E T W E E N:
ELLEN SMITH APPELLANT (Appellant)
INCO LTD. RESPONDENT (Respondent)
Pursuant to Rule 12 of the Willms & Shier Environmental Law Moot Official Competition Rules 2013
A. Overview of the Respondent’s Position 1 The Respondent, Inco Limited (“Inco”), submits that the Appellant has failed to make out claims under the rule in Rylands v Fletcher and private nuisance. 2 Contrary to the Appellant’s submission, the Ontario Court of Appeal (the “Court of Appeal”) was correct in rejecting the plaintiff’s claim under the rule in Rylands v Fletcher. None of the prerequisites of the strict liability rule have been met. The use of the land as a nickel refinery in an industrial area was not a non-natural use of the land. The nickel emissions from the refinery were neither an accidental nor unintended escape, as the rule requires. Rather, the emissions were part of the normal legal operations of the refinery and complied with all existing environmental and other regulation. 3 The Court of Appeal was also correct in rejecting the plaintiff’s private nuisance claim. There was no material physical injury to the land. The nickel particles are not dangerous, per se. There has to be some harm suffered to establish a claim of physical injury in private nuisance. The nickel particles caused neither adverse effects to the land or to the rights associated with its use. In fact, the nickel in the soil was an entirely reasonable outcome from living in a community where there is a nickel refinery that brings economic benefits. 4 The Appellant has tried to argue that the diminution of property value is a manifestation of the harm suffered. However, the diminution in property value was a market fluctuation caused by a temporal change in public perception decades after the emissions stopped. The Respondent is not liable for market fluctuations it does not control. 5 For these reasons, the Respondent submits that the Court of Appeal’s decision upheld justice. Since the Court of Appeal’s judgement, which was based on existing causes of action, was just, there is no reason to create a new cause of action or modify the existing causes of action in this case. The Court should not distort private tort law as the Appellant submits, without broader political consultation. And even if the Court adopts the Appellant’s submission and incorporates the precautionary principle and the polluter pays principle into the existing causes of action, the Respondent submits that Inco will not be liable under the modified law. B. Respondent’s Position with Respect to the Appellant’s Statement of the Facts
6 The Respondent submits that the following facts were either omitted in the Appellant’s factum or need clarification. 7 The Respondent operated the refinery until 1984, not 1980, as the Appellant submits. Factum of the Appellant (Team 05-2013), Ellen Smith to the Supreme Environmental Moot Court, at para 6 [Appellant’s Factum]. Smith v Inco, 2010 ONSC 3790 at para 24, 2010 CarswellOnt 4735 (WL Can) [ Smith1 ].
8 Ninety-seven percent of the emissions from the refinery were emitted before 1960. Only three percent of total emissions were emitted between 1960 and 1984. Nickel emissions stopped after 1984. Only three percent of total emissions were emitted between 1960 and 1984. Nickel emissions from the refinery stopped after 1984. “March 2002 HHRA”, McLaughlin Chief cited in Memorandum of Argument of Inco in Application to Leave to Appeal to the Supreme Court of Canada [Inco Factum Smith3 ] at para 4.
9 The Respondent would like to acknowledge that the refinery was located to the east of the Rodney Street Area, not to the west as stated in the Appellant’s factum. Appellant’s Factum , supra para 7 at para 7. Smith v Inco, 2011 ONCA 628 at paras 6, 19, 2011 CarswellOnt 10141 (WL Can) [ Smith2 ].
10 “For many years [Inco was] the major employer in the Port Colborne area, employing as many as 2,000 people.” Smith2, supra para 9 at para 6.
11 The refinery always complied with all applicable environmental and other regulatory standards. Nickel emissions were part of normal daily operations of the refinery and not an accidental release. Smith1, supra para 7 at para 333.
12 The trial judge held that nickel is not dangerous, per se. In fact, the nickel particles are not noticeable and “have become part of the soil” on the Appellant’s lands. The Appellant has not alleged that the nickel emissions have negatively impacted human health or wellbeing. Smith1, supra para 7 at paras 76.
13 The water quality and the air quality in Port Colborne have not been affected by the emissions. There have been no submissions that the nickel has impacted water quality in Port Colborne. The Ministry of Environment (the “MOE”) has confirmed after air sampling in schools that there are no adverse health effects from nickel in the soil. Inco Factum Smith3, supra para 8 at para 4(f). Smith1, supra para 7 at paras 174.
A. The Respondent is not Liable under the Rule in Rylands v Fletcher 20 The Court of Appeal correctly held that the nickel refinery, contextualized in time and place, was a natural use of the land. The appellant incorrectly emphasises profit-making as a factor to undermine the naturalness of the use of the land. Smith2, supra para 9 at paras 103-104.
21 The Court of Appeal was correct in holding that the imposition of strict liability for legally compliant intended releases would change the nature of the rule in Rylands v Fletcher , which was created to address accidental escapes. The refinery’s emissions of nickel were conducted in accordance with the relevant statutory regimes of the day. Imposition of strict liability would therefore be contrary to the “escape” requirement in the rule and would be unjust. Smith2, supra para 9 at para 112.
22 The Respondent submits that this Court follow the House of Lords in explicitly recognizing that foreseeability of the particular form of harm is a required element of liability under the rule in Rylands v Fletcher and submits that the diminution of value was not a foreseeable result of nickel emissions. Transco plc (formerly BG plc and BG Transco plc) v Stockport Metropolitan Borough Council [2003] UKHL 61, [2004] AC 1 at para 26 (available on QL) [ Transco ]. Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 at 306 (available on QL) [ Cambridge Water ].
(i) The Rule in Rylands v Fletcher 23 Blackburn J. first articulated the rule in Rylands v Fletcher as follows: ..the person who for his own purposes brings on his lands and collected and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for all the damage which is a natural consequence of its escape. Rylands v Fletcher (1868), LR 3 HL 330, 37 LJ Ex 161 at 280 (available on QL) [ Rylands v Fletcher ].
24 The Court of Appeal used the correct test to determine liability under the rule in Rylands v Fletcher. Inco submits that the test should be applied to this appeal while explicitly including foreseeability, which has always implicitly been a part of the rule. The test is: a) Whether the defendant’s use of the land was a non-natural use, in the context of the time place, and general use of the land?
b) Whether the substance did in fact escape? c) If there was escape, was the damage a foreseeable result of the escape? 25 The Respondent will address each of these factors in this factum. (ii) The nickel refinery was natural in the context of time and place 26 When contextualized in time and place, Inco’s operation of the refinery was a natural use of the land, while balancing competing interests of the community, under the rule in Rylands v Fletcher. 27 As the Privy Council reasoned in Rickards , the context of the defendant’s activities must be considered when evaluating whether the use of the land is “non-natural”. Rickards was quoted with approval by LaForest J., writing for the majority on this point, in Tock : It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community. Tock v St John’s Metropolitan Area Board , [1989] 2 SCR 1181 at 1189 [ Tock ]. Rickards v Lotham, [1914] 16 CLR 387 at 268, [1913] AC 263 (PC) (available on QL) [ Rickards ].
28 In Tock , LaForest J. specifies that the rule in Rylands v Fletcher is only applicable where the damage has been caused by a “user inappropriate to the place where it is maintained.” He uses the analogy of “the pig in the parlour”. As Lord Porter stated in Read : all the circumstances of the time and place and practice of mankind must be taken into consideration so that what might be regarded as dangerous or non-natural may vary according to those circumstances. Tock , supra para 28 at 1090. Read v J Lyons & Co Ltd Speech of Lord Porter , [1946] UKHL 2 at 176, [1947] AC 156 (available on QL) [ Read ].
29 The term ‘non-natural’ cannot be applied in its literal sense; rather, it must be understood as being what is expected to be natural in the context of the time and place. 30 The Appellant argues that Tock is distinguishable and Inco should be held liable because in that case the defendant was a public entity rather than a private entity like in this case. However, the mere fact that something is for-profit, rather than public, does not qualify it as a non-natural use. Read, supra para 28 at 176. Tock , supra para 28 at 1190
36 The timing of the use is a key consideration. In Read , the House of Lords held that in the context of World War II, an ammunition plant was a natural use of land. Read, supra para 28 at 169-170.
37 Similar to a war-time ammunition plant, the context of the time in which the plant began operation must be considered. In 1918, when the refinery was built, few people owned cars. Transportation to work was largely human-powered and people generally lived close to work. Projecting modern sensibilities on the world of 1918, as the Appellant seeks to do, by stating that something is non-natural in 1918 because it non-natural now, is inconsistent with the requirement to contextualize the use of the land by time. 38 Contrary to the Appellant’s assertion, there is no evidence before the Court that the community ever expressed a lack of tolerance of the refinery. Indeed, it was an integral part of the community and was at one time the major employer in the area with up to 2,000 employees. Smith2, supra para 9 at para 6.
39 Inco’s operations were consistent with community norms and social patterns. The Appellant, in moving to the location, implicitly accepted those norms. The refinery complied with all applicable regulations and has been a fixture in the community for years. Tock , supra para 28 at 1089-1090.
40 In the context of the refinery, Inco’s use of the land was natural, which as noted above, has a special meaning in relation to the rule. The refinery operated in Port Colborne, an industrial city, and in an industrial zone. It was ordinary to operate a nickel refinery in that place and time. Smith2, supra para 9 at para 103.
41 The Appellant relies on Cambridge Water to assert that a nickel refinery is a non-natural use of the land even in the context of an industrial operation. In Cambridge Water the defendant’s activities involved the collection of large quantities of chemicals in an industrial area. It was held that these activities constituted a non-natural use. However, the Court in Cambridge Water acknowledged that someone could be “overcome by the fumes” and that the chemicals were dangerous, per se. In contrast, as the trial judge noted, nickel is not dangerous, per se. Cambridge Water, supra para 22 at 284. Smith1, supra para 7 at paras 54.
42 The rule in Rylands v Fletcher ensures that land is being used in accordance with the nature or context of the area. Therefore it would be inconsistent with this rationale to hold a defendant liable for activities that were, at the time, ordinary and natural. 43 Considering the context of time, place, and manner of operations, Inco’s nickel refinery was a natural use of the land throughout the time it released the nickel particles. Therefore, no liability under the rule in Rylands v Fletcher should follow. (iii) Escape 44 Inco submits that the Appellant is incorrect in attempting to extend Rylands v Fletcher to cover intentional discharges. 45 The Court of Appeal correctly held that an intentional discharge is not an escape. In North York the Ontario High Court reasoned that courts must distinguish between intentional discharges and fortuitous escapes. The authors of Law of Nuisance in Canada note that actions regarding intentional discharges rightly fall under different causes of action. Gregory S. Pun & Margaret I. Hall, The Law of Nuisance in Canada (Markham: LexisNexis Canada Inc,
46 In support of her argument that the intentional emission of nickel particles constitutes an “escape”, the Appellant cites Blackburn J. in Rylands v Fletcher. As an example of the types of situations where the rule might apply, Blackburn J. cited a situation where: “habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works.” The Appellant asserts that this dictum implies that the original doctrine was intended to cover the intentional discharge of substances from alkali works. Rylands v Fletcher , supra para 1. Appellant’s Factum , supra para 7 at para 53.
47 However, the facts of Rylands v Fletcher are distinguishable. In Blackburn’s time, alkali works, were extremely toxic and dangerous. Intentional discharges of effluent from alkali works were prohibited by statute. Even if the Court were to hold that escape includes intentional discharges, the current case is distinguishable based on the fact that nickel is not dangerous, per se. Further, as Professor Murphy has noted, Blackburn J.’s example of alkali works was a clear example of nuisance, rather then the distinct Rylands v Fletcher doctrine that has developed. John Murphy, “The Merits of Rylands v Fletcher” (2004) 24:4 Oxford J Legal Studies 643 at 645. An Act for the more effectual condensation of Muriatic Acid Gas in Alkali Works (UK), 26 &27 Vict C 124 ss 4-5.
natural. Doing otherwise would also be inconsistent with the common law fairness principle against retroactive application of laws, absent explicit legislative intent. Thus foreseeability must be considered at the time of the discharge. Tock , supra para 28 at 1089.
54 In Cambridge Water the House of Lords reasoned that to remain reasonable Rylands v Fletcher requires foreseeability of the particular harm. a "strict" liability rule such as Rylands v. Fletcher … is reasonable when the degree or magnitude of risk, namely, the nature or certainty of harm, if there is an escape, justifies it. By the same token or principle (a) the risk must be foreseeable and (b) the harm which ensues must fall within the risk which provided the reason for imposing "strict" liability in the first place
Cambridge Water clearly stands for the rule that not only must the risk be “foreseeable” but the harm that is caused must be “within the risk” that was contemplated. In fact, the case actually turned on the fact that rendering the water undrinkable was not foreseeable at the time of the escape and thus the defendant was held not to be liable under the rule in Rylands v Fletcher. Cambridge Water, supra para 22 at 290
55 The harm suffered by the Appellant, which was diminution in the value of her property (due to public concerns over the level of nickel in the soil on her land) could not have been foreseen. The immediate cause of the diminution in value was public concern over media reports of unsubstantiated claims that the presence of the nickel particles posed risks to health. This chain of events could not have been foreseen at the time of the nickel particles’ release. 56 Since the MOE only started conducting studies of soil contamination in the 1970s, before that time it could not have been foreseen that the public would have concerns over nickel emissions and that housing values might have been affected by public concerns. Emission regulations and restrictions started only in the 1970s, or shortly prior to that, by which time 97% of the emissions were already released. It is not possible that the indirect effect the presence of nickel particles had on the Appellant’s property could have been foreseen before the introduction of MOE studies concerning the level of nickel in the soil. Based on this, even if the Court should hold Inco liable for market fluctuations, damages should be apportioned to only that part of emissions that occurred after the 1970s. Smith2, supra para 9 at paras 7-10. Environmental Protection Act SO 1971 c 86.
57 It is the Respondent’s submission that the Appellant has not shown that the Court of Appeal erred in relation to the rule in Rylands v Fletcher. First, the use of nickel in a refinery is a natural use of land. Second, the intentional discharge of nickel does not constitute an escape. 58 The Court should also explicitly recognize foreseeability of the harm of the escape as being part of the rule in Rylands v Fletcher , like the House of Lords has. Foreseeability of harm has always implicitly been part of the rule in Canada and the Appellant has failed to show foreseeability of harm on these facts. B. The Respondent is not Liable for Nuisance 59 The Appellant argues that the Respondent is liable under the law of private nuisance. She asserts that the presence of the nickel particles in the soil on her land caused material physical injury to her property and that this is sufficient to establish a legal nuisance. Appellant’s Factum , supra para 7 at paras 26, 74.
60 The law of private nuisance protects one’s interest in the beneficial use of land from unreasonable interferences. Co-existence in communities is dependent on the principle of “give and take, live and let live”. A balance must be struck between the competing interests of landowners. Not every interference with the land of another rises to the level of a legal nuisance. John G Fleming , The Law of Torts 9th ed (Sidney: The Law Book Company Limited, 1998) at 465-467. Tock , supra para 28 at 1191 citing Bamford v Turnley (1862), 122 ER 127 at 32-33 (available on QL). Royal Anne Hotel Co v Village of Ashcroft , [1979] BCJ No 2068 (QL) at para 12 , 95 DLR (3d) 756 (CA) [ Royal Anne Hotel ]. Smith2, supra para 9 at para 43_._
61 The Respondent disputes the Appellant’s assertion that the presence of the nickel particles in the soil constitutes material physical injury to the land. The Court of Appeal applied the correct test for assessing whether the nickel particles caused material physical injury. The Appellant has failed to establish that the nickel emissions caused an adverse affect on her land or on the rights associated with the use of her property. Appellant’s Factum , supra para 7 at paras 71, 82.
62 In the alternative, if the presence of the nickel particles does constitute material physical injury to the Appellant’s property, the interference of the nickel particles was not unreasonable. Contrary to the Appellant’s assertion, the Appellant must also establish that the Respondent’s activities caused an unreasonable interference with her property. Considering the surrounding
67 The settling of foreign particles on a plaintiff’s land, even if the settling indirectly results in the diminished value of the property, is not a physical injury unless there is an injury to the land itself or to the property rights associated with its use. In Execotel the plaintiff asserted that the migration of dust onto the plaintiff’s property caused material physical injury to its hotel and diminished the hotel’s value. Although Donnelly J. characterized the wood dust as “an unrelenting, repetitive deposit of a contaminant”, he held that it did not physically injure the land. Similar reasoning was applied in Pioneer Construction. The settling of foreign particles does not in itself constitute material physical injury to land. Execotel Hotel Corp v EB Eddy Forest Products Ltd, [1988] OJ No 1905 (QL) at 20, 25 (SC)[ Execotel ]. Walker v Pioneer Construction Co , 8 OR (2d) 35, 1975 CarswellOnt 336 (WL Can) at paras 31-34 (SC) [ Pioneer Construction ].
68 In contrast, the accumulation of foreign particles can be considered a material physical injury to a property if the particles are detrimental to the property rights associated with the land’s use. In Russell Transport , the defendant’s emissions of iron oxide particles made the plaintiff’s business of storing vehicles untenable. Since the particles had rendered “the plaintiff’s property unfit for the purpose for which it was purchased and developed” McRuer C.J.H.C reasoned that the land had suffered material physical damage. Smith2, supra para 9 at para 55. Russell Transport Ltd v Ontario Malleable Iron Co [1952] OR 621, [1952] OJ No 451 (QL) at paras 16 [ Russell Transport ].
69 In Kent , so much dust from the neighboring iron ore mine settled on the plaintiff’s property that the house became “virtually uninhabitable”. Like in Russell Transport , it was held that the plaintiff’s land had suffered a material physical injury since the accumulation of the foreign particles made the property unfit for its intended purpose. Kent v Dominion Steel , [1964] NJ No 2 (QL) at paras 48, 50, 49 DLR (2d) 241 (CA) [ Kent ].
70 Clearly, the settling of foreign particles on one’s property may only be considered material physical injury to the land if there has been material and actual injurious affects on either the proprietary rights associated with use of the land or on the land itself. 71 In the present case, there has been no interference with the class members’ abilities to use their properties as residences. The case at bar is much more analogous to Execotel or Pioneer Construction than to Russell Transport or Kent. None of the property rights associated with the use of residential properties have been interfered with. The Appellant has refused Inco’s effort to
remediate her property and she continues to reside there with her young family. Ms. Smith admitted at trial that her community remains an attractive location for a young couple to purchase their first home. All the properties, other than the land owned by the Appellant, have been remediated to the agreed upon standard of 8,000 ppm. The class members agreed that this was the appropriate standard for remediation and the standard was confirmed by the Environmental Review Tribunal, a tribunal with a high degree of expertise in this field. The harmless settling of the nickel particles on the Appellant’s property does not amount to an interference with the rights associated with the use of the land. Smith Cross, cited in Inco Factum Smith2 ( supra para 15) at para 55. Smith1, supra para 7 at para 7. ERT, supra para 15.
(ii) The Appellant’s Reliance on Statutory Standards 72 The Appellant asserts that the presence of the nickel particles constitutes an injury to the land itself since she claims that the nickel emissions are a contaminant, pursuant to the Ontario Environmental Protection Act. Environmental Protection Act, RSO 1990, c E.19 [ EPA ].
73 The Respondent disputes the Appellant’s claim that the nickel particles constitute a contaminant with adverse effects pursuant to the EPA. Under s 1(1) of the EPA : “contaminant” means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect; “Adverse effect” means one or more of,… (b) injury or damage to property or to plant or animal life…. Appellant’s Factum , supra para 7 at para 96.
74 The Respondent submits that the effect of the nickel in the soil does not constitute an “adverse effect” according to the EPA. Although there may be sufficient nickel in the soil to “possibly adversely affect the most sensitive plant life” there is no evidence that the presence of the nickel did, or even could have caused, injury or damage to any plant life on any of the class members’ properties. The Appellant assumes that the presence of nickel in excess of the MOE guideline standard “demonstrates adverse effects on plant life, including those less sensitive to nickel.” With respect, there is no evidence in the record to support this assumption. Appellant’s Factum , supra para 7 at para 93.
(iii) Diminution in Market Value is not Evidence of Material Injury 78 The Appellant argues that the diminution in market value of her property is evidence of the injury she alleges the nickel particles caused to her land. The Appellant is unable to cite any cases that support this proposition. Appellant’s Factum , supra para 7 at para 104.
79 Diminution of property values is not evidence of physical damage to the land. The law recognizes that a person is entitled to engage in activities that may depreciate the value of another’s property, so long as the activity has not unreasonably interfered with the use or enjoyment of the property or has physically damaged it. Shuttleworth v Hospital , 1927 CarswellBC 5 (WL Can) at para 9 , [1927] 1 WWR 476 (SC) [ Shuttleworth ].
80 In this case, the direct cause of the depreciation of property values was public concern over unsubstantiated claims of risks to health. Public or individual concerns or fears, absent proof of real risk, are not actionable grounds for claims in nuisance. Public concern that results from unfounded claims are also unpredictable and fleeting and therefore cannot be considered material injury to the land. Shuttleworth , supra para 79 at para 8. Wiebe v De Salaberry (Rural Municipality) , 1979 CarswellMan 58 (WL Can) at para 31, 11 CCLT 82. Fleming, supra para 60 at 468 citing Benjamin v Storr (1874) LR CP 400 at 407.
(iv) Adverse Effects to Health 81 The Appellant argues that the Court of Appeal erroneously relied on the fact that the nickel particles had no adverse effects on health in its rejection of the Appellant’s claim. This argument misconstrues the reasoning of the Court of Appeal. The Court only recognized that the property rights associated with a residential property extend to protect one’s interest in occupying one’s residence without the risk of harmful health effects. Appellant’s Factum , supra para 7 at paras 81. Smith2, supra para 9 at para 55.
82 Previously, it had not been explicitly recognized in the jurisprudence that damages due to personal injury were compensable under the law of nuisance, unless the injury was also accompanied with an interference with the use and enjoyment of property. The authors of Law of Nuisance in Canada had advocated for this recognition. Therefore, the Court of Appeal’s dicta on this point represents an expansion rather than a contraction in the law. The Court of Appeal
recognized that activities affecting land and which pose a real risk to the health of the occupier of that land could rise to the level of being classified as material physical injury to the land. Allen M. Linden & Bruce Feldthusen, Canadian Tort Law 9th ed (Markham: LexisNexis, 2011) at 580. Law of Nuisance in Canada , supra para 45 at 85.
83 Furthermore, the Court of Appeal’s dicta on this point did not affect its rejection of the Appellant’s claim that there was a material, physical injury to the land itself. The test articulated by the Court of Appeal was that since a change in chemical composition of the soil is not per se injurious, the change “must have had some detrimental effect on the land itself or rights associated with the use of the land.” [Emphasis added]. The use of the word “or” indicates that the Court of Appeal considered and rejected any argument that the nickel particles had either an adverse effect on the land or the proprietary rights associated with the use of that land. Smith2, supra para 9 at para 55.
84 Since there has been neither physical injury to the land itself nor any adverse effects on the property rights associated with the land’s use, the Court of Appeal correctly held that the nickel particles have not caused material physical damage to the Appellant’s property. (v) The Interference must be Unreasonable in the Context of the Surrounding Circumstances 85 In the alternative, even if Inco did cause material physical injury to the Appellant’s property, the Respondent submits that the injury was not unreasonable in the context of the surrounding circumstances. 86 The Appellant asserts that the requirement that the interference be unreasonable is not an element of private nuisance if material physical injury to the plaintiff’s land has been established. Appellant’s Factum , supra para 7 at para 74.
87 With respect, the case law does not support this assertion. In St Lawrence Cement the Supreme Court of Canada defined nuisance as an “unreasonable interference with the use of land.” In Tock, La Forest J. also reasoned that the question of reasonableness was central to the test for nuisance. Clearly, an essential element of nuisance is the requirement that the interference be unreasonable. St Lawrence Cement v Barrette , 2008 SCC 64 at para 77, [2008] 3 SCR 392 [ St. Lawrence Cement ]. Tock , supra para 28 at 1191.
88 When assessing whether an interference with the plaintiff’s land is unreasonable the courts assess a number of criteria, which are often referred to as the “competing factors”. These
