Common Law Causes of Action

The common law is another avenue to consider when working with the law to protect watersheds.  The “common law” refers to the body of judge-made law and concepts of justice which started in England and which have evolved incrementally in the courts over time as the courts have decided the cases brought before them.  These legal principles are said to have evolved from the “customary” law of the common people. 

 

The common law may be contrasted with statutory law, which consists of the statutes passed by the Canadian Parliament and the provincial legislatures, and their associated regulations.  This section describes what common law causes of action are, and how they might be relevant to watershed protection.

What is a “cause of action”?

The “common law” refers to the body of judge-made law and concepts of justice which started in England and which have evolved incrementally in the courts over time as the courts have decided the cases brought before them.  A “cause of action” is basically circumstances that the courts have recognized merits a legal remedy.  For example, the courts recognize that dumping waste on someone’s property will cause harm to the property owner that should be compensated – such action may fall within the recognized “causes of action” of “trespass” and “nuisance”.

Most common law causes of action concern physical harm done to an individual or his or her property.  They do not concentrate on damage to the environment, except to the extent that the damage affects human health or the ability of a person to enjoy his or her property.  Nonetheless, in the right case these private claims can be a good tool to prevent environmental damage from continuing or to get environmental damage cleaned up.  For more information see the Guide page about private causes of action. 

One common law “cause of action” that does take on a more “public” aspect is “public nuisance” – a claim that someone’s action is causing harm to the public at large.  In addition, recent changes to the law allow private causes of action to take on a public flavour through class action litigation.  For more information about these tools see the Guide’s public causes of action page. 

Common law causes of action involve a party bringing an action or lawsuit in court, seeking a remedy for a wrong – usually a wrong concerned with private rights between citizens.  In British Columbia, actions based upon the common law are generally brought either in the Provincial Court (for Small Claims, i.e. claims under $10,000) or in the Supreme Court, for actions which seek to recover damages greater than $10,000.  The Federal Court has jurisdiction in common law causes of action, where one of the parties is the federal government or Crown, or where the lands in question are federal lands.

When bringing an action based upon common law principles, it is important to first become familiar with the body of case law developed on that topic over time.  Judges will be guided by similar-fact cases that have been decided previously, and will strive to make their decisions consistent with those cases.  In fact, unless there is a basis for distinguishing the facts of the prior cases, lower courts are bound to follow the precedent of decisions made by higher courts.

It is also important when bringing a common law action to find out, early on, what limitation period applies to your cause of action.  The Limitation Act sets out rules on time periods following the cause of action, after which a defendant is entitled to be free of the risk of an action being brought against him or her.  In some other cases other limitation periods apply.  It is a good idea to consult a lawyer if you are considering bringing a private claim of this type. 

Some of the drawbacks of private law actions are that they can be costly and time-consuming to litigate.  However, most actions are settled out of court and never make it to trial.

Related Guide Pages:

·         The Courts – Disputes Between Individuals.

·         Advocacy -- Legal and Planning Tools.

For more information on Common Law remedies or court decisions:

·         Provincial Court of British Columbia

·         B.C. Supreme Court

·         British Columbia Courthouse Library Society