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Government Law - Crown - Actions by and against Crown - Negligence by Crown - Nuisance by Crown

Thursday, July 21, 2016 @ 8:00 PM  

Appeal by George and Bellows from the dismissal of their claims in public nuisance and negligence against the Province in relation to moose-vehicle collisions (MVCs). Their proposed class action related to the growing problem with MVCs based on the hyper-abundant population of moose on the island of Newfoundland. Over the years, the Province undertook several initiatives to counteract the number of MVCs, including clearing trees next to highways and undertaking public education campaigns. The appellants sought to represent those persons injured or killed in MVCs in the 10 years prior to 2011. They took the position that the Province should share with such individuals, and their automobile insurers, the costs associated with such accidents because the Province had not discharged the burden in public nuisance of showing it met the high standard of “all possible precaution” to avoid significant damage to individual users of the highways, nor had it met the duty of care in negligence to avoid injury to motorists. The trial judge dismissed the claims against the Province entirely.

HELD: Appeal dismissed. The judge was correct in finding the Province did not own, keep or control moose on the island, such that it was strictly liable for damages caused by the moose. He erred in stating that public nuisance could only be found if the preponderance of moose on highways resulted from an activity on the part of the Province. Liability in public nuisance could be grounded in nonfeasance and inactive conduct. However, the Province established that the introduction of moose to the island prior to 1900 for food and hunting was reasonable and that it had reacted reasonably to deal with the risk to motorists by implementing various strategies to reduce the number of MVCs. Its choices about the level of hunting that was appropriate and the unfeasibility of erecting costly moose fencing province-wide were policy decisions that were not actionable. The desirability of reducing moose populations so as to reduce the risk of MVCs did not trump the province’s duty to comply with wildlife legislation which encouraged moose propagation and to avoid overspending on fencing to the detriment of other areas, such as healthcare, education and other areas of government responsibility. The trial judge’s findings that moose were not abnormally dangerous and that permitting moose to roam was not an unnatural or unreasonable use of land, supported the conclusion that the Province, by its policies, was not unreasonably interfering with the public’s access to the highways of the Province. As there was no unreasonable interference with public access to highways, there was no liability for the tort of public nuisance. The trial judge did not err in law by finding that the Province did not owe a duty of care to the owners and operators of motor vehicles to mitigate the risk of MVCs because there was insufficient proximity between the parties and, in any event, the decisions complained of were core policy decisions immune from suit.