Monthly Archives: September 2014

Reintroduction of Wildlife: No Basis for Liability for Motor Vehicle Collisions

Imagine driving along a highway on the island of Newfoundland on a fine summer’s evening. Suddenly, seemingly out of nowhere, a moose bounds onto the road. Before you have time to avert the inevitable collision, 600 to 1,000 pounds of animal hits your car. Because the moose stands on long, spindly legs, the car proceeds through the legs and under the moose, resulting in its massive body coming over the hood of your car and crashing down on your windshield and roof. If the moose has not been killed instantly, it thrashes about in your car, making a horrific situation for you even worse. The result can be catastrophic – serious injury, paralysis and even death.

The Supreme Court of Newfoundland and Labrador Trial Division (General) (the “Court”), last week, rendered its decision in George v Newfoundland and Labrador, 2014 NLTD(G) 106. After opening his decision with the paragraph, above, Mr. Justice Robert P. Stack proceeded to the matter at hand.

This class action lawsuit concerned the introduction of moose to the island of Newfoundland and the Province’s subsequent management of the moose population as it relates to highway traffic safety.

The introductions of moose to the island of Newfoundland occurred first in 1874-75 in Gander Bay and later in 1904 at Grand Lake Station. It is not clear, however, whether the current moose population derives from the first attempted introduction or only the second. Moose were introduced for food for the residents and sport for hunters.

The Province has authority over the management of wildlife within Newfoundland and Labrador, as well as the development and maintenance of the highway system throughout the Province. The plaintiffs alleged that the Defendant Province was liable in strict liability, public nuisance, and negligence for personal injuries and loss of human life that were caused by moose-vehicle collisions outside national park boundaries in insular Newfoundland during the class period.

The plaintiffs’ action failed. The Court found:

(1) The Province is not liable to the plaintiffs in the tort of strict liability.

(2) The Province is not liable to the plaintiffs in the tort of public nuisance.

(3) The Provice does not owe a prima facie duty of care to the owners and occupiers of motor vehicles to mitigate the risk of moose-vehicle collisions, Even if the Province did, such a duty of care would be negated because it has adopted policies of moose population management and moose-vehicle collision risk mitigation that are neither irrational nor were made in bad faith.

In addition to other arguments around the principle of strict liability, as an alternative, the plaintiffs argued that the Province was strictly liable for harm caused by moose on the highways by virtue of the emerging principle of strict liability for abnormally dangerous activity. In support of this, the plaintiffs cited academics who postulate that a new basis of strict liability should be adopted, whereby liability flows from the defendant engaging in abnormally dangerous activities (Linden, et al).

While the Court found that it cannot be said that there will never be presented to the Court facts that would result in further evolution of the common law of strict liability, at this time, at least, such a tort is not recognized in Canadian law, and was specifically rejected in Smith v Inco Ltd., 2011 ONCA 628.

As you are no doubt aware, Parks Canada is in the process of reintroducing plains bison to Banff National Park. This decision should be welcome news for Parks Canada.

James Early

A Battle Line is Drawn | Maligne Lake Development Faces Opposition

The Canadian Parks and Wilderness Society (“CPAWS”) and the Jasper Environmental Association (“JEA”) have commenced judicial review proceedings in Federal Court, challenging a decision to approve the development of tent cabins at Maligne Lake in Jasper National Park.

Jasper National Park’s long-term ecological vision for the area is set forth in a 2010 Management Plan which, in part, states:

“[n]o new land will be released for overnight commercial accommodation outside the [Jasper town site]”.

Despite this prohibition on further development, the proposal for development was nevertheless approved.

CPAWS and JEA have applied for judicial review on a number of grounds including:

1. the 2010 Management Plan prohibits the type of development that has been approved;

2. the proposed development does not constitute a “change in circumstances” that would warrant an amendment to the 2010 Management Plan; and

3. the decision was made without regard for the continuing decline of the Maligne caribou herd and the status of both Southern Mountain Caribou and grizzly bear populations.

The Jasper National Park decision continues the Federal Government trend of overdeveloping national parks, often contrary to on-the-ground policy. In his article, “Developers once again eager to pave paradise”, CPAWS Board Member, and Troy Media Editor-in-Chief, Doug Firby, explains some of the background of the history of development of our national parks.

The battle line has been drawn at Maligne Lake.

James Early