Tate & Lyle: Pure Economic Loss and the Modern Tort of Public Nuisance

Professor Lewis Klar criticizes the Canadian approach to the tort o f public nuisance for being illogical and incoherent. The authors agree with Klar\u27s assessment o f the current state of public nuisance law, but argue that insights drawn from the House o f Lords decision in Tate & Lyle Industries Ltd. v. Greater London Council offer a way forward. By conceptualizing the tort o f public nuisance as a cause o f action that protects subjects from suffering actual loss that is consequential on the violation of their passage and fishing rights over public property, Tate & Lyle offers a coherent and restrained formulation o f the tort o f public nuisance. This article examines the Tate & Lyle approach to public nuisance and applies it to two infamous Canadian public nuisance cases. It concludes that the coherent, logical approach to public nuisance articulated by the House o f Lords in T ate & Lyle should be readopted by Canadian courts

What’s Wrong with Restitution

The law of restitution has developed out of the law of quasi-contract and the law of constructive trust. Inadequate attention to the logic and coherence of doctrines in the law of restitution, however, renders this new law as opaque and confused as its predecessor. This is largely due to the remedial mentality of the common law. The remedy to the remedial mentality is to concentrate future efforts in stating doctrine on defining rights, not remedies. The precedent for this type of change in method is the transformation that occurred in contract and tort over the past 100 years, inspired, in part, by civilian theories of private law. The right that generates the remedy restitution is the cause of action in unjust enrichment. It arises where there has been a non-consensual receipt and retention of value, that is, a receipt and retention of value that occurs without juristic reason. Nonconsensual means by mistake, by theft or by finding. There are a number of problems in the method of the common law tradition which stand in the way of recognizing this simple formulation: (a) The inherent expansiveness of restitution and unjust enrichment if these terms are not rigorously defined; (b) The lack of serious competition for the expansive versions of the subject, on a number of fronts; (c) The lack of a clear direction in the efforts to reform the law of quasi-contract and constructive trust; (d) The deeply embedded nature of the quasi-contract thinking; (e) Poor analysis in some areas of the law of contract and (f) Tort; and (g) The lack of an explicit agency of reform in the tradition

Explaining the Principled Exception to Privity of Contract

The author contends that the Supreme Court of Canada was right in creating the principled exception to privity of contract in its decisions in London Drugs and Fraser River but not for the reasons given in those decisions. Neither the intentions of the parties nor commercial reality can explain the central features of the principled exception. Similarly, theories of subrogation and voluntary assumption of risk are also incapable of deciphering the limits imposed. Instead, the author maintains that the principled exception is merely an application of conventional estoppel to the facts found in London Drugs and Fraser Rivet (and other similar privity cases). As such, the author contends that, though the doctrine created by the Supreme Court is principled, it is not in any way a true exception to privity of contract