Week 3 Group Exercise
Instructions: Review the following tort scenario and discuss responses to each of the questions. Please explain your responses in your group response. In preparing your responses, think about identifying the rule (legal test) and each of its elements/factors; the source of the rule (i.e. from which case(s) is the rule derived); and the apply the facts of the scenario to the case.
Bob MacDonald owns and operates a farm located on the outskirts of Waterloo, Ontario. The farm is located in an area that has been rural in nature. There are numerous other farms in the area. However, in the last ten years a new residential neighbourhood consisting of about 50 houses has been built adjacent to the farm.
The MacDonald farm grows crops and has recently started to raise livestock, pigs and cows. The livestock operation includes a liquid animal waste storage pond. The farm has operated for over 80 years without complaints, but recently residents in the adjacent residential neighbourhood have raised concerns regarding some of the farm activities. In particular, the residents note that the livestock operation has resulted in strong odours coming from animal waste storage pond. They indicate that the smells are so severe that the residents are required to close their windows on and they cannot use their backyards. The residents, however, do concede that the severity of the smells varies over time and much of the time the smells are less severe. MacDonald has indicated that farms are a crucial part of the Ontario economy and are necessary to provide local sources of food.
A group of neighbours wants to bring a legal action to prevent MacDonald causing further odours from the livestock operation.
What remedy would the neighbours ask the court to grant in order to get the relief that they seek?
Advise whether the neighbours have a valid claim in private nuisance against MacDonald arising from the disturbances to their residences and assess whether the claim is likely to succeed.
Who has the onus of proof in a claim such as this? What is the standard (burden) of proof for such a claim?
Does the fact that MacDonald’s farm was in existence before the houses were built, and that the purchasers of those houses knew or ought to have known about the smells associated with farming provide a defence for MacDonald?
Would the neighbours be able to bring a successful claim in trespass in relation to the odours?
One of the neighbours, Patricia Grier, has a severe allergy to livestock. The result is that she has been unable to use her outdoor areas on her property at all since MacDonald began raising livestock.
Advise whether you think Patricia Grier would be successful in asking the court to award damages based on the interference to her use and enjoyment of property caused by the presence of livestock on the MacDonald farm.
As part of his farm operation, MacDonald must maintain farm machinery, which requires him to store industrial cleaners and used oil in a shed on his property. These substances are toxic and as a result are stored in secure barrels and the shed is locked. On September 15th, some teenagers broke into the shed, which is located away from the farmhouse, but immediate next to a residential property owned by John McIntyre. The teenagers vandalized the barrels causing the toxic substances to be released and to contaminate the McIntyre’s yard and an adjacent steam. The stream is an important habitat for a rare species of fish.
Could McIntyre bring a successful action against MacDonald even if it were determined that MacDonald was without fault in the release of the toxic substances. Explain.