PLEASE ENSURE THAT YOU HAVE A COMPLETE EXAMINATION THE UNIVERSITY OF BRITISH COLUMBIA PETER A. ALLARD SCHOOL OF LAW FINAL EXAMINATION - APRIL 2016

Transcription

1 r Exam Code: Return this exam question paper to your invigilator at the end of the exam before you leave the classroom. THIS EXAMINATION CONSISTS OF 7 PAGES PLEASE ENSURE THAT YOU HAVE A COMPLETE EXAMINATION THE UNIVERSITY OF BRITISH COLUMBIA PETER A. ALLARD SCHOOL OF LAW FINAL EXAMINATION - APRIL 2016 LAW TORTS Professor Gordon Christie TOTAL MARKS: 100 TIME ALLOWED: 2 HOURS AND 45 MINUTES AND 15 MINUTES READING TIME ******************* NOTE: 1. This is an open book examination. Students are allowed to bring in all materials, except for library books. Communication devices (mobile phones, etc.) are not permitted, and should be turned off and out of sight. 2. This exam has two sections. You must answer fully the fact-pattern question, but are expected to answer only 2 out of the 4 questions provided in the short-essay section. 3. You have 15 minutes at the beginning of the exam to read over the questions and sketch out responses do not write in your exam booklets or type into Examsoft during this time. THIS EXAMINATION CONSISTS OF TWO SECTIONS 1

2 Section One: 70 points total 1. Two decades ago Finfish Harvesting Inc. ( FH ) began an aquaculture business in an inlet a few hours by boat north of Vancouver. Their fish farm involves the use of mesh pens, suspended in the ocean, within which they place Atlantic Salmon once they have become smolt (FH has an on-shore facility within which it places salmon eggs and within which it raises the young fish until the point when they smolt, which is when they become able to survive in ocean (salt) water at that point they transfer them to the holding pens in the inlet). The adult fish then spend anywhere from 18 to 24 months maturing in these pens before being harvested back on land, in a packaging facility FH runs. When FH built its ocean-water pens it could not have afforded to do so if it had been required to add a second enclosure around the first (which would have protected the salmon from such hazards as marine mammals who might otherwise find the salmon very tempting, swimming just a thin net away). Most other aquaculture operators along the west coast made this significant extra investment, as they saw the benefits in adding this extra measure of safety. Over the last few years FH has been involved in an ongoing media battle with a coalition of environmental activists and local First Nations. This informal coalition (known as Save the Wild Salmon SWS ) is concerned about both (a) the possibility Atlantic Salmon might escape their pens and interact with wild (Pacific) Salmon (and perhaps establish themselves on the West Coast), and (b) the lilcelihood that farmed salmon will introduce diseases and infestations into the wild salmon population. It has been shown that things like salmon lice and certain bacterial infections can easily get out of control in the densely-packed environments of the pens, where thousands of salmon end up spending months tightly confmed. Passing wild salmon, SWS argues, can then pick up lice and/or bacterial infections when they pass these floating enclosures. This past November Robert Sawyer was working with the FH crew operating the boat that was to be used to transfer what had now become an adult population of farm-salmon to the facility on shore (that would kill and package the fish). He was the pilot of the vessel, and in maneuvering the boat in close to the set of net-enclosures he misjudged the distance and went past the point where the boat would have normally been tied to the floating structure. He then chose to back up to the right spot, but in doing so the propeller-blades made contact with the side of one of the mesh nets, ripping a large hole in it. Before the work-crew could reach the hole several thousand Atlantic salmon had escaped into the waters of the inlet. This event occurred at exactly 1:30pm, November 15, At 1:15pm November 16 th FH sent an giving notice of the escape to an address at Fisheries and Oceans Canada ( FOC ) where aquaculture operators are expected to give notice of fish-escapes. At 1:15pm on November 22h1( FH submitted a written report to FOC detailing the events around the escape and their efforts (largely unsuccessful) to recapture the escaped Atlantic salmon. A few days past that (November 25 th) FH also informed FOC that the batch of salmon they were then harvesting (the ones they had managed to retrieve from the damaged mesh pens on the 15 th of November) were showing signs of Heart and 2

3 Skeletal Muscle Inflammation ( HMSI ), a disease that has plagued northern European fish stocks over the last 20 years or so. HMSI has only recently been detected in west coast Canadian aquaculture operations, and this is the first time it had been detected in FH s aquaculture stock (and actually the first time it had been detected anywhere in this area of the west coast). This past spring commercial salmon fishing harvests of wild salmon took place in waters just 5-10 kilometers from PH s aquaculture facility. The owners/operators of the fishing operations noticed, to their dismay, that approximately 20% of the wild salmon they harvested were showing signs of RMSI, the first time this disease had ever been detected in wild salmon stock off the coast of British Columbia. For the last 25 years Art Stanley has owned and operated a commercial salmon fishing boat, and he was one of those licenced to fish the wild salmon in this area during this past season. This was to be Art s last year as a commercial fisher-person he had put his licence up for sale in January (at a competitive price of $65,000, without the boat he planned to sell his boat separately). He found, however, that with this infection of the stock not only was his catch of healthy fish smaller that anticipated but it was difficult to find good prices for the healthy fish. The mass-market buyers in Vancouver knew of the infestation and were concerned about public perceptions they suspected that the general consumer of wild salmon would be skeptical about its safety (even though the diseased fish were not being sold). Art found that his entire catch was worth about $40,000 less that anticipated. It was not that he had caught less kilograms than expected he had hauled in as many kilograms as his licence would permit, but some fish could not be sold because they were unhealthy, and those that he could sell fetched a lower price than usual. Furthermore, Art found that the formerly strong market for commercial fishing licences in his area had weakened significantly, and he was only able to get an offer when he put his aslcing price down a few weeks ago to $40,000. This he also attributed to the salmon-infestation, as he suspected people were now leery of getting into the business. The local community of North Harbour relies heavily on the incomes of the local commercial salmon fishers. As all the fishing operations had suffered this past spring so did all the local businesses fewer people were buying things like appliances, vehicles and homes, and fewer people were going out for restaurant meals. Even the local floatplane service to Vancouver noticed a sharp drop in business and had to cut down from its usual 3 flights weekly to just 2 per week. The only people not significantly suffering financially through all this seemed to be PH and those who work for FH s operations. Through all this period the war of words continued between SWS and FH. SWS s website often contained links to stories from around the world that seemed to show links between aquaculture operations and subsequent problems in the local wild fish populations. In late November two news-stories had appeared in the North Harbour Observer ( NHO ), a local paper serving the area in and around North Harbour, as Solomon Ayeh, one of their reporters, had learned (a) about the escape of Atlantic salmon from PH s ocean-facility, and (b) about the infestation of local wild salmon with HMSI. 3

4 The two stories were printed separately, and no effort was made on the part of Solomon to link them together. SWS, however, updated their website after the two stories had appeared, though at that time all they did was on their front page provide links to both the stories, side-by-side. But then in late spring, with the local economy reeling from the drop in income by the commercial wild salmon fishing operations, the website had been updated again, this time with a large-font heading proclaiming: Now North Harbour Feels What Others Around the World Have Felt When Aquaculture Moves In! Below that were links to several studies suggesting correlations between the presence of aquaculture in certain areas (along the coasts of Norway and Chile) and subsequent spikes in the incidence of both salmon lice and diseases in the local wild salmon population. Below these links was a separate sub-heading: Incidents at FH Last Fall, and below that links to Solomon s earlier two news-stories. Sally Engels is the Chief Financial Officer for FR. A few years ago she took on the role within FR of responding to social media criticism, and she runs a separate page within FH s website dedicated to answering challenges to FH s operations. Over the last few years much of her energy has been directed toward SWS. Two days after the last update appeared on the SWS website she updated her FR-page, taking up pretty much the entire page (in font that was even larger than that used by SWS) with just one sentence: Those Lying %$@ Protestors!! This was clickable, so that if one clicked on these words one was taken to a page with a list of other clickable-links. The first of these links took the viewer to yet another article printed in the NHO last fall, just a few days after the two news-stories by Solomon. This third article was a translation of an article from a magazine in Norway, and it detailed studies that had apparently shown that while there was some correlation between the presence of fish farms and an apparent increase in the number of local wild salmon infected with both lice and such diseases as HMSI, no definitive (scientifically-grounded) causal link had ever been established. That is, no one has ever been able to demonstrate that the presence of a fish farm in an area is the cause of subsequent lice or disease infestations in local wild fish populations. The original Norwegian article actually comes from the trade magazine produced by an industry group made up of all the aquaculture operators in Norway. The author of this article is a consultant paid for his work by the industry group. The aquaculture business is regulated along the BC coast by FOC. The over-all regulatory regime falls under the Fisheries Act, and the main regulations for British Columbia are found in the Pacific Aquaculture Regulations (one section is reproduced on the next page). Under these regulations the Minister has established that should an escape of farmed-fish occur the aquaculture operator is required to self-report, reporting within 24 hours electronically (to an box specifically set up for that purpose) and within 7 days in written form (to the FOC office in Vancouver). The aquaculture operator is also required, as part of its having a valid licence, to design, develop and maintain a re-capture program, so that reasonable measures will be taken to capture farmed-fish that may escape. All this takes place within a federal regulatory regime that specifies the primary objectives of protecting both fish stocks and fishing operations 4

5 along Canada s three coast-lines the federal ministry has taken upon itself responsibility to ensure sustainable fisheries will continue along,canada s coasts into the indefinite future. You are a junior lawyer at a law firm in North Vancouver. Your firm often works for various parties living along the coast north of Vancouver, including the area in which FH and North Harbour are located. Several parties from this area have approached your firm, each providing some of the details included in the account, above. A senior lawyer in your firm has asked that you take the account provided as if it makes up a set of facts and write a memo exploring all the ways all the various parties involved in this unfolding story might be able to use actions within the law of torts to seek compensation for harms they may have suffered. You have been asked to limit your analysis to possible actions under negligence, strict liability and defamation. You have also been asked to indicate where more information is essential for a complete legal analysis to be carried out. Please write the memo. Pacific Aquaculture Regulations [SORJ2O1O-270J 4. For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify, in addition to the conditions respecting the matters set out in subsection 22 (1) of the Fishery (General) Regulations, conditions in an aquaculture licence respecting any of the following matters: (a) the species and quantities of fish that are permit-ted to be cultivated and their place of origin; (b) the age, sex, stage of development or size of fish that are permitted to be cultivated; (c) the waters in which aquaculture and prescribed activities are permitted to be engaged in;... (e) the harvesting of fish in the aquaculture facility; (f) the measures that must be taken to control and monitor the presence of pathogens and pests in the aquaculture facility; (g) the measures that must be taken to monitor the presence of pathogens and pests in wild fish in the waters that may be affected by the operations of the aquaculture facility; [and] (h) the measures that must be taken to minimize the escape of fish from the aquaculture facility and to catch the fish that escape 5

6 Section Two: 30 points total (15 point for each answer) Answer 2 (two) of the following 4 (four) questions. If you answer more than two and do not indicate which you wish to be graded I will grade the first two that you answered so, be careful to answer only two, or clearly indicate which two answers you wish to have graded! 1. The Ontario Court of Appeal focused its analysis in Mustapha v. Culligan of Canada Ltd, 2008 SCC 27, on the question of when it might be appropriate for one party to be said to have an obligation to another to not cause pure psychological harm. But when this case was decided by the Supreme Court of Canada the analysis focused on whether the harm suffered by Mr. Mustapha was too remote from the negligent acts Culligan of Canada may have committed. Why do you think the SCC chose this way to deal with this matter? Be sure to explain and defend your answer. 2. In Fullowka v. Pinkerton s of Canada Ltd, (2010) 1 S.C.R. 132, the SCC set out how a lower court should decide whether sufficient proximity is established between a party established under and acting within a statutory regime and a private party. What are the key elements that go into this sort of analysis? Do they seem to you to be the very sorts of things that should be established in order for a person to have a prima facie duty of care owed to them by a government body? Be sure to explain and defend your answer. 3. Imagine that three companies all produce a product P that requires the use of chemical x in its production. Imagine that this chemical is so toxic that exposure to just one molecule of it is sufficient to lead to serious neurological damage, a kind of neurological damage that only comes from exposure to chemical X (which is only present in the environment during the manufacturing of product P once product P is manufactured chemical X is embedded in the product and is rendered harmless). Imagine that Sarah has worked in all three of the factories run by these three companies, each time for a period of exactly one year. In all three factories there were lax safety measures, and Sarah has evidence that indicates that in all three periods during which she was working at the three factories there were an equal number of opportunities for her to be exposed to chemical X. It is physically impossible to determine at which time she was exposed to chemical X it could have happened in any of the three periods she was working for the three companies (or during two of the periods, or even possibly during all three periods but recall that exposure to only one molecule is required in order to come down with the neurological problem). Do you think the robust and pragmatic approach advocated in Snell v. Farrell, (1990) 2 S.C.R. 311, would lead to a just and fair determination of causation in this situation? Do you think the alternate approach laid out in Clements v. Clements, (2012) 2 S.C.R. 181, would lead to a just and fair determination? Do you think it might be necessary to come up with a third alternative (if so, explain what this would be)? Whatever your response, be sure to explain and defend your answer. 6

7 4. In Heisler v. Moke, (1972) 2 O.R. 446, the Ontario High Court of Justice found that at a stage in the lives of young people should they seem to act negligently the standard of care to be applied is that of a child of like age, intelligence and experience. Normally no allowance is made under standard of care analysis for differences in intelligence (the mentally slow are held to the objective standard of the reasonable person, irrespective of the fact they may struggle to see and understand what might be reasonable in any given set of circumstances). Does it seem right and fair that the young are provided this variance within the analysis of the standard that applies to them? Be sure to explain and defend your answer. 7