Strand Theater Co. v. Cahill & Co., (1920) 61 SCR 100

Supreme Court of Canada

Strand Theater Co. v. Cahill & Co., (1920) 61 S.C.R. 100

Date: 1920-06-21

The Strand Theatre Company (Defendant) Appellant;

and

Cahill and Company (Plaintiff) Respondent

1920: May 10; 1920: June; 21.

Present: Idington, Duff, Anglin, Brodeur and Mignault JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Nuisance—Theatrical performance—Crowd on street—Obstruction of neighboring premises—Injunction.

A theatre Co. may be restrained by injunction from so arranging its performances that persons waiting for admission assemble in such numbers that they obstruct the access to neighbouring business premises and seriously inconvenience the proprietors.

APPEAL from a decision of the Supreme Court of Nova Scotia[1] reversing the judgment at the trial in favour of the appellant.

The question to be decided on the appeal is indicated in the above head-note.

F. H. Bell K.C. for the appellant.

A. W. Jones for the respondent.

Idington J.—The respondent, complaining of a nuisance created by the appellants inducing such an assemblage of persons on the sidewalk in front of its theatre and extending to the entrance of the respondent's adjoining grocery, applied for an injunction, and that application was by consent conducted without formal pleadings.

[Page 101]

After a trial lasting two days Mr. Justice Drysdale dismissed the application and, on appeal, the Supreme Court of Nova Scotia reversed said judgment of dismissal and made instead thereof the following order:—

And it is further ordered that the defendant, Strand Theatre Company, Limited, its managers, servants and agents be and they are hereby restrained from unlawfully obstructing the free access to and egress from the premises of the plaintiff, Cahill & Company, at the southeast corner of the intersection of Sackville and Argyle streets in the city of Halifax by the collection of crowds of people or otherwise.

From that, by leave of said court, the said defendant appeals to this court.

There appears herein some evidence which, within the doctrine relied upon in the case of Lyons v. Gulliver[2], might have justified a judgment for damages if that form of relief had been sought or an injunction restraining the repetition of the offences disclosed in the evidence I refer to.

The above quoted order being confined to the restraining feature "unlawfully obstructing the free access to and egress from the premises of the plaintiff," &c., can result in nothing more than the trial of a specific complaint founded upon facts disclosing such an unlawful obstruction hereafter, and the payment of the costs as awarded.

In other words there seems to me nothing in fact or law involved in this appeal but a mere question of costs.

The uniform jurisprudence of this court has rightly been to refuse to interfere with a mere question of costs.

What then is left for us to consider? If there occur any future like offences they must be decided upon the facts according to the relevant law applicable thereto.

[Page 102]

I am sorry to hear counsel suggest that the proof in such cases must depend solely upon that furnished by affidavits in support or denial of the allegations of any such offence, and that there can be no cross-examination.

Such a feature in the administration of justice I suspect must, if so, be confined to Nova Scotia, for elsewhere rules of practice generally provide for cross-examination of parties making affidavits.

That, of course, is not always so satisfactory as the cross-examination in an open trial, but if its operation does not exist in Nova Scotia I imagine some means can be devised by the courts there for overcoming such an unsatisfactory condition of affairs.

I think that must be entrusted to the local courts.

If there had been pleadings, or the court had seen fit to permit of amendment to substitute them for the procedure adopted so as to allow a judgment for damages by way of remedying the undoubted wrong that has occasionally been suffered, coupled with costs of suit, it would, to my mind, have more appropriately met the necessities of the case than such an injunction as framed.

On the other hand I cannot say that there was no evidence of a cause of action and, as a result, hold the appellant at liberty to pursue a like course of conduct as it undoubtedly did.

Lawlessness is not to be encouraged by giving a license to repeat such offences as were committed.

A little vigorous effort on the part of the local authorities, if invoked by appellant, should produce the result desired.

I think the appeal should be dismissed with costs.

[Page 103]

Duff J.—The form of the order may be open to objection, Parker v. First Ave. Hotel Co.[3], but the point was not clearly taken and the Court has full control on its own order. I think the appellant has not made out a case for interference.

Anglin J.—After considering all the evidence I find myself unable to say that the careful appreciation of it in Mr. Justice Mellish's judgment is not correct. It discloses, in my opinion, an unjustifiable interference (for which the defendants are clearly responsible) with the plaintiffs' undoubted right to the full enjoyment of their property. The defendants must find some means of putting a stop to the obstruction complained of, even if to do so should necessitate the incurring of additional expense or some curtailment of the profitable use to which they are now putting their own property. Lyons v. Gulliver[4]. Sic utere tuo ut alienum non laedas is an elementary principle in point. The evidence shews that the unlawful obstruction continued between the date of the writ and that of the trial.

Had objection been clearly taken to the form of the order of injunction I am not entirely satisfied that it should not have been modified. An injunction against

unlawfully obstructing free access to and egress from the plaintiffs' premises by the collection of crowds of people or otherwise

is open to the objection that it merely expresses, and in terms no more precise, a general obligation which the law imposes. It leaves undecided and open for discussion on a motion to punish for breach of it what is prohibited. Cother v. Midland Ry. Co.[5]; Attorney General v. Staffordshire Co. Coun.[6]; Parker v. First Avenue Hotel Co.3.

[Page 104]

On the other hand, however, it may be that the view of the Supreme Court of Nova Scotia was that adequate protection could not be afforded to the plaintiffs by an order couched in less comprehensive terms. Elliott v. North Eastern Ry. Co.[7]. Vere v. Minter[8]. Moreover the defendants' contention has been that no injunction whatever should have been granted rather than that an order more definite and precise should have been made.

On the whole the appellants have, in my opinion, failed to make out a case for interference with the order against which they appeal.

Brodeur J.—It has been suggested that the control of crowds in a highway was a matter for police regulation and that the owner of a theatre was not responsible because persons collected before the hour at which it opened, formed a queue on the sidewalk and obstructed the access to the adjacent premises. But the Court of Appeal in England decided this question adversely to that suggestion and declared that if the natural and probable result of what a person is doing will be the collection of a crowd which will obstruct the highway, then the obstruction is an actionable nuisance and this person could be restrained. Lyons Sons v. Gulliver[9].

It does not seem that a theatre queue under all circumstances and in all conditions is an actionable nuisance. There must be some unreasonable use or obstruction of the highway so as to prevent the access to and egress from the neighbouring premises and that obstruction must be calculated to deter customers, to some extent, from resorting to those adjacent premises.

[Page 105]

Each case, however; should be governed by its own facts and an injunction should be issued only in circumstances which would amount to a nuisance.

The owner of the theater in the present case is alive to these exigencies of the law and claims that he had been doing everything in his power to minimize inconvenience to the plaintiff, his neighbour, and is willing to incur all necessary expenses arising out of a larger police force to control the crowd.

The evidence, however, shews that the plaintiffs' premises have been unduly obstructed and customers desiring to enter his premises unduly interfered with. The evidence given by the police authorities is generally favourable to the owner of the theatre; but there were facts and circumstances established by evidence, which was not contradicted, which shewed undue interference. I am inclined to think that the police protection was not sufficient; and as the appellant has assumed the onus of seeking and even paying for that police protection, he has then incurred liability. On the whole I agree with the judgment a quo.

The appeal should be dismissed with costs.

Mignault J.—The law governing a case of this description has been authoritively stated by the English Court of Appeal in Lyons, Sons & Co. v. Gulliver[10], also the case of queues formed by the patrons of a theatre waiting for admission, and obstructing the entrance to a neighbouring business establishment. The English case, however, differs from the present one in that, in the former, damages only, and not an injunction, were granted, in view of the undertaking

[Page 106]

given by the defendants to open their doors an hour before the performance, and it further differs in that the trial judge there found on the facts in favour of the plaintiffs, whereas here Mr. Justice Drysdale the trial judge said:—

I find these queues have been formed and kept, that is reasonably kept, on the outer side of the sidewalk with ample space for people to pass up and down the sidewalk between the queues and the buildings, for a long period before action. I find that plaintiff's shop has not been obstructed or customers desiring to enter interfered with; in short, so far as the entrance to plaintiff's shop is concerned, the plaintiff company has no reasonable cause of complaint. Plaintiff Cahill in describing conditions is somewhat in conflict with the testimony of the police. His statements are, however, I think, exaggerated and this perhaps owing more to his state of feelings than an intention to exaggerate, as conditions that now exist and for a long time previous have existed. I accept the testimony of the police. These men are truthful and I believe them and I do not think the Defendant Company had been so using its property as to interfere with plaintiff's business but reasonably and in a way as of right they might…

This finding is my only difficulty, for my reading of the evidence would lead me to agree with Mr. Justice Mellish, and were the conditions described in the evidence to continue, I cannot doubt that the respondents would be greatly prejudiced thereby. I think, however, that the way the appellant carries on its business inevitably leads to the gathering of crowds in front of the theatre and of the neighbouring properties. It gives one performance in the afternoon and two in the evening. The greater crowds gather for the second evening performance, and the doors of the theatre are closed about 8.20 p.m., when the lobby is usually filled, and the practice being not to let the second audience in before the first has left the theatre by the side exits, the doors are opened only about 8.40 or 8.50 p.m., so that, during from twenty to thirty minutes at least, a crowd naturally gathers. At first this crowd obstructed the street, but the city

[Page 107]

police formed them into queues on the sidewalk, on one side those who already had tickets, and on the other those who had not secured them. That the queue thus formed in front of the respondent's premises obstructed the entrance thereto cannot be doubted on any reading of the evidence. It is true that the appellant carries on a legitimate business, but that is no excuse for the annoyance caused to the respondents and the interference with the free and unobstructed access to their place of business. The appellant, if it chooses to give two performances each evening, and to let one audience out before it admits the other, must not so use its right as to interfere with the equal rights of the respondents to carry on their business without any interference; sic utere tuo ut alienum non laedas.

The form of injunction granted by the court below is not free from objection, for it states that the appellant must not unlawfully obstruct the free access to and egress from the premises of the respondents, and thus in effect orders the appellant not to violate the law, but the appellant's case is really that no injunction at all should have been granted. It is indeed very questionable whether such an injunction is in any way prejudical to the appellant, for the latter certainly cannot claim the right to unlawfully obstruct the respondent's premise; and if any one has an interest in having the injunction made more precise it is rather the respondents, for in any case where it is claimed that the injunction has been disobeyed the issue will be, as it was in this case, whether the appellant has unlawfully obstructed the free access to and egress from the respondents' premises.

[Page 108]

On the whole, I do not feel disposed to interfere with the judgment of the Supreme Court en banc and the appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitor for the appellant: F. H. Bell.

Solicitor for the respondent: W. L. Hall.