Common law is judge-made law developed through the court system. Originally, the common law did not include written texts, it was simply made up of court decisions. Today, however, more of the common law has been written down, whether in court decisions or confirmed in legislation.

Two main ideas run through the common law: (1) Judges do not make the law but merely declare it, and (2) All relevant past decisions are considered as evidence of the law and judges infer from these past decisions (precedents) what is the true law in a given instance.[1]

 This reliance on past cases is an important legal concept called stare decisis which means “let the decision stand”. This helps judges decide how to interpret a set of facts based on what has been decided before them.

As with other types of law, environmental lawyers have relied heavily on common law ideas in order to protect certain aspects of the environment, especially before environmental statutes existed. A number of examples come from an area of law known as torts. A tort, as defined by Black’s Law Dictionary, is, “a civil wrong for which a remedy may be obtained, usually in the form of damages; a breach of a duty that the law imposes on everyone in the same relation to one another as those involved in a given transaction.”[2]

In simpler terms, torts govern the relationship between individuals even when there is no contractual relationship. Here are some examples of torts to better understand how they can play a role in environmental law and the protection of the environment:

    • Trespass: Trespass is the intentional direct invasion of real property (land). You do not need to show damage to the land to find trespass, but you do need to show that the land is privately owned. For example, if you own a piece of land and someone comes onto your land to dump garbage, you can go to court to complain. The court may order the person to stop bringing garbage onto your land and may require them to clean up the damage they have done or pay you for this clean up.
    • Nuisance: Nuisance is the “unreasonable interference with the use or enjoyment of land.”[3]  An individual who is bothered by the activities of another can bring an action in court seeking an order that the activities must stop. For example, if you are bothered by a smelly waste dump nearby, you could bring a nuisance claim against the dump operators. The court may find that you are suffering an injury, and require the dump to stop the smell. This tort can also be relied upon even when direct trespass onto the land has not occurred.
    • Negligence: Negligence is not doing something, which the reasonable person would have been expected to do and causing harm to somebody else, as a result. In an environmental context, this could mean that a factory is not storing its harmful chemicals properly, which leads to the chemicals leaking onto farmland next door and causing harm. The factory could be considered negligent for not having upheld the proper storage requirements, even if they were legally allowed to have the chemicals on their premises.
    • Toxic Torts: Toxic torts are more common in the United States. A toxic tort would allow an individual or group of individuals to bring a claim when they are injured by pollution that is caused by a corporation or other entity. For example, a community could bring a toxic tort case to court if they got sick from pollution caused by a nearby factory. These types of torts are less common in Canada and when they are used, they are usually included in claims for nuisance.

One Canadian example of a toxic tort is the decision of Smith v Inco Ltd. out of Ontario.[4] In this case, a group of landowners sued a nickel refinery after their property values decreased as a result of nickel particles being deposited onto their property. This decision was important as it could result in more Canadian toxic tort litigation in the future.

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[1] Neil Craik et al, Public Law, 2d ed (Toronto: Edmond Montgomery, 2011) at 52.

[2] Black’s Law Dictionary, 7d ed, sub verbo “tort”.

[3] Bruce Pardy, Environmental Law: A Guide to Concepts (Toronto: Butterworths Canada Ltd. 1996) at 193.

[4] Smith v Inco, 2010 ONSC 3790.




Fundamentals of Environmental Law

Lesson Plan: Fundamentals of Environmental Law
Lesson Plan: Canadian Charter of Rights and Freedoms
Lesson Plan: Tragedy of the Commons
Lesson Plan: Climate Litigation

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