Environmental Law Moot – Nuisance and the Defence of Statutory Authority

I was delighted to have been invited to  judge the semi-final round of the 2015 Environmental Law Moot run by my colleagues at Willms & Shier on March 7. My thanks to them for inviting me back and congratulations on another successful competition.

Part of the fun of judging this competition is the venue. The moot is held at Ontario’s Court of Appeal in Osgoode Hall, so I and my judging colleagues, also drawn from Ontario’s environmental law bar, had the chance to play “judge for a day” in prestigious and authentic surroundings.

The moot problem was an appeal to the  “Supreme Environmental Moot Court of
Canada”, a fictional court of last resort, of the British Columbia Court of Appeal’s decision in Susan Heyes Inc. (Hazel & Co.) v South Coast B.C. Transportation Authority, 2011 BCCA 77, a case that had in fact been refused leave to appeal to the Supreme Court of Canada.

The case involves a claim for nuisance for interruption to business because of road closures associated with the construction of Vancouver’s Canada Line rail link.

The plaintiff argued that the construction method constituted unreasonable interference with the use and occupation of her premises. The defendants argued that there was no nuisance because the road closures had been lawfully effected by the City and that, in any event, they had a defence of statutory authority to carry out the works.

The British Columbia Court of Appeal had upheld the trial judge’s finding of nuisance but
ruled that the defendants had established the defence of statutory authority.

The quality of the contestants, all teams from Canadian Law Schools, was again extremely high. They delivered their arguments eloquently and showed  striking poise in dealing with questions from the bench.

Another pleasure of this moot is the final, where the bench consist of three “real life” judges, in this case: Justice Andromache Karakatsanis of  the Supreme Court of Canada, Justice Katherine van Rensburg of the Court of Appeal for Ontario and Justice David Stratas of the Federal Court of Appeal.

Announcement of the winners of the final, along with distinguished oralists and best written factum, was left to the end of the evening’s awards dinner. Congratulations to all of the winners and, indeed, to all participants.

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