Disputes Between Individuals

A major role of the courts is to hear from parties that claim to have suffered harm and to make a decision about who caused the harm.  The courts consider whether the party who is alleged to have caused damage violated the rights of the party who suffered the damage. 

Occasionally legislation will set out when an individual will be responsible for the damage that he or she has caused. However, usually the rights and responsibilities of the parties are defined by the Common Law – rules developed over the years in the decisions of judges.

Common Law

Hundreds of years ago in England when judges were first called upon to decide between the claims of two individuals, the judges tried to apply the conventions and customs of ownership and rights that the local community had developed over the years.  This was the origin of the “common law”.

As noted on the page about the courts, judges will, where possible, follow earlier judgments about similar issues.  Thus, a decision which said what the conventions and customs of the common people were regarding, say, private property, became increasingly entrenched in the law. 

Thus, while you can look at text books describing the common law, the common law is not written down in one place in the same way as Legislation.  Instead, it is gleaned by reading the decisions of judges looking at similar issues. 

Nor is the common law limited to considering the customs and conventions of England of many years ago.  Customs and Conventions of First Nations (as with other colonized peoples) have been held to form a part of the common law.  And the common law evolves slowly to reflect the expectations of modern Canadians. 

The Common Law over the years has developed a series of categories for activities that cause harm and damage (known as causes of action).  If you can show that a wrong you suffer was caused by one of the recognized categories of activities, then you may be able to sue for damages suffered.  If you cannot, then it may be more difficult. 

Legislation can, and often does, modify common law decisions about rights and responsibilities.  As this happens new judge-made “common law” decisions interpret and incorporate the new rules.

Bringing the Dispute to Court

A cause of action (whether under the common law or as provided for in legislation) is right to sue an individual or group before a judge to ask for compensation or an order preventing future damage.  A lawsuit is usually brought by an individual (known as the “plaintiff”) who has directly suffered damage alleged to be from the actions of another person (the “defendant”). 

The Plaintiff initiates a lawsuit by filing a Writ of Summons, which indicates to the defendant and the court that a lawsuit has been started.  He or she must also file a Statement of Claim, which tells the plaintiff’s story and explains why the court should (according to the plaintiff) make an order against the defendant.  The defendant then files a Statement of Defence, in which he or she responds to the plaintiff’s allegations.

A plaintiff must demonstrate to a Court that he or she (a) has suffered personal or financial damage, or is likely to do so, (b) resulting from the defendant’s actions; and (c) those actions fall within one of the “causes of action” recognized in law.  Even if all of the above are proved, the defendant may be able to demonstrate that he or she has some other defence recognized in the common law. 

Even before the hearing of the trial, the plaintiff will sometimes claim an “interim injunction”, preventing the defendant from continuing the actions that are allegedly causing harm until the trial is heard.  Injunctions of this type have been used by logging companies to have protesters cleared off logging roads and by First Nations to stop logging on traditional territory. 

At the trial of such a dispute both parties (or their lawyers) will call witnesses to prove their version of events and will try to explain to the court why their position should be accepted. 

The court then decides which party is right, and may make an order accordingly.  If the Plaintiff wins, the order is typically for the Defendant to pay money (damages) to the Plaintiff, but the Court can also (or instead) issue an order (known as an injunction) requiring the Defendant to stop causing the damage complained of, or to do something. 

The Government in Private Disputes

Any level of government – federal, provincial, local, First Nations – can end up in court the same as a private party.  In the common law it was not possible to sue the Crown (a right which included claims against the federal and provincial government).  However, this restriction has been virtually eliminated by Legislation. 

Watershed protection and the Common Law

There are a number of causes of actions that could be relevant to persons concerned with damage to water or watersheds, including nuisance, strict liability, and negligence.  For more information see the Guide pages on causes of action. 

However, the common law approach to damage may pose difficulties for your typical watershed protection advocate, for the following reasons:

·         Focus on damage to individuals – Damage to the environment, or to the public at large, cannot usually the basis of a private lawsuit.  Watershed advocates will only be able to bring a claim if they, or land they own, will be personally affected by the damage to the environment.

·         Focus on damage, not prevention – Litigation usually involves compensation for harm, and preventing the continuation of harm.  While the courts will sometimes grant an order to prevent damages where none have occurred, this will proof that the actions complained of will occur and will lead to the feared harm.

Related Guide Pages:

·         Courts.

·         Common Law Causes of Action.

For more information about Disputes between Individuals:

·         An Introduction to the Common Law, by Eric Engle

·         “Stare Decisis and Techniques of Legal Reasoning and Legal Argument”, by Paul Perrell, looks at how judges reason and when and how they will follow the decisions of other judges. 

·         “Injunctions and Judicial Review” from the First Nations and Water Use Planning In B.C. Website.