3.
PART I STATEMENT OF FACTS
1. This factum is in response to the appellant's appeal of the decision of the honourable Robins J.
whereby his lordship:
a. Concluded that an actionable nuisance in accordance with Tort law was
committed against the respondent. 1
b. Awarded compensation to the respondent for damage to date.
2. The Respondents Rokeby and Schenck et al., accept the findings and judgement made by the
Judge. 2
3. The Respondents accept the facts provided by the appellant with the exclusion of:
a. Paragraph 2: Whereas the respondent’s orchards adjoin highways that require
“highest levels of winter maintenance, which includes heavy use of road salt as a
deicing chemical.” This statement is intrinsically rejected by our counsel on the
basis that “highest levels of maintenance” are not necessarily attributed to the
“heavy use of road salt”. 3
PART II ISSUES ON APPEAL
4. The appellant's factum set out the following grounds of appeal:
a. “The reasoning for which the Statutory Authority argument, under the Public
Transportation and Highway Improvement Act, RSO 1990, s.33, was dismissed in
the original case, is solely upon the law, without consideration of economic
efficiency. We would like to reiterate these arguments with specific concentration
upon economics.”
b. “Was the right infringement within reasonable limits?
We will discuss this point with regards to the Canadian Charter of Rights and
Freedoms (Part I of the Constitution act of 1982), section 1. This limitation
section we believe overrides the liability under common law.”
c. “Whether or not the liability of the damage has been placed upon the wrong party.
Is this damage an example of none other than a negative consumption
externality?”
1
Schenck et al. v. The Queen in right of Ontario; Rokeby v. The Queen in right of Ontario, (1981), 34 O.R. (2d) 595
2
Schenck et al. v. The Queen in right of Ontario; Rokeby v. The Queen in right of Ontario, (1981), 34 O.R. (2d) 595
3
Schenck et al. v. The Queen in right of Ontario; Rokeby v. The Queen in right of Ontario, (1981), 34 O.R. (2d) 595
2
4.
Part III: ARGUMENT
5. The respondents disagree wholly with the grounds of appeal set out by the appellants. The
argument of the respondents will tackle each issue on appeal with a response adjourned to the
effectiveness of the previous ruling, one acquainted with a degree of efficiency.
ISSUE 1: “The reasoning for which the Statutory Authority argument, under the Public
Transportation and Highway Improvement Act, RSO 1990, s.33, was dismissed in the original
case, is solely upon the law, without consideration of economic efficiency. We would like to
reiterate these arguments with specific concentration upon economics.”
6. The most prominent argument of our counsel in counter of the appellant's first issue that the
status quo is per se inefficient stands void. The court room is a premise that mimics the market,
and leads to an efficient outcome . This counsel stands confident that Robin J’s verdict has 4
achieved pareto optimality from a point of potential pareto efficiency. As the appellants have
used salt to deice highways in direct proximity to orchard lands, the social utility achieved has
led to the evolvement of costs in form of a nuisance to the respondents. The Kaldor hicks theory
argues that it is detrimental to maximize one’s own utility or wealth, without harming another’s,
unless compensation is granted . As compensation is granted, potential pareto efficiency is 5
reached, disproving this appeal as a whole. Hence, rendering the initial judgement, that entitles
the respondent to compensation, a point of pareto optimality.
7. This counsel believes that it is essential to acknowledge that the overturning of inefficiency
into pareto optimality generates a greater quantity of total wealth. This counsel believes that the
4
Rubin, Paul H. "The Concise Encyclopedia of Economics." Library of Economics and Liberty. 2008.
http://www.econlib.org/library/Enc/LawandEconomics.html (accessed March 08, 2015).
5
N. Kaldor. "Welfare propositions of economics and interpersonal comparisons of utility." Economic Journal 49
(1939): 549 52.
3
5.
infringement of the respondent’s right to remain nuisancefree is not prescribed by the law. As
previously iterated, the appellant’s obligation is to ensure that “The King’s Highway shall be
maintained and kept in repair by the Ministry”. With that being stated, this aggregate feature of 6
efficiency advocates ethicality and equity.
8. Finally, this counsel believes that efficiency is not reached due to the presence of market
failure within this issue. Evidence shows the negative impact salt has on the environment,
wildlife and even human condition . This acts as a negative externality on consumption, shifting 7
down the Marginal Social Benefit. Unfortunately, this social cost is not easily accountable since
the effect of salt on the environment cannot be easily measured in numerical data, however, its
negative effect on the environment is undeniable and trumps pareto efficiency. Thus leaving the
appellant with the choice between salting and compensating the respondent, or finding an
alternative, in order to achieve efficiency. Hence in line with the ruling of Robins J.
ISSUE 2: “Was the right infringement within reasonable limits?”
We will discuss this point with regards to the Canadian Charter of Rights and Freedoms (Part I
of the Constitution act of 1982), section 1. This limitation section we believe overrides the
liability under common law.”
9. Entertaining the assumption that section 1 can be applied to this case and that the previous
judgement is repealed, this council would like to highlight that efficiency will be trumped in
favor of an inefficient outcome. The inefficient outcome will be characterized by an increase of
social utility delivered by the crown for safe highways, while a cost will be imposed on orchard
growers. This revokes pareto efficiency from the previous judgement.
6
Public Transportation and Highway Improvement Act, RSO 1980, c. 421, s.33
7
Kelly, V.R., Findlay, “Road Salt: Moving Toward the Solution”The Cary Institute of Ecosystem Studies. S.E.G.,
Schlesinger, W.H., Chatrchyan, A.M., Menking, K. 2010.
4
6.
10. In order for the charter infringement plead by the appellant to be justified, it is essential that
the case in question passes the threestep test. The infringement in question must be prescribed
by the law, pressing and substantial and rationally connected with that to its purpose, causing of
a minimal impairment to the charter right in question and proportionate in its effects. The
ministry is responsible to "maintain and keep in repair...part of the king’s highway is situate...”. 8
This obligation does not necessitate the use of Salt, which is harmful to the respondent’s
orchards. Thus, failing the first test, and revoking the ability to use section 1 of the Charter.
11. Conclusively, this counsel strongly believes that the issue presented by the appellant is
implausible. With all due respect to the Judge of this case of appeal, it is of both our knowledge
that Section 1 of the Charter is only employed if legislation is repealed by the Supreme court for
its unconstitutional, intrinsic rightinfringing nature. However, within the confines of this court
case, it is factual that the maintaining of highways is bylaw a statutory obligation of the crown . 9
Seeing as the legitimate nature of this statutory act was never brought into question, it is our
belief that the employment of section 1 of the Charter is inapplicable. Section 33(1) of the
Highway Improvement Act compels the crown to “maintain and keep in repair by the ministry
any part of the king’s highway is situate...” . It does not however specify that salt is a necessity 10
to materialize this ‘maintenance’. Hence, it is not the statutory provision that constitutes harm to
the respondent’s orchards, rather the means employed by the ministry, i.e. the salt used to
maintain their highways.
ISSUE 3: “Whether or not the liability of the damage has been placed upon the wrong party. Is
this damage an example of none other than a negative consumption externality?”
8
Ontario Justice Education Network. "In Brief: Section 1 of the Charter and the Oakes Test." Ontrio Justice Education
Network. http://ojen.ca/files/Oakes%20Test%20English_Final.pd.
9
Public Transportation and Highway Improvement Act, RSO 1980, c. 421, s.33
10
Public Transportation and Highway Improvement Act, RSO 1980, c. 421, s.33
5
7.
12. This counsel believes to adequately address this issue the responsibility of the government
regarding highways must be determined. As stated under the Public Transportation and Highway
Improvement Act, R.S.O. 1980, “All property acquired under this part is vested in the Crown and
is under the jurisdiction and control of the Ministry” . Therefore, according to statutory law the 11
appellants are in charge strictly of the roads and their maintenance. Disregarding the
responsibility of government with these roads would be an infringement on statutory law, and
therefore, a contradiction to the initial argument regarding Public Transportation and Highway
Improvement Act s.33.
13. To the question of onus of liability, it is in this counsel's belief that liability be strictly placed
upon the appellants. As noted by Robins J. the tort of private nuisance is the essence of the
judgement. That is the interference with the interest of the land is “manifestly substantial” and
the harm is greater than one ought to bear under the circumstance, “at least without
compensation” . The application of tort law with regards to nuisance and in accordance with the 12
Proceedings against the Crown act places liability of damages on the appellants . 13
14. In conclusion, the arguments presented by the respondent's counsel are in rebuttal of the
issues illustrated by the appellants. Reinstated is that this counsel wholly rejects the arguments
set out by the appellant counsel, as the respondents are in belief that the appellant’s arguments
are intrinsically redundant, and do not address the main issues addressed in court. The
inevitability of usage of salt is not contended by the appellants, and in the belief of this counsel,
the question of inevitability was detrimental to the judge’s ruling, as highlighted: “Although the
11
Public Transportation and Highway Improvement Act, RSO 1980, c. 421, s.2(1)
12
Schenck et al. v. The Queen in right of Ontario; Rokeby v. The Queen in right of Ontario, (1981), 34 O.R. (2d) 595
13
Proceedings Against the Crown, R.S.O, 1990, c. P.27, s.5(1)
6
8.
defendant would not be liable in nuisance if the nuisance was the inevitable result of doing what
the statute has authorized, the defendant had not satisfied the onus of proving that this damage
was inevitable”.
Part IV Additional Issues
15. This counsel believes that the rulings previously made with regards to negligence should be
revised. This case was contended in 1982, and it is in our belief that contemporary technological
advancement has introduced a variety of alternatives that can be used to ensure “..safe and
uninterrupted highway travel in Ontario” . “The claim in negligence failed because the plaintiffs 14
did not prove that the defendant used excessive quantities of salt; nor that the use of salt in itself,
rather than alternatives, was negligent; nor that possible abatement measures would have solved
the problem” . The convenience attributed with recent methods of deicing such as ‘Ecotraction’ 15
is characterized not by the lower costs of purchase, rather with drastically lower negative 16
consumption externalities than the ones caused by salt . This being in the knowledge of the 17
government, the appeal of this case to continue salting is negligent in itself.
Part VORDER REQUESTED
16. It is respectfully requested that this appeal be dismissed. ALL OF WHICH is respectfully
submitted by: Mohamed Jassim, Jasem Rashed, Juan Hurtado
14
Schenck et al. v. The Queen in right of Ontario; Rokeby v. The Queen in right of Ontario, (1981), 34 O.R. (2d) 595
15
Schenck et al. v. The Queen in right of Ontario; Rokeby v. The Queen in right of Ontario, (1981), 34 O.R. (2d) 595
16
W., Brett Wilson. "Green Business Gains Traction With Road Salt Alternative." June 4, 2012.
17
Kelly, V.R., Findlay, “Road Salt: Moving Toward the Solution”The Cary Institute of Ecosystem Studies. S.E.G.,
Schlesinger, W.H., Chatrchyan, A.M., Menking, K. 2010.
7
