Nuisance: A Proprietary Delict

Nuisance: A Proprietary Delict

I) Introduction

1. Definition of terms

Ownership, the most absolute of the real rights, includes the
right of enjoying the property which is the object of the right in
the most absolute manner, provided that no use be made of the
property “which is prohibited by law or by regulation”.1 The only
other limitations on this absolute right which are expressly imposed
by the Code are the natural 2 and legal servitudes. 3 There is yet
another limitation, though, which has been steadfastly imposed by
the jurisprudence in Quebec; its roots are to be found in the general
principles which underlie art. 406 C.C. and legal servitude, but its
breach is uniformly sanctioned by an action taken under art. 1053. 4
That limitation, expressed by the Latin maxim sic utere tuo ut alie-
num non laedas and known in the old French law as the obligations
du voisinage,5 is to be found in the sources used by the Codifiers
in drafting art. 406.

‘Art. 406 C.C. The French article, 544 C.N., is identical: “La propri6t6 est le
droit de jouir et de disposer des choses de la mani~re la plus absolue, pourvu
qu’on n’en fasse pas un usage prohib6 par les lois ou les r6glements.”

2Art. 501 et seq. C.C.
3 Art. 506 et seq. C.C.
4 Similarly, in France, the action is taken under articles 1382 C.N., 1383 C.N.:

(1382 C.N.)
Tout fait quelconque de l’homme, qui cause h autrui un dommage, oblige
celui par la faute duquel il est arrive, A la r~parer.
(1883 C.N.)
Chacun est responsable du dommage qu’il a caus6 non seulement par son
fait, mais encore par sa n6gligence on par son imprudence.

5 Art. 1057 C.C. lists certain obligations which result from the operation of
the law solely. These include “certain obligations of owners of adjoining proper-
ties”, but the reference is to the servitudes at 501 et seq. and 508 et seq. C.C.,
not to the broad area of the obligations du voisinage. Similarly, in France, art.
1370 C.N. in speaking of “les engagements form6s involontairement, tels que
ceux entre propri6taires voisins”, is said to refer to the servitudes at 640 et seq.
and 651 et seq. C.N. See Henri Capitant, Des obligations de voisinage et spdciale-
ment de l’obligation qui p~se sur le propriftaire do ne causer aucun dommage au
voisin, 1900 Rev. crit. lgis. et juris. 156, 228 at p. 236; H. Lalou, Trait6 pratique
de la responsabilitg civile, 5e 6d., (Paris, 1955), no. 942, p. 575; G. Ripert, Do
I’Exercice du droit de proprigtM, (Paris, 1902), p. 262. Cf. the suggestion of J.
Carbonnier, Droit civil, 3e 6d., t. 2, (Paris, 1962), no. 57, p. 188. The study of
the aggravation of servitudes, although intimately related to vicinal relation-
ships, is vast in itself and will not be treated in this paper.

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NOTES

Ce droit de proprit6, consid6r6 par rapport h ses effets, doit se d6finir le
son gr6 d’une chose, sans donner n6anmoins atteinte au
droit de disposer
droit d’autrui, ni aux lois.6

Quoique le domaine de propri6t6 donne an propriftaire le pouvoir de faire
ce que bon lui semble dans son heritage, il ne peut cependant y faire ce
que les obligations du voisinage ne permettent pas d’y faire au prejudice
des voisins.”
The broad area of obligations du voisinage can be broken down
still further into the areas of abuse of rights, with which this paper
does not purport to deal, and what has come at common law to be
known as nuisance,” the subject-matter of these pages. While both
abuse of rights and nuisance are concerned with the damage caused
by an obnoxious act which interferes with the beneficial interest
of a proprietor in his land, there is a fundamental difference be-
tween the two. Abuse of rights applies stricto sensu to the exercise
of a right which, having all the appearances of a perfectly normal
and licit act, is illicit solely because it is exercised with the in-
tention of causing harm to a neighbour. 9

6 Pothier, Trait6 du droit de domaine de proprit6, in Oeuvres de Pothier,

2e 6d., par M. Bugnet, t. 9, (Paris, 1861), no. 4, p. 103.

7 Pothier, Introduction gdndrale aux coutumes, ibid., t. 1, no. 101, p. 35.
8 Even at common law, where nuisance is a specific tort, the word itself has
become “bedevilled with … much obscurity, and confusion”. J. Fleming, The
Law of Torts, 3rd ed., (Sydney, 1965), p. 364. In Quebec, nuisance is not even
a term of art, much less a nominate tort or delict, and the word is used, frankly,
for lack of a better term in either French or English to describe a recurrent
legal situation whose parameters will be discussed below. In fact, the term
“nuisance” has been used with regularity in judgments rendered in Quebec in
both the English and French languages and it will not be strange to the student
of the civil law of this province. On the other hand, the word would probably be
unknown to the student of French law who would recognize the legal problem
as “les inconv6nients anormaux de voisinage”.

9L. Baudouin, Le Droit civil de la Province de Quibec, (Montreal, 1953),
pp. 1278 et seq.; A. Amiaud, in the Congras International de l’Association Henri
Capitant, (Montreal, 1939), pp. 777-786, at p. 780; Aubry et Rau, Cours de droit
civil frangais, 3e 6d., t. 2, (Paris, 1863), no. 194, p. 178, n. 19; Baudry-Lacanti-
nerie et Chauveau, Trait6 thorique et pratique de droit civil, 3e 6d., t. 6, (Paris,
1905), no. 222, p. 169; Planiol et Ripert, Trait6 pratique de droit civil frangais,
3e 6d., par M Picard, t. 3, (Paris, 1926), no. 458, pp. 434-435; P. Bettremieux,
Essai historique et critique sur le fondement de la responsabilit6 civile en droit
frangais, (Lille, 1921), no. 23, pp. 38-39; P. Leyat, La ResponsabilitM dans les
rapports de voisinage, (Paris, 1936), pp. 64, 1.12 et seq. It may be that, in 1968,
it is no longer necessary that malicious intent exist for the existence of an abuse
of rights; “antisocial use of right” may suffice, but ar appraisal of this refine-
ment in the doctrine of abuse of rights is beyond the concerns of this paper.

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Nuisance, on the other hand, results from the continued 10 exercise
by a proprietor of his right of ownership in such a way that he
compromises the equivalent right of his neighbour to enjoy his own
property, irrespective of the motive which prompted the author of
the interference to so exercise his right.” It consists in the con-
tinuing invasion 12 of the neighbouring property, the air space above
it or the depths beneath 13 by the ejection of dust, smoke, deleterious
gases, steam, noxious or offensive vapours, fetid odours, noise or
vibrations.

2. Some technical remarks

This area of the law appears to have lain dormant in Quebec
since 1940 in the sense that, to this writer’s knowledge, there has
been but one reported case since that date,14 whereas in France, on
the other hand, the number of reported cases appears to be steadily

10 Carbonnier, op. cit., t. 2, no. 57, p. 190.
” Baudouin, op. cit., p. 1285. Some French authors succinctly describe the
difference between abuse of rights and nuisance by using the terms “acte
abusif” and “acte excessif”: Carbonnier, op. cit, t. 2, no. 57, p. 188; L. Josserand,
Cours de droit civil positif frangais, 3e 6d., t. 1, (Paris, 1938), no. 1498, p. 826;
H. Lalou, op. cit., no. 962, p. 581; A. Colin et H. Capitant, Cours 6lmentaire de
6d., par L. J. de La Morandi~re, t. 1, (Paris, 1947),
droit civil frangais, le
no. 1025, p. 826. H. et L. Mazeaud et A. Tunc simply distinguish between the
exercise of the right of property “avec ou sans intention de nuire”: Trait6 tho-
rique et pratique de la responsabilit6 civile d6lictuelle et contractuelle, 6e 6d., t. 1,
(Paris, 1965), no. 562, p. 651.

12 W. de M. Marler, The Law of Real Property, Toronto 1932, no. 159, p. 70;
Aubry et Rau, op. cit., t. 2, no. 194, p. 195; Baudry-Lacantinerie et Chauveau,
op. cit., t. 6, no. 219, p. 166; Demolombe, Cours de Code Napolion, t. 12, (Paris,
1876), no. 658, p. 153; Domat, Les Lois civiles, liv. 1, tit. XII, sec. II, no. 8,
p. 333; Fournel, Traitg du voisinage, 4e 6d., t. 2, (Paris, 1834), p. 336; Larom-
bi~re, Des Obligations, t. 5, (Paris, 1857), pp. 693-694; Toullier, Le Droit civil
frangais, 2e 6d., t. 3, (Paris, 1824), no. 334, p. 211; Zachariae, Cours de droit
civil frangais, t. 2, (Strasbourg, 1839), no. 243, p. 57. This rule finds its origin
in the Digest of Justinian, D. 8, 5., In suo enim alii hactenus facere licet, quatenus
nihil in alienum immittat, fumi autem, sicut aquae, esse immissionem. See also
Drysdale v. Dugas, (1897), 26 S.C.R. 20 at p. 27, per Taschereau, J.; Humphries
v. Cousins, (1877), 2 C.P.D. 239 at p. 243, per Benman, J.; Chandler Electric
Company V. Fuller, (1893), 21 S.C.R. 337 at p. 339, per Patterson, J.; Anglade V.
Dumont, Req., 13 mars 1827, Dev. 1827.1.547.

l3 Art. 414 C.C.; Wurtele, J., in Drysdale v. Dugas, (1897), 6 B.R. 278 at

p. 282; Robidoux, J., in McCabe v. Lafontaine, (1921), 59 C.S. 250 at p. 252.

14 City of Montreal v. Arco Stone Ltd., [1962] R.L. 131 (C. Mun.)

(Davidson,
J.), a decision of the Municipal Court of Montreal under the City noise by-law,
no. 1448.

No. 13

NOTES

increasing. 15 In addition to the jurisprudence, a great deal of doc-
trinal attention has been paid to these legal problems in France,
while the jurists in Quebec have paid them scant notice. It is hoped,
therefore, that this paper may serve some purpose in collecting and
analyzing the abundant case material before 1940, particularly since
there is every reason to expect that litigation in this area will in-
crease because of the present focusing of attention on the problems
of air and water pollution.

The reasons for the lack of reported cases in Quebec since 1940
are not clear, but perhaps some of the following may be suggested.
First, the passage of municipal “nuisance” by-laws has probably
shunted a great number of potential damage suits into inferior
courts as infractions of by-laws at an early stage.-‘ Second, more
highly sophisticated urban planning has undoubtedly resulted in
zoning which keeps residential and potentially offensive industrial
areas at some distance from each other. Third, some small role is
probably being played by the increasing level of technology and
ventilation systems for both factories and homes which, if they
do not cut down the pollution factor, in the air, at least keep it
from invading homes in particularly obnoxious form. Fourth, there
may be some psychological aversion to such actions which results
from the increased expense of litigation and the long delays in the
courts.

A few preliminary observations must be made respecting the
applicability of French and common law authorities in this area
of the law in Quebec. 17 It almost goes without saying that decisions
from either of these jurisdictions are not in any way binding on
Quebec courts and may only be cited as rationes scriptae and then
only when it has first been ascertained that the principles upon
which the particular subject matter is based are the same.’ s The

15 See, for example, the cases cited in Mazeaud et Tunc, op. cit., t. 1, nos. 597-

599, pp. 688-694.

16 A. Mathieu, Le Bruit: r6glementation municipale et conventions, (1945),
5 R. du B. 27. See, e.g., City of Montreal v. Arco Stone, [1962] R.L. 131 (C. Mun.).
‘7 Generally, see P. B. Mignault, Le Code civil de la Province de Qudbec et
son interprgtation, (1-935-36), 1 U. of T.L.J. 104 at pp. 114-184; F. P. Walton,
The Scope and Interpretation of the Civil Code of Lower Canada, (Montreal,
1907), pp. 80 et seq.

1S As to the relevance of French authorities, see Herse v. Dufaux, (1872),
L.R. 4 P.C. 468 at p. 489, C.R. [6] A.C. 226 at p. 260, per Sir James Colville;
McArthur v. Dominion Cartridge Co., [19051 A.C. 72 at p. 77, C.R. [13] A.C.
374 at p. 381, per Lord Macnaghten; Maclaren v. A.-G. Quebec, [1914] A.C. 258
at p. 279, per Lord Moulton. As to the relevance of English decisions, see Desro-
siers v. The King, (1920), 60 S.C.R. 105 and Curley v. Latreille, (1920),
60
S.C.R. 131 at p. 133, per Anglin, J.

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Quebec and French law being based upon the same principles of
delict and civil responsibility, French authorities are ex hypothesi
relevant to those areas in the law of nuisance which are based on
those principles. Where the two systems have arrived at the same
point via different avenues of approach, as in the case of the de-
fence relating to the industrial character of the neighbourhood, both
will be discussed separately. Where the law is the same, authorities
from both jurisdictions will be cited on the same point uno flatu.
Where the law differs, as in the case of the defence relating to prior
statutory authorization, the French authorities will be neither men-
tioned nor discussed.

While generally the principles of tortious liability at common law
differ from the principles of civil responsibility in Quebec, in the
specific instance both legal systems base their action in nuisance
on the Latin maxim sic utere tuo ut alienum non laedas.19 Thus
the common law principles have been stated by the Supreme Court
of Canada to be “hardly distinguishable”20 from those of Quebec
in the law of nuisance and the courts have held that “French and
English authorities may be quoted, indifferently.”2′ 1 It must, how-
ever, be mentioned that there is no paucity of Quebec jurisprudence
and, wherever possible, these should be the ruling cases for the
practitioner; however, where there appears to be no case to cover
a particular point, there should be no reason not to refer to the
common law. On that basis this writer has relied most heavily on
the cases decided in this Province, referring the reader to common
law decisions where they may serve as additional authority and on
occasion as more apt or articulate statements of the law.

II) Positive characteristics

1. The measure of reasonable inconvenience

Although a nuisance may result only from what may be called
the exteriorization 22 of one’s right of proprietary enjoyment, it is

19 Canadian Pacific Railway Co. v. Roy, [1902] A.C. 220, (1902), 12 B.R. 543,
C.R. [12] A.C. 374. See also Hon. Charles Fitzpatrick, The Case of Roy and
The Canadian Pacific Railway Co., (1902), 8 R.L. n.s. 346.

20 Canada Paper Company V. Brown, (1922), 63 S.C.R. 243 at p. 247, per

Idington, J.

21 Robins V. The Dominion Coal Co., (1899), 16 C.S. 195 at p. 199, per David-
son, J. See also Crawford v. Protestant Hospital for the Insane, (1889), M.L.R.
5 C.S. 70 atp. 73, per Jette, J.; St. Charles v. Doutre, (1874), 18 L.C.J. 253 (B.R.)
at p. 257, per Ramsay, J.; Drysdale V. Dugas, (1897), 26 S.C.R. 20 at p. 23,
per Sir Henry Strong, C.J.

No. 1]

NOTES

only logical that in a modern society not every exteriorization will
be an actionable nuisance. 23 The rights of vicinage are reciprocal
and, to avoid the multiplicity of actions which the law abhors, cer-
tain inconveniences must be borne by neighbours.24 It
is for the
court to determine whether, in a given case, the inconveniences of
which the plaintiff complains are reasonable or extraordinary.

I1 faut distinguer, en effet, entre les inconv6nients ordinaires et, pour
ainsi dire, in6vitables du voisinage, et auxquelles on doit s’attendre et se
r6signer dans les associations au sein desquelles nous vivons, et les inconv6-
nients extraordinaires et impr6vus, qui sont tels que le dommage qui r6sulte,
excde 6videmment, comme l’a tr~s-bien dit la Cour de cassation,25 la mesure
des obligations ordinaires du voisinage. 26

If, having regard to the criteria which will be discussed below, they
are reasonable, they must be borne. If the line of reasonableness
is crossed or the “mesure des obligations ordinaires” exceeded, this
fact will be significant in determining whether the defendant has
been rendered liable in damages to the plaintiff.2 7 Sir W. Erle, C.J.,
of the English Court of Queen’s Bench, articulated this principle
a century ago :28

The cause of action, if any, lies in the excess of damage beyond what is
considered reasonable … This cause of action is immersed in undefined
uncertainty; there is no standard by which to measure degrees of annoyance,
or to estimate the effect of circumstances; each neighbour is a source of
some annoyance; proximity necessitates mutual forbearance; the degree of
forbearance to be required is measured by the sensibility to feelings of
delicacy of the tribunal which has to decide the case, and cannot be fore-
seen until that decision is given.

2. The necessity of damage

Before the courts will even consider the criteria by which they
determine whether the measure of reasonableness has been exceeded,

22 The term “ext6riorisation” is Robidoux, J.’s, in McCabe v. Lafontaine, (1921),

59 C.S. 250 at p. 253.

23 Laurent, Principes de droit civil frangais, 3e 6d., t. 6, (Paris, 1878), nos. 144,
145, pp. 195-196; Carpentier V. La Ville do Maisonneuve, (1897), 11 C.S. 242 at
p. 245, per Archibald, J.

24 Mazeaud et Tunc, op. cit., t. 1, no. 598, p. 689; Lalou, op. cit., no. 944, p. 575;
Crddit Lyonnais v. Ardisson, Req. 23 mars 1927, D.P. 1928.1.73, particularly the
note by R. Savatier at p. 75.

25 Rivoire V. Imbert, Cass. civ., 28 f6v. 1848, Dev. 1848.1.311.
26 Demolombe, op. cit., t. 12, no. 658, p. 160.
27 Leyat, op. cit., p. 283.
28 Brand v. Hammersmith Railway Company, (1867), L.R. 2 Q.B. 223 at p. 247.

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two conditions must be met. First, as is the case in any delictual
action, it must be shown that there exists damage, and then that
this damage is substantial,2’ direct 30 and distinct from that com-
mon to the inhabitants at large. 31 The nature of the damage is
measured by an objective, not a subjective, standard.32 Second, the
complainant must show that the prejudice which he suffers results
from the deprivation, not merely of a certain advantage which he
has derived from his property, but of a right to which he is entitled
by reason of his ownership.33

For instance,-if an owner erects on, his land a building which deprives his
neighbour of the prospect which he previously enjoyed, this only deprives
his neighbour of an advantage which he previously enjoyed, but to which

29 W.W. Kerr, A Treatise on the Law and Practice of Injunctions, 6th ed.,
(London, 1927), at p. 137; Adami v. The City of Montreal, (1904), 25 C.S. 1 at
p. 7, per Davidson, J.; Chartier v. British Coal Corporation, (1938), 76 C.S. 360
at p. 365, per McDougall, J.; St. Helen Smelting Company v. Tipping, (1866),
11 H.L.C. 642 at pp. 653-654, 11 E.R. 1483 at pp. 1487-1488, per Lord Weynsley-
dale; Salvin V. North Brancepeth Coal Co., (1873), L.R. 9 Ch. App. 705 at
p. 709, per James, L.J.

3OAdami v. The City of Montreal, (1904), 25 C.S. 1 at p. 7, per Davidson, J.;
Carbonnier, op. cit., t. 2, no. 57, p. 190: “Exceptionnellement, il peut s’agir d’un
dommage indirect.. .” He here refers to a French case in which the exceptional
fire hazard to the neighboring properties created by the presence of the particular
industry caused an increase in insurance premiums. Req. 27 janv. 1931, S.
19321.89.

31 Fleming, op. cit., p. 365; Canada Paper Company v. Brown, (1922), 63 S.C.R.
243 at p. 256, per Anglin, J.; Adami v. The City of Montreal, (1904), 25 C.S. 1
at p. 7, per Davidson, J. Cf. Claude v. Weir, (1888), 32 L.C.J. 213 (B.R.) at
p. 221, per Cross, J., where there were no special damages suffered by the
complainant. See also Cairns v. Canada Refining and Smelting Co., (1914), 6
O.W.N. 562 (C.A.) at p. 564, 26 O.W.R. 490 at p. 495, per Mulock, C.J.

32The Latin maxim, Lex non favet delicatorum votis, has been accepted as
the rule at common law, but the doctrine and jurisprudence on the point are
divided in France. To this writer’s knowledge there is no decision on the point
in Quebec and, in this writer’s opinion, the better view would appear to be that
of the common law. See Kerr, op. cit., p. 158: Fleming, op. cit., p. 378; Walter v.
Selfe, (1851), 4 DeG. M. and S. 315 at p. 322, 64 E.R. 849 at p. 852, per Sir
J. L. Knight Bruce. Noyes v. Huron & Erie Mtge Corp., [1932] O.R. 426, [19321
3 D.L.R. 143. In France, see Planiol et Ripert, op. cit., t. 3, no. 472, p. 447,
opposing the notion of “r~ceptivit6 personnelle”. Contra: Leyat, op. cit., pp. 309-
319; Mazeaud et. Tunc, op. cit., nos. 604-606, pp. 697-700, and the authorities
referred to there.

33 Marler, op. cit., no. 169, p. 76: Laurent, op. cit., t. 6, no. 142, pp. 190 et seq.;
Baudry-Lacantinerie et Chauveau, op. cit., t. 6, no. 217, p. 164; Demolombe,
op. cit., t. 12, no. 647, pp. 138-139.

No. 1]

NOTES

he had no legal or positive right and would therefore be no violation of his
ownership 3 4

It follows that the erection of any building which depreciates the
value of a neighbour’s property by its mere presence is not an
actionable nuisance, for it only deprives the owner of an advantage
he previously enjoyed but to which he had no absolute right.3 5 Such
a building could only give rise to an action if the use to which it
were put created a nuisance.

3. The character of the neighbourhood

Once damage is proved, the court must determine whether it has
been caused by a reasonable, and therefore unsanctionable, or by
an unreasonable, and therefore sanctionable, use of property. 36 The
standard of reasonableness is based almost wholly on the character
of the neighbourhood 37 and the level of inconvenience which must
be supported in cities is greater than in the country.38

Les inconv6nients normaux du voisinage varient suivant les circonstances.
Ils sont plus grands dans les villes, oii il y a des usines et des manufactures.
Les propri6taires de terrains urbains ne peuvent exiger que ces industries

34 Wurtele, J., in Drysdale v. Dugas, (1897), 6 B.R. 278 at p. 283. See also Craw-
ford v. Protestant Hospital for the Insane, (1891), M.L.R. 7 B.R. 57 at p. 75,
per Dorion, C.J.; Aub6 v. Boutet, (1931), 37 R.J. 474 (C.S.) at pp. 479-480, per
Archambault, J. Also Demolombe, op. cit., t. 12, no. 647, pp. 139-141; Toullier,
op. cit., t. 3, no. 328, p. 208; Zachariae, op. cit., t. 2, no. 243, pp. 57-58; Domat,
op. cit., Pt. 1, liv. 2, tit. 8, sect. 3, no. 9; and the following French cases, La
Commune de Fagnon v. Mass6, Cass. civ., 29 nov. 1830, Dev. 1831.1.110; La Com-
mune d’Apprieux v. Perrin et Termoz, Grenoble, 5 nov. 1834, Dev. 1834.2.491.

35 Aluminium Company of Canada v. Mackenzie, [1951] R.L. (B.R.) 65 at p. 78,
per Hyde, J.; Carpentier v. La Ville de Maisonneuve, (1897), 11 C.S. 242 at
p. 244, per Archibald, J.; Crawford V. Protestant hospital for the Insane, (1891),
M.L.R. 7 B.R. 57 at p. 75, per Dorion, C.J.; Pickard v. Corporation des Commis-
saires du Havre de Montral, (1932), 70 C.S. 85 at pp. 86-87, per Archer, J.

36 Demolombe, op. cit., t. 12, no. 658, p. 160.
37 What the French jurists refer to as “Ila qualit6 des lieux”: Domat, op cit.,
Pt. 1, liv. 1, tit. 12, sect. 2, no. 10; Demolombe, op. cit., t. 12, no. 659, p. 163.
St. Helen’s Smelting Company v. Tipping, (1866), 11 H.L.C. 642 at p. 650, 11
E.R. 1483 at p. 1486, per Lord Westbury, L.C.; Drysdale v. Dugas, (1897), 26
S.C.R. 20 at p. 23, per Sir Henry Strong, C.J.; Aubertin v. Montreal Light, Heat
and Power, (1936), 42 R.L. n.s. 424 (C.S.) at p. 440, per McDougall, J., “It is
the degree of mischief, having regard to the locality, with which the Court is
concerned”; Robins v. The Dominion Coal Co, (1899), 16 C.S. 195 at p. 200, per
Davidson, J.; Carpentier V. La Ville de Maisonneuve, (1897), 11 C.S. 242 at
p. 248, per Archibald, J., “…these inconveniences vary in kind and in extent
according to the circumstances of place and quality of the population”.

38 Demolombe, op. cit., t. 12, no. 659, p. 163. Colls v. Home and Colonial Stores
Ltd., [1904] A.C. 179 at p. 185, 73 L.J. Ch. 484 at p. 488, per Lord Halsbury, L.C.

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4migrent h la campagne. Ils doivent en supporter les inconv6nients qui sont
une consequence normale de leur pr6sence, comme le bruit, la fum6e, la
poussi6re. Les propri~taires de ces industries doivent faire tout en leur
pouvoir pour diminuer ces inconv6nients invitables, mais ils ne seront res-
ponsables en dommage que s’ils sont en faute.39

Within cities themselves there is a clear division in the jurisprudence
between the responsibility for obnoxious activities carried on in resi-
dential districts and those carried on in manufacturing areas.40
“What would be tolerable in a manufacturing district would be
intolerable in a residential district.”‘ 41 The courts have generally
been careful not to apply the “residential” decisions to “manufac-
turing” situations and vice versa, when the reasonableness of the
nuisance is a point in issue.42

Although the word “residential” is nowhere defined by the cases,
it would appear to apply to any area in which there are a sub-
stantial number of dwelling-houses, however humble or poor the
homes may be.43 Thus, an area in the vicinity of the Montreal har-
bour has been held to be residential. 44 Because of the nature and
low level of inconvenience which one home-owner would expect from
his neighbour, the courts have been very harsh in dealing with nui-

39 Montpetit et Taillefer, Droit civil de la Province de Quebec, t. 3, (Montreal,

1945), p. 108.

40 Demolombe, op. cit., t. 12, no. 659, p. 164.
41 Marler, op. cit., no. 160, p. 71. See also Robins v. The Dominion Coal Co.,
(1899), 16 C.S. 195 at p. 200, per Davidson, J., “For example, what might be
a nuisance on Sherbrooke Street would be none in the undoubtedly industrial
district within the bounds of which plaintiff lives.”; Sturges v. Bridgman,
(1879), 11 Ch. D. 852 at p. 865, per Thesiger, L.J., “What would be a nuisance
in Belgrave Square would not necessarily be so in Bermondsey.”; Bamford v.
Turnley, (1860), 3 B. and S. 62 at p. 79, 122 E.R. 25 at p. 31, per Pollock,
C.B., dissenting, “That may be a nuisance in Grosvenor Square which would
be none in Smithfield Market.” See, in this context, the note of Henri Capitant
to Gilet v. Laurens, Bordeaux, 5 mars 1903, D.P. 1908.2.49, “Tel dommage
paraltra supportable dans un faubourg industriel ou dans une rue commerqante
qui, au contraire, donnera lieu A des dommages-int6r~ts si la propri6t6 qui le
subit se trouve dans un quartier paisible, bourgeoisement habit6.” See also
Michon V. Varigny, Trib. civ. Lyon, 20 nov. 1926, Gaz. Pal. 1927.1.393; Mazeaud
et Tunc, op. cit., t. 1, no. 600, p. 695. Cf. Atty.-Gen. V. Cole & Son, [1901]
1 Ch. 205 at p. 206, per Kekewich, J.

42 For example, see the decisions of Chartier v. British Coal Corporation,
(1938), 76 C.S. 360 at p. 363, per McDougall, J., and Aubertin v. Montreal
Light, Heat and Power, (1936), 42 R.L. n.s. 424 (C.S.) at p. 442, per
McDougall, J.

43Chartier v. British Coal Corporation, (1938), 76 C.S. 360.
4 Ibid.

No. 1)

NOTES

sances caused by offensive trades in residential areas. A specific
example of what the Court of Chancery was willing to tolerate in
a residential area a century ago may be found in the following
dictum:

(W)hen in a street like Green Street the ground floor of a neighbouring
house is turned into a stable, we are not to consider the noise of horses
from that stable like the noise of a pianoforte from a neighbour’s house,
or the noise of a neighbour’s children in their nursery, which are noises
we must reasonably expect, and must to a considerable extent put up with.45
The Quebec courts have held the following to be abnormal and
unreasonable uses of property in residential areas: an electric water
pump in a City reservoir,46 city dumps,47 a soda-sulphate pulp pro-
ducing process giving off malodourous fumes, 48 a coal-unloading
station raising coal dust,49 a stone-cutting operation,50 stables re-
leasing fetid odours, 51 a power-house equipped with enormous gener-
ators producing noise, smoke and vibrations, 52 a fox-pen discharging
noxious smells,5 3 lime-kilns, 54 an asbestos mine,55 a quarry,56 and
a pork-curing factory.57

45 Ball v. Ray, (1873), 8 Ch. App. 467 at p. 471, per Sir G. Mellish, L.J.
Brief statements on the level of inconvenience to expect in a residential area
may also be found in Marler, op. cit., no. 160, p. 70 and in Laurent, op. cit.,
t. 6, no. 144, p. 195.

46 Adami V. The City of Montreal, (1904), 25 C.S. 1.
47 Boulanger v. La Cit6 de Quibec, (1934), 72 C.S. 445; Christin dit St. Amour
V. La Cit6 de Montrial, (1895), 7 C.S. 228; Ducker v. La Cit6 de Sherbrooke,
(1934), 40 R.L. n.s. 418 (CS.).

4sCanada Paper Company v. Brown, (1922), 63 S.C.R. 243.
49 Chartier v. British Coal Corporation, (1938), 76 C.S. 360. Cf. the case of
coal elevators and towers in an industrial area, Robins v. The Dominion Coal
Co., (1899), 16 C.S. 195.

50D6carie v. Lyall, (1911), 17 R.J. 299
5’Drysdale v. Dugas, (1897), 6 B.R. 278, 26 S.C.R. 20; Cit6 de Qudbec v.
Boucher, (1936), 60 B.R. 152. Cf. the case of stables in a manufacturing
neighbourhood, Riberdy V. Crdpeau, (1936), 42 R.L. n.s. 402 (G.S.); Bricault
dit Lamarche v. Masson, (1911), 40 C.S. 346.

(C.S.).

52A. Gareau v. Montreal Street Railway Company, (1900), 31 S.C.R. 463;

Montreal Street Railway Company v. F6lix Gareau, (1.901), 10 B.R. 417.

53 Genest v. Fillion, (1936), 74 C.S. 66.
54 Gravel v. Gervais, (1891), M.L.R. 7 C.S. 326.
55Dame Jacques v. Asbestos Corporation Ltd., [1940] C.S. 182.
56 Ruel v. Villeray Quarry, (1926), 64 C.S. 418.
57St. Charles v. Doutre, (1874), 18 L.C.J. 253 (B.R.).

McGILL LAW JOURNAL

[Vol. 14

I) Defences

1. The industrial character of the neighbourhood

It has repeatedly been held in each of the three jurisdictions
mentioned in this paper that what would assuredly be a nuisance in
a residential district might be none in an industrial area where
the level of inconvenience to be expected is considerably higher.58
It would of course be absurd to say that one who establishes a manufactory
in the use of which great quantities of smoke are emitted, next door to a
precisely similar manufactory maintained by his neighbour, whose works
also emit smoke, commits a nuisance as regards the latter.59

It follows that where the courts have found that the nuisance com-
plained of is not an uncommon or unique case in the neighbourhood
or where the plaintiff had carried on a similarly objectionable trade
himself, the action has not been maintained. 60 An exception to this
rule exists where the defendant has not conformed with building
or health regulations (1 or where it is obvious that no attempt has
been made to eliminate a nuisance where the court recognizes that
it could easily be done. 2 Thus the courts have maintained actions
against a stable, 3 a laundry and dyeing plant 64 and an establish-
ment producing electric light for a town, 65 while rejecting suits
instituted against a tar manufacturer,66 a stable, 67 a coal yard 08 and
a tannery.69

The French courts and jurists have arrived at the same result
as the Quebec and common law courts regarding the availability of

58 See supra n. 41. See also at common law the leading decision of St. Helen
Smelting Company v. Tipping, (1866), 11 H.L.C. 642, 11 E.R. 1483; and, in
the law of France, the leading cases, Gilet v. Laurens, Bordeaux, 5 mars 1903,
D.P. 1908.2.49, note H. Capitant, and Dupont v. Lecante, Cass. civ., 18 fdvr.
1907, D.P. 1907.1.385, note G. Ripert.

59 Sir Henry Strong, C.J., in Drysdale v. Dugas, (1897), 26 S.C.R. 20 at p. 23.
60 See discussion of Riberdy v. Cripeau, (1936), 42 R.L. n.s. 402 (C.S.) and

Cusson v. Galibert, (1902), 22 C.S. 493, infra at n. 86.

61 Bricault dit Lamarche v. Masson, (1911), 40 C.S. 346.
62 Bricault dit Lamarche V. Masson, (1911), 40 C.S. 346; Chalifour v. Mathieu,
(1929), 35 R.J. 197 (C.S.); Carpentier v. La Ville de Maisonneuve, (1897), 11
C.S. 242.

63 Bricault dit Lamarche v. Masson, (1911), 40 C.S. 346.
64Chalifour v. Mathieu, (1929), 35 R.J. 197 (C.S.).
65 Carpentier v. La Ville de Maisonneuve, (1897), 11 C.S. 242.
66 Aubertin V. Montreal Light, Heat and Power, (1936), 42 R.L. n.s. 424 (C.S.).
67Riberdy v. Cripeau, (1936), 42 R.L. n.s. 402 (0.S.).
6s Robins v. The Dominion Coal Co., (1899), 16 C.S. 195.
69 Cusson v. Galibert, (1902), 22 C.S. 493.

No. 1]

NOTES

the industrial character of the neighbourhood as a defence by juxta-
posing it with the defence of prior occupation and emerging with
a theory of “pr6-occupation collective” 70 which, unlike “pr&occupa-
tion individuelle”, 71 is a good defence to the action.72

Ce qui reste vrai, c’est qu’un industriel, s’6tablissant dans une localit6
d6termin6e et dans un quartier spfcial de cette localit6, peut tr6s l6gitime-
ment invoquer qu’il exploite son fonds suivant l’usage normal des lieux.
On peut reconnalitre ainsi l’existence d’une sorte de pr6-occupation collective.
Si le quartier est dfjA couvert d’usines’ et de fours, le propriftaire d’un
terrain serait mal venu A y faire batir une luxueuse villa et A se plaindre
ensuite des inconvfnients du voisinage. C’est lui, dans ce cas, qui donne A
son fonds une destination incompatible avec sa situation.73

2. The defence of reasonable care

Is proof by the defendant that he has taken all reasonable care
to avoid interfering with the proprietary rights of his neighbour suf-
ficient to exculpate him from liability? In France and at common
law the answer is clearly no. In Quebec ‘the answer is not clear.

A. The solution at common law

Briefly, the liability of the tortfeasor in an action for damages
caused by a nuisance is strict. When there is injury or inconvenience
exceeding that to be expected having regard to the locality, the
action will be maintained whether one has used the property negli-
gently or with all possible care in the exercise of his business.74

70 See Carbonnier, op. cit., t. 2, no. 57, p. 191; Mazeaud et Tunc, op., cit.,
t. 1, no. 601, pp. 695-696; Josserand, op. cit., no. 1505, p. 778; and the complete
treatment of the subject in Leyat, op. cit., pp. 336-344. See also the following
cases: Robert v. Schor, Besangon, 15 nov. 1934, S. 1935.2.94; Dupont V. Lecante,
Cass. civ., 18 f~v. 1907, D.P. 1907.1.385, note G. Ripert; Gilet v. Laurens,
Bordeaux, 5 mars 1903, D.P. 1908.2.49; Fontaine v. Brillais, Troyes, 20 juillet
1921, Gaz. Pal. 1924.2.560 and the note by H. Solus at (1925), 24 Rev. trim.
dr. civ. 144.

71 See infra, The defence of prior occupation, at pp. 142-144.
72 Demolombe, op. cit., t. 12, nos. 659-659 bis, pp. 163-167, alone among the
French jurists contends that “pr6occupation
is a good defence
to the action. See the criticism by Leyat, op. cit., pp. 323-336 and the cases
upholding that point of view cited in Mazeaud et Tunc, op. cit., t. 1, no. 601,
p. 696.

73 G. Ripert, in his note following Dupont v. Lecante, Cass. civ., 18 f6v.

individuelle”

1907, D.P. 1907.385 at p. 386.

74B. Wilson, A Choice of Values, (1961), 4 C.B.J. 448 at p. 453. See also
Ball v. Ray, (1873), 8 Ch. App. 467 at p. 469, per Lord Selborne, L.C.;
Chandler Electric Company v. Fuller, (1893), 21 S.C.R. 337 at p. 339, per
Patterson, J.

McGILL LAW JOURNAL

[Vol. 14

At common law, if I am sued for a nuisance, and the nuisance is proved,
it is no defence on my part to say and to prove that I have taken all
reasonable care to prevent it.75

The principle dates back to the old Case of the Thorns :76

In all civil acts the law doth not so much regard the intent of the actor
as the loss and damage of the party suffering… for though a man doth a
lawful thing, yet if any damage do hereby befall another, he shall answer
if he could have avoided it.77

It may be that the damage can only be avoided by cessation of the
activity itself, but this is no defence to the action.

If they cannot have two hundred horses together, even when they take
proper precautions, all I can say is, they cannot have so many horses
together.7 s
The Court of Common Pleas went even further in the case of
Humphries v. Cousins,7 9 holding the defendant liable although he
was unaware of the existence of the cause of the nuisance on his
property and f6r this reason was precluded from taking care to
ensure that the pipe would not become defective and thereby leak
waste matter into the basement of the plaintiff; per Benman, J. :0
Indeed, if it be once established that the plaintiff’s rights have been infringed
by the defendant, and that the plaintiff has been thereby damnified, the
fact that the defendant infringed them unknowingly and without negligence
cannot avail him as a defence to an action by the plaintiff.

B. The problem in Quebec

The problem in Quebec and in France regarding the availability
of the defence of reasonable care to an action to abate a proprie-
tary nuisance results from the fact that the action, having no foun-
dation in the articles on Real Property in the Code, has always been
taken under art. 1053.81 To most civilian legal minds, art. 1053
means “fault’ and “fault” connotes an illicit act 82 or at least an

75 Rapier v. London Tramways, [1893] 2 Ch. D. 588 at p. 599, per Lindley,
L.J. See also Polsue and Alfieri Ltd. v. Rushmer, [1906] 1 Ch. 234 at p. 250,
per Cozens Hardy, L.J.

76 (1466), Y.B. 6 Ed. IV, 7a. pl. 18.
77 Cited in Lambert v. Bessey, (1680), Sir T. Raym. 421 at p. 423, 83 E.R.

220 at p. 221.

78 Rapier v. London Tramways, [1893] 2 Ch. D. 588 at p. 602.
79 (1S77), 2 C.P.D. 239.
80 Ibid., at p. 245.
51In France, the action has been taken under arts. 1382, 1383 C.N. See

supra n. 4.

82 “La faute suppose un fait illicite.” Colin et Capitant, op. cit., t. 1, no.
1025, p. 824. See also J.-B. Blais, Responsabilit6 et obligations coutumiares
dans les rapports de voisinage, (1965), 63 Rev. trim. dr. civ. 261.

No. 1)

NOTES

actor who has not acted “en bon pare de famille”, who has not, in
other words, taken all reasonable care to avoid the damage. Ac-
cording to Prof. Cr~peau, 83 expressing this same idea in the more
modern category-oriented language of “the intensity of obligations”,
art. 1053 is only an obligation of means,

oii le d~biteur doit, non pas obtenir un r6sultat d6termin6, mais uniquement
prendre les moyens raisonnables qu’utiliserait un bon p~re de famille pour
parvenir au r~sultat d6termin6. 84

The effect of this reading of art. 1053 on the burden of proof is
as follows:

En effet, le crfancier d’une obligation de diligence doit supporter le fardeau
de la preuve car, pour prouver l’inex~cution de l’obligation du dfbiteur, ii
lui faut d~montrer que ce dernier n’a pas pris les moyens raisonnables
qu’exigeaient les circonstances, n’a pas agi comme un bon p~re de famille.85
If this is the correct view to take of the article, then proof by
the defendant that he had used the most advanced scientific tech-
niques and engineering methods and had sought the best advice,
in other words, that he had taken all reasonable care, would be
sufficient to repel the action.

a. The jurisprudence

Although a few isolated Quebec cases support the above view,
that is, the traditional view,86 the jurisprudence almost uniformly
supports the proposition that the proprietor is subject to liability

s8 Le Contenu obligationnel d’un contrat, (1965), 43 Can. Bar Rev. 1.
84 Ibid., at p. 34.
85 Ibid., at p. 38.
86 Two judgments of Archibald, J., which appear to adopt this view are
influenced by other considerations. In Carpentier v. La Ville de Maisonneuve,
(1897), 11 C.S. 242, some steps had been taken to reduce the noise and smoke
caused by an establishment for the supply of electric light to the town, but the
judge was “convinced by the proof that much could yet be done toward diminishing
the inconvenience which plaintiff suffers.” (at p. 250.) In Cusson v. Galibert,
(1902), 22 C.S. 493, defendant’s tannery was in a manufacturing neighbourhood
and plaintiff, who had used his property as a slaughter-house for many years,
had then created for himself “conditions much more objectionable than those
by which he is now surrounded.” (at p. 496.) Similarly, in the case of Riberdy
V. Crdpeau, (1936), 42 R.L. n.s. 402 (C.S.)
(Gibsone, J.), the plaintiff had
operated his own property as a carter for many years and, since the neighbour-
hood was not strictly residential, he could not complain of a stable, operated
reasonably, next door. In Aubertin v. Montreal Light, Heat and Power, (1936),
42 R.L. n.s. 424 (C.S.), while McDougall, J., found that the plant in question
had been maintained “in the most modern and scientific manner”, emphasis
was placed on the fact that the neighbourhood was not residential, that the
plaintiff’s land was totally undeveloped and that the odour of tar is not in
itself injurious.

McGILL LAW JOURNAL

[Vol. 14

as regards the damage caused once he is shown to be the author
of the nuisance.8 7

In general, the Quebec courts have not boldly articulated this
principle and have been content, upon finding the existence of a
nuisance of unreasonable dimensions, to close their inquiry there
without deciding whether reasonable care was, or could have been,
taken to avoid the damage, thus coming to the same thing in the
end. Where there is clear evidence that reasonable care has not been
taken or that the nuisance may, by means available to the party
causing it, be removed, the courts will, of course, not hesitate in
maintaining the action.88 The problem, not surprisingly, arises where
there is unequivocal evidence to the effect that all reasonable care
has been taken to avoid the damage. 89 On the several occasions when
the Quebec courts have been faced with the situation where the
greatest care had evidently been taken to avoid the nuisance, they
have held that it was no defence to the action.

Thus, in Chartier v. British Coal Corporation,90 McDougall, J.,

ruled :91

Evidence has been adduced to show that the defendant’s plant is operated
with modern equipment, is well and efficiently conducted, and efforts made
to cause as little inconvenience as possible. Since defendant has occupied

87 Adami V. The City of Montreal, (1904), 25 C.S. 1 at p. 7, per Davidson, J.;
Chartier v. British Coal Corporation, (1938), 76 C.S. 360 at p. 366, per McDou-
gall, J.; Christin dit St-Amour v. La Citj de Montreal, (1895), 7 0.S. 228 at
p. 229, per Gill, J.; Cournoyer v. De Tonnancourt (1935), 59 B.R. 420 at p. 430, per
Hall, J.; Crawford v. Protestant Hospital for the Insane, (1891), M.L.R. 7 B.R.
57 at p. 75, per Dorion, C.J.; Ddcarie v. Lyall, (1911), 17 R.J. 299 (C.S.) at
p. 303, per Tellier,- J.; St. Charles v. Doutre. (1874), 18 L.C.J. 253 (B.R.) at
p. 257, per Ramsay, J.; Drysdale v. Dugas, (1897), 6 B.R. 278 at p. 283, per
Wurtele, J., 26 S.C.R. 20 at pp. 25-26, per Sir Henry Strong, C.J.; A. Gareau V.
Montreal Street Railway Company, (1900), 31 S.C.R. 463 at p. 467, per Girouard,
J.; Genest V. Filion, (1936), 74 C.S. 66 at p. 67, per Langlais, J.; Dame Jac-
ques v. Asbestos Corporation Ltd., [1.940] C.S. 182 at p. 184, per Lalibert6, J.;
McCabe v. Dame Lafontaine, (1921), 59 C.S. 250 at p. 253, per Robidoux, J.;
Montreal Street Railway Company v. F6lix Gareau, (1901), 10 B.R. 417 at p. 429,
per Blanchet, J.; Ouellette v. Cit6 de Hull, (1934), 72 C.S. 239 (Trahan, 3.);
Ruel V. Villeray Quarry, (1,926), 64 C.S. 418 (Surveyer, 3.).

8 8 M azeaud et Tunc, op. cit., t. 1, no. 612, p. 704 go as far as to suggest the
following: “On comprend donc que les arr~ts s’efforcent toujours de ddcouvrir
une pareille faute h l’encontre du propri6taire; ils s’appuient tr6s souvent sur
le fait que les pr6cautions n~cessaires n’ont pas 6t6 prises et se montrent parfois
tr~s exigeants sur ce point.”

SO9Mazeaud et Tunc, op. cit., t. 1, nos. 594, 597, pp. 686, 688; R. Savatier,
Trait6 de la responsabilitd civile, 2e 6d., t. 1, (Paris, 1951), no. 71, p. 91; Henri
Capitant, note, D.P. 1908.2.49; G. Ripert, note D.P. 1907.1.385.

90 (1938), 76 C.S. 360.
91 Ibid., at p. 366.

No. 1]

NOTES

the premises, improved methods have been installed and extensive alter-
ations made to the buildings and plant with a view to minimizing dis-
comfort in the neighbourhood … Merely to show that great care has been
taken in the use of one’s property cannot, in law, be deemed sufficient to
justify the continuance of a nuisance arising therefrom. The duty of the
defendant goes further.

The care taken in the construction of an electrical plant in Montreal
Street Railway v. Gareau92 was no defence to’the action.

Le fait que l’appelante a construit son usine avec soliditf, qu’elle a 6rig6
ses machines suivant les r~gles de l’art et qu’elle les exploite avec prudence
et uniquement pour les fins pour lesquelles elles sont destinies, ne peut la
rendre indemne des dommages qu’elle cause.9 3

In the leading case of Drysdale v. Dugas,94 Sir Henry Strong, C.J.,
held, in spite of the uncontested proof that the stable which was
the cause of the nuisance has been constructed on the basis of the
most improved and scientific plans, according to the municipal regu-
lations and by-laws and with the best possible system of drainage
and ventilation, that the defendant was liable for the damages
caused to the plaintiff.9 5

It was much insisted upon at the argument here and in the courts below
also, that the fact that the appellant acted with extreme care and caution
in carrying on his business constituted a justification of the acts complained
of. This contention is, however, met and shown to be entirely without
foundation in Bamford v. Turnley.96
The jurisprudence in France has definitively established the
liability of the proprietor causing the damage in question whether
he has taken all possible precautions or not.9 7 The French courts
have accepted the principle of liability without fault (or at least
without its classical component, culpability 98) for a century and a
half.99

92 (1901), 10 B.R. 417.
93Ibid., at p. 429, per Blanchet, J.
94 (1897), 26 S.C.R. 20.
95Ibid., at pp. 25-26.
96 (1860), 3 B. & S. 62, 31 L.J.Q.B. 286, 122 E.R. 25.
97 Mazeaud et Tunc, op. cit., t. 1, no. 597, p. 689; Blais, loc. cit., pp. 263, 265-266.
9S Genevieve Viney, Le Dgclin de la responsabilit6 individuelle, (Paris, 1965),

no. 341, p. 281.

99 The earliest cases are Lingard v. Harichaux, Metz, 10 nov. 1808, S. 1808.2.438;
Mercy v. Mangin, Metz, 16 aofit 1820, Dev. 1919-1821.2.309; and the following
four cases, Puzin v. Derosne, Paris, 16 mars 1841, Duburcq v. Poteau-Jacquart,
Douai, 10 janv. 1843, Gaudry v. Lemire, Rouen, 18 nov. 1842, and Chalme v.
Dorbeaux, Rouen, 6 d6c. 1842, all reported at D.P. 1843.2.137. Among the most
recent French decisions on the point are Socigtg des hauts fourneaux de Chasse v.
Lavigne, 29 mars 1962, Bull. civ. 1962.2.258; Carri6re v. Reyne, 7 juin 1963,
Bull. civ. 1963.2.811; Socidt6 Manufacture d’Estampage du Nord-Est v. Barillet,
6 nov. 1963, Bull. civ. 1963.2.529; and Socigtg Frigos-Nantais V. Charriau,
27 mai 1964, Bull. civ. 1964.2.310.

McGILL LAW JOURNAL

[Vol. 14

En effet, elle (i.e. the law) n’a prescrit l’emploi de certaines precautions
A ceux qui veulent 6lever des fours ou autres constructions dangereuses,
que pour que les voisins n’eussent point 4 en souffrir, et dans la pr~somption
que ces precautions seraient suffisantes; si donc, malgr6 ces m6mes precau-
tions prises, lesdites constructions nuisent encore aux voisins et leur causent
de graves inco-mmodit~s, il est clair qu’il doit y 6tre pourvu; autrement le
voeu de la loi serait tromp6 et les voisins grev6s d’un pr6judice qu’elle a
essentiellement voulu leur 6viter. 0 0

Although it is thus clear that in France the courts will not hesitate
to apply art. 1382 C.N. to a case where the “mesure des obligations
ordinaires” has been exceeded whether fault in its classical sense
is present or not, the jurists have long sought to rationalize or
explain these decisions by imputing to the defendant’s conduct a
measure of blameworthiness, culpability, heedlessness, negligent con-
duct or the like.1 1

b. The doctrine

Briefly, and somewhat broadly, the French jurists are divided
into two schools in so far as the basis for the liability for nuisance
is concerned. The first, apparently conceding that fault is necessary
to the action under art. 1382 C.N., is composed of jurists variously
defining that fault as an act which exceeds “la mesure des obliga-
tions ordinaires de voisinage”,’10 2 generates an immissio onto the
property of the neighbour, 10 3 causes “A ses voisins une g~ne sup6-
‘on doit normalement souffrir”,’ 4 breaches the
rieure A celle que
“obligations de voisinage”
or
abuses one’s right of ownership. 0 6

imposed by the Code Napoleon, 10

100Mercy v. Mangin, Metz, 16 aofit 1820. Dev. 1819-1821.2.309.
101For a general review of the various theories which have been proferred
and criticisms thereof, see Carbonnier, op. cit., t. 2, no. 59, pp. 194-1.95; Leyat,
op. cit., pp. 71-158; Ripert, op. cit., pp. 244-284; Mazeaud et Tunc, op. cit., t. 1,
nos. 615-619, pp. 705-707; Blais, loc. cit., pp. 278-284.

102 H. et L. Mazeaud, in Mazeaud et Tunc, op. cit, t. 1, no. 620, p. 708. Tunc
takes a different position. See infra n. 104. See also Savatier, op. cit., no. 71,
p. 90; Lalou, op. cit., no. 942, p. 575.

103 Leyat, op. cit., passim, especially at pp. 158 et seq.
104 Tunc, in Mazeaud et Tunc, op. cit., t. 1, no. 621-2, pp. 709-711. See his
criticism of H. et L. Mazeaud, ibid., no. 621, pp. 708-709. See also Planiol et
Ripert, op. cit., t. 3, no. 471, p. 446, where the fault is seen as causing the “gene
exceptionnelle sans r6parer le pr6judice”.

105 Capitant, loc. cit. See supra n. 5.
106 Colin et Capitant, op. cit., t. 1, no. 1025, pp. 824-825. Note that the 11th
edition referred to in this paper was “entibrement refondu et mis A jour” by
L.J. de la Morandibre.

No. 11

NOTES

The second school espouses the theory of risk “sous le masque
de la faute”, say Mazeaud et Tunc.1 0 7 In fact, Josserand, 0 8 for one,
appears to mask nothing. He goes as far as the common law theorists
who advocate risk as the only admissible theory of allocation of
tort loss liability in the modern world. 0 9

(C)’est un principe de justice distributive et qui tend b p6n~trer de plus
en plus dans le droit, que celui qui cr~e un risque doit, si ce risque vient
h se rfaliser aux d6pens d’une tierce personne, r6parer les dommages
(L)’acte excessif, encore que non fautif, devient une source de
causfs…
responsabilit6, parce que cr6ateur d’un risque exceptionnel et anormal.n 0
The theory of risk has recently been expounded in France by Mlle.
Genevieve Viney “I and placed upon solid logical ground.

Or, il est rationnellement impossible de tenir pour une faute l’ouverture
r~gulibre d’une salle de spectacles, malgr6 le caract~re insupportable du
trouble qu’il apporte au voisin, locataire A titre d’habitation.n 2

On peut cependant, sans artifice, faire de la thdorie des troubles de
voisinage, un chapitre particulier de la responsabilit6 de l’exploitant pro-
fessionnel, car c’est lorsqu’elle frappe ce dernier qu’elle prend toute son
originalit4 et se distingue v6ritablement du droit commun de la responsabilit6
pour faute.11 3

D6fini comme une “charge sociale”, le trouble anormal ou excessif, issu
du voisinage, doit logiquement Ure r~percut6 sur la soci6t6. Or, nous l’avons
vu, la qualit6 d’exploitant professionnel conf~re au responsable une facilit6
exceptionnelle pour effectuer ce transfert des risques en le diffusant sur
les consommateurs. n 4
It was recognized as long ago as 1900 by Hauriou 115 that the
theory of fault functioned well when an individual was able to oversee
all the details of his industry, the exploitation of which exceeded
neither the strength of his personality nor his diligentia. The
existence of the “grande entreprise” is incompatible with the notion
of the pater familias as the basis of delictual liability in this area.

c. A suggested solution

It is clear then that the classical notion of fault has little, if
any, place in the law of nuisance, but if fault as a concept need still
be retained in some form, it is submitted that it may be reconciled

107 Op. cit., t. 1, no. 615, p. 705.
108 Op. cit., nos. 1503, 1505, pp. 829, 830.
109 Fleming, op. cit., pp. 4-15.
110 Josserand, op. cit., no. 1505, p. 830.
111 Op. cit.; see supra n. 98.
112 Ibid., no. 341, p. 281.
113 Ibid., no. 342, p. 282.
114 Ibid., no. 346, p. 287.
115 Note at S. 1900.3.1 at p. 3.

McGILL LAW JOURNAL

[Vol. 14

with the Quebec jurisprudence and the traditional understanding
of. art. 1053 in the following way. If “fault”, as it is used in that
article, be interpreted as “the breach of a legal duty”,”” then the
intensity of the obligation imposed by art. 1053 may, in each case,
be determined by first ascertaining the intensity of the legal duty in
question. This approach would free the courts from the rigid and
unyielding scope of applicability of the general artic!e on delictual
responsibility and would obviate the present “forcing” of situations
into the confines of fault and reasonable care. This interpretation
would give the article the flexibility it must have been intended to
possess: the application indifferently to breaches of any legal duty,
whether its intensity be that of means, result or warranty. The
wording of the last clause of the article supports this view by
stating that fault may consist in the mere performance of a “positive
act”, independently of “imprudence, neglect or want of skill”.’ 7

It is true that one may argue, in support of Prof. Cr6peau’s
interpretation of art. 1053, that one is not using the care of a
“bon pare de famille” in establishing the nuisance-generating industry
in a residential neighbourhood in the first place, but this is to confuse
the improper manner of doing something which, if done properly,
would not be sanctionable with impropriety in doing the thing at all.
The first is negligence; the second stricto sensu is not. Furthermore,
such an approach cannot be reconciled with the line of cases concerning
the prior occupation of the author of the nuisance, which will be
discussed in the following section.

3. The defence of prior occupation

With the exception of three cases, all involving tanneries,” 8
the Quebec courts have consistently held that the prior occupation
of the defendant gives him no right to continue the nuisance without

116 Planiol, TraitM l6mentaire de droit civil, 4e 6d., t. 2, Paris 1907, no. 863,
p. 275: “La faute est un manquement h une obligation pr~existante, dont la loi
ordonne la r~paration quand il a caus6 un dommage A autrui.”

117 Art. 1383 C.N. is to the same effect. See supra n. 4.
“1SMcGibbon v. Bidard, (1886), 30 L.C.J. 282; M.L.R. 6 B.R. 422: note here
that the Court of Appeal found, not only that the respondent had come to the
nuisance, but that no nuisance had in fact existed before he had been “instru-
mental in having the drain in question covered over, and in this way had aggra-
vated the nuisance, in consequence of which he was not entitled to claim damages”.
(at p. 285.) In Cusson v. Galibert, (1902), 22 C.S. 493 at p. 496, Archibald, J.,
found that “his occupation was subsequent to that of the defendants, and that
plaintiff actually used his own property for years as a slaughter-house, thus
creating for himself conditions much more objectionable than those by which

N o. 1]

NOTES

indemnifying the plaintiff for the damage which he has caused. 119
In Drysdale v. Dugas, Wurtele, J., held that “Everyone is bound
to know the law and he (the defendant) must be presumed to have
foreseen this consequence when he built his livery stable.” 120

Every right, from absolute ownership in property down to a mere easement,
is purchased and holden subject to the restriction that it shall be so exercised
as not to injure others. Though at the time it be remote and inoffensive,
the purchaser is bound to know at his peril that it may become otherwise
by the residence of many people in the vicinity, and that it must yield to
by-laws and other regular remedies for the suppression of nuisances. 1 2 1
Thus, in a case where the defendant had erected his lime-kilns
“en pleine campagne” forty years before the plaintiff had purchased
his property and the city had spread out to the nuisance, the court
held that the defendant was liable to pay damages although not to
suffer the suppression of his trade.1 22

Considrant que dans l’application de ce principe, il n’y a pas lieu de
distinguer entre les propriftaires voisins qui ont construit avant l’6rection
de P6tablissement industriel et ceux qui ont biti apr~s le commencement
de son exploitation, ces derniers n’ayant us6 que d’un droit en b5tissant

he is now surrounded”. See also the judgment of Cross, J., in Claude v. Weir,
(1888), 32 L.C.J. 213 (B.R.) at p. 222 and the considgrants of the Court reported
in (1888), M.L.R. 4 B.R. 197 at p. 223. The remarks of Cross, J., at 221 in
32 L.C.J. and those of Dorion, C.J., at 214 in M.L.R. 4 B.R. to the effect that
causality was not proved between the acts of the defendant and the damages
suffered by the plaintiff undoubtedly render the remarks of the learned judges
as to the effect of prior occupation obiter.

119 Gravel v. Gervais, (1891), M.L.R. 7 C.S. 326 at p. 334, per Taschereau, J.;
St. Charles v. Doutre, (1874), 18 L.C.J. 253 at p. 257, per Ramsay, J.; Jacques v.
Asbestos Corporation Ltd., [1940] C.S. 182, per Lalibert6, J.; Ruel v. Villeray
Quarry, (1926), 64 C.S. 418, per Surveyer, J.; Drysdale v. Dugas, (1897), 26
S.C.R. 20 at p. 25, per Sir Henry Strong, C.J., 6 B.R. 278 at p. 286, per Wurtele, J.
See also Kerr, op. cit., pp. 189-190 and the following cases: Sturges v. Bridgman,
(1879), 11 Ch.D. 852 at p. 859, per Jessel, M.R.; Hurlbut v. McKone, (1887),
55 Conn. 31; Commonwealth v. Upton, (1856), 6 Gray 473 at pp. 475-476, per
Merrick, J.; Fertilizing Co. v. Village of Hyde Park, (1878), 97 U.S. 659 at
p. 668, 24 L. Ed. 1036, per Swayne, J. With the exception of Demolombe, op. cit.,
t. 12, nos. 659-659 bis, pp. 163-167, the French jurists unanimously reject the
validity of “preoccupation individuelle” as a defence to the action, while accepting
that of “preoccupation collective”. See supra, The industrial character of the
neighbourhood, at pp. 134-5. See also, by way of example, Liotardi v. Roche, Aix, 19
nov. 1878, S. 1879.2.139; L6vy V. Zohra bent Aouda bent Touhami, Alger, 22 f6v.
1898, S. 1899.2.107, D.P. 1899.2.6; Dupont V. Lecante, Cass. civ., 18 fdv. 1907,
D.P. 1907.1.385.

120 (1897), 6 B.R. 278 at p. 286.
121 Fertilizing Co. V. Village of Hyde Park, (1878), 97 U.S. 659 at p. 668, 24

L. Ed. 1036, per Swayne, J.

122 Gravel v. Gervais, (1891), M.L.R. 7 C.S. 326 (Taschereau, J.).

McGILL LAW JOURNAL

[Vol. 14

sur leur propridt6, et ce droit ne pouvant 6tre l6s6 par le fait de rexistence,
mime antdrieure, d’un 6tablissement nuisible.123
The English Court of Chancery went even further than merely
protecting the right of a subsequent acquirer to build and live upon
his land in peace and comfort in Sturges v. Bridgman.1 24 In
that
case the court ordered the indemnification of a long-time possessor
against an anterior nuisance of which he had not previously com-
plained and which had not, in fact, been a nuisance to him until
the tortfeasor had put his land to a new purpose which made it so.
The fact that the man has made a noise which has not injured me or
interfered with my comfort or enjoyment in any way, cannot deprive
me of my right to the land, or interfere with my right to come to the
Court when it does seriously interfere with my comfortable enjoyment.125

4. Public necessity of the activity

The value, usefulness or even necessity of the industry or trade
to the public at large is no defence against an action taken by a
proprietor who has proven that he has suffered substantial, direct
and distinct damage which the Court has found to be unreasonable
with respect to the character of the neighbourhood.1 2

It is no answer to say that the defendant is only making a reasonable
use of his property, because there are many trades and many occupations
which are not only reasonable, but necessary to be followed, and which
still cannot be allowed to be followed in the proximity of dwelling-houses,
so as to interfere with the comfort of their inhabitants. I suppose that
a blacksmith’s trade is as necessary as most trades in the kingdom; or
I might take instances of many noisy and offensive trades, some of which
are absolutely and indispensably necessary for the welfare of mankind
that some houses and pieces of land should be devoted; therefore I think
that is not the test.12 7
The Supreme Court has followed this statement of the law on
two occasions, 28 issuing an injunction in one of the cases despite

123 Ibid., at p. 334.
124 (1879), 11 Ch.D. 852.
125 Ibid., at p. 859, per Jessel, M.R.
126 Note that there will be an exception to this rule in the case of a corporation
statutorily empowered to pursue certain purposes from which damage may result
to property-owners. See infra, The Defence of Statutory Authorization, at pp.
145-7.

127 Broder v. Saillard, (1876), 2 Ch.D. 692 at p. 701, per Jessel, M.R. For
a similar holding in a Quebec case, see Drysdale v. Dugas, both in the Court
of Queen’s Bench, (1897), 6 B.R. 278 at p. 286, and in the Supreme Court,
(1897), 26 S.C.R. 20 at p. 25. More recently, see the statement of Lacourciere, J.,
in Plater v. Town of Collingwood, (1967), 65 D.L.R. (2d) 492 (Ont. H. C.)
at p. 49,7.

12sDrysdale v. Dugas, see supra n. 83, and Canada Paper Company v. Brown,
(1922), 63 S.C.R. 243. See also La Ville de Sorel v. Vincent, (1888), 32 L.C.J.
314 (B.R.) at p. 315, per Gill, J.

No. 1]

NOTES

the fact that the industrial process in question represented a material
advantage to the company on which the prosperity of the town in
which it was situated depended; per Idington, J. :129

to itself but are non-existent

the exercise by appellant of powers

The argument, that because
it
arrogates
to the
prosperity of the little town or village in which the appellants’ works are
situated, seems to have led to a mass of irrelevant evidence being adduced,
and as a result
thereof the confusion of thought that produces the
remarkable conclusion that because the prosperity of said town or village
would be enhanced by the use of the new process therefore the respondent
has no rights upon which to rest his rights of property.

law, may conduce

in

I cannot assent to any such mode of reasoning or that there exists
law any such basis for taking from any man his property and all

in
or any part of what is implied therein.

A contrary view was expressed by Dorion, C.J., of the Court of
Queen’s Bench in the case of Claude v. Weir,130 affirmed by the
Supreme Court,131 but the remarks are obiter.132

5. The defence of statutory authorization

Generally speaking, corporations constitute “ideal or artificial
persons”. 33 They are thus subject to the ordinary laws respecting
delictual liability 3 4 except in the case where they are statutorily
endowed with the right to do certain acts. 35 No liability can arise
from the performance of those acts, provided that the rights are

129 Canada Paper Company v. Brown, (1922), 63 S.C.R. 243 at p. 248.
130 (1888), M.L.R. 4 B.R. 197 at pp. 220-221. The case is also reported at
(1888), 32 L.C.J. 213, but the remarks of Dorion, C.J., are too extensively
abridged there to bear on this issue. Note that the remarks of Cross, J., on
other points are reported more extensively
the latter report. See as an
interesting comparison to the remarks of Dorion, C.J., in this case his obiter
remarks in Crawford v. Protestant Hospital for the Insane, (1891), M.L.R. 7
B.R. 57 at p. 75: “The current of the authorities is that however useful an
institution is,
is detrimental to the neighbours it may be ordered to be
destroyed.”

in

if

it

13’Sub nom. Weir V. Claude, (1890), 16 S.C.R. 575. Taschereau, J., dismissed
the court

the appeal “entirely adopting the reason of Chief Justice Dorion in
below”.

132 See supra n. 118.
’33 Art. 352 C.C.
134 Art. 356 C.C. See also Marler, op. cit., no. 168A, p. 75; Gareau v. Montreal

Street Railway Company, (1900), 31 S.C.R. 463 at p. 467, per Girouard, J.

135 The law of France regarding the consequences of statutory authorization
on nuisance was incorporated into the law of Quebec by the Court of Queen’s
Bench in Canadian Pacific Railway Co. v. Roy, (1.900), 9 B.R. 551. See e.g. the
statement of Hall, J., at p. 571, but this position was rejected out of hand by
the Privy Council, [1902] A.C. 220, (1902), 12 B.R. 543, C.R. [12] A.C. 374.

McGILL LAW JOURNAL

(Vol. 14

exercised properly, without negligence on the part of the corporation,
in the place and manner indicated by the legislation. 13 By such
a grant or authorization a corporation gains

the right to do not only what is convenient, or what is usual, or what is
common in the district, or what is simply reasonable, but what is necessary
for the use and enjoyment of the right granted. 3 7

It follows that there is complete immunity for any damage which
is the inevitable result of the exercise of this right.138

(Y)et when the legislature has sanctioned and authorized the use of a
particular thing, and it is used for the purpose for which it was authorized,
and every precaution has been observed to prevent injury, the sanction of
the legislature carries with it this consequence, that if damage results
from the use of the thing independently of negligence, the party using
it is not responsible.139

Although the immunity may work a special injury against an
individual, that individual has no action and will not have any
remedy unless one is provided in the statute granting the powers. 4 0
It must be remembered that “such powers are not in themselves
charters to commit torts and to damage third persons at large”‘ 14 1
and that there is no protection afforded to a corporation negligent
in the exercise of the powers granted to it.142 Furthermore, negligence
need not even be proved when a statutorily endowed corporation does
something which it has not been expressly authorized to do and

130 Canadian Pacific Railway Co. v. Roy, [1902] A.C. 220, (1902), 12 B.R. 543,
C.R. [12] A.C. 374; Booley v. Canadian National Railways, (1937), 62 B.R. 193;
Canadian National Railways v. Seiwell, [1,956] B.R. 443; The Grand Trunk
Railway Company v. Labr~che, (1923), 64 S.C.R. 15; Grenier V. Ville de Drum-
mondville, (1929), 47 B.R. 454; Vaughan v. The Taff Vale Railway Company,
(1860), 5 H. & N. 679, 157 E.R. 1351; Purmal v. Medicine Hat, (1908), 7 W.L.R.
437.

137 Aubertin V. Montreal Light, Heat and Power Cons., (1936), 42 R.L. n.s.

424 (C.S.) at p. 444, 74 C.S. 171 at p. 177.

138Manchester Corporation v. Farnworth, [1,930] A.C. 171 at p. 183, per
Viscount Dunedin; Canadian Pacific Railway Co. V. Roy, [1902] A.C. 220 at
p. 229, per the Lord Chancellor; Plater v. Town of Collingwood, (1967), 65
D.L,R. (2d) 492 (Ont. H.C.).

139 Vaughan v. The Taff Vale Railway Company, (1860), 5 H. & N. 679 at

p. 685, 157 E.R. 1351 at p. 1354, per Cockburn, C.J.

14o Mayor and Councillors of East Fremanthe V. Annois, [1902] A.C. 213 at
p. 217, per Lord Macnaghten; Hammersmith Railway Co. v. Brand, (1869), L.R.
4 H.L. 171 at p. 215, per Lord Cairns.

141 Quebec Railway, Light, Heat and Power Company Limited v. Vandry,

[1920] A.C. 662, 48 B.R. 278 at p. 291, per Lord Sumner.

142 Grenier v. Ville de Drummondville, (1929), 47 B.R. 454 at p. 457, per
Rivard, J.; The Grand Trunk Railway Company v. Labr~che, (1923), 64 S.C.R.
15 at p. 23, per Anglin, J.; Aubertin V. Montreal Light, Heat and Power Cons.,
(1936), 42 R.L. n.s. 424 (C.S.) at p. 444, 74 C.S. 171 at p. 178, per McDougall, J.

No. 1]

NOTES

which is not incidental to those purposes which it has been authorized
to pursue. 143 This will also be the case where the right is not exercised
in the ordinary mode of exercising such a right and “in such manner
as to cause the least possible inconvenience or injury to the Public.”1
14
Thus, in the case of Adami v. The City of Montreal,4 5 the City was
held liable for installing a noisy electric water pump as a substitute
for the quieter and less efficient steam pumps used formerly.

Now, there is no dispute that the respondents can pump water up to the
high level reservoir without using an electrical pump of this kind. They
have committed
to a pure experiment, and they cannot be
permitted to work this out at the cost of the health and suffering of an
extended neighbourhood. If express and statutory concession or authority
existed for the use of such a pump, then whatever the results, they would
need to be borne. But no such law exists.

themselves

A public duty authorized by statute must be distinguished from the

manner of its execution. 14 6
It should also be noted that no action can be maintained against
the municipal corporation which authorized another corporation to
undertake certain projects when a nuisance is caused by the grantee
corporation.147

The basis for the protection of the statutorily endowed corporation
against actions for damages occurring in the exercise of the exercise
of the rights conferred is the doctrine of the supremacy of the
legislature, 48 coupled with the presumption that the legislature
conferred the rights for a purpose which it does not intend should
be defeated. 49 Thus the exercise of that right cannot constitute a delict
or tort no matter how great the inconvenience to the public or to an
individual,3 0 provided that the authority has been obeyed to the
letter and that there has been no negligence (which the legislature
cannot be presumed to have authorized).

14 3 Paris v. Marine Industries Ltd., [1944] B.R. 436 at p. 445, per Galipeault, J.;
Cit6 de Montreal v. Lesage, (1922), 33 B.R. 458 at pp. 460-461, per Martin, J.;
Jones v. Festiniog Railway Co., (1868), L.R. 3 Q.B. 733 at p. 736, per Black-
burn, J.; Hon. Charles Fitzpatrick, The Case of Roy and The Canadian Pacific
Railway Co., (1902), 8 R.L. n.s. 346 at pp. 352, 365.

144 Ross v. La Compagnie des Chars Urbains, (1878), 10 R.L. 27 (B.R.) at

p. 50, 2 L.N. 338 at p. 339.

145 (1904), 25 C.S. 1.
146 Ibid., at p. 11, per Davidson, J. See also Plater v. Town of Collingwood,

(1967), 65 D.L.R. (2d) 492 (Ont. H.C.) at p. 496.

14 7La Corporation de la Cit6 de Trois-Rivi~res V. Lessard, (1880), 10 R.L.
441 (B.R.); La Corporation de la Cit6 de Quebec v. Renaud, (1884), 19 R.L. 590;
H~bert V. La Cit de St-Jean, (1935), 41 R.J. 408 (C.S.).

148 Canadian Pacific Railway Co. v. Roy, [1902] A.C. 220.
149 Hammersmith Railway Co. v. Brand, (1869), L.R. 4 H.L. 171.
150 Rex v. Pease, (1832), 4 B. & Ad. 30; 110 E.R. 366.

McGILL LAW JOURNAL

(Vol. 14

IV) Conclusion

We may conclude by observing that, whatever be the role of
French and English authorities in the courts of this Province, these
jurisdictions and our own share, in terms at least of practical
consequences, a nearly common set of principles in this area of
the law. Where differences exist, not of nomenclature but of substance,
as in the case of “r6ceptivitM personnelle” and the defence of statutory
authorization, it is the law of France which, on the basis of the
jurisprudence, appears to be the “odd man out”. The most significant
of the principles held in common is, of course, that of responsibility
without fault and the approach, as a corollary, to a theory of risk:
ubi emolumentum est ibi onus esse debet. We may conclude from
this that the fact that an area was commercially or industrially
zoned would be no defence to an action except in so far as it tended
to show, in the presence of other factors as well, that the area was
industrial in character and that the inconvenience caused did not
exceed that which might be expected in the area.

The fact that the defences of reasonable care, prior occupation
and public necessity of the activity are generally rejected by the
courts has hidden the fact, due to the limited scope of this paper,
that they may play a determinative, role in the assessment of damages
or the willingness or refusal of the court to grant an injunction.
These questions, along with the problem of future damages, are
properly the subject of a separate paper devoted to that subject
alone.

The problems in the law of delict which have been raised in
this paper are not limited to this narrow area of the law and it is
hoped that, with the revision of the Civil Code, provision will be
made for the more flexible and progressive attitude toward civil
responsibility necessitated by our modern industrial society.

Ronald I. COHEN:

* Editor-in-Chief, McGill Law Journal.