Hanukkah begins this weekend and Christmas is just over two weeks away. Lots of people are finalizing holiday travel plans and making preparations to host visiting family members, including some they may not be eager to see. Fights with family are as much a holiday tradition as turkey and pumpkin pie: Not everyone has them every year, but enough people do that they’re a recognizable part of the culture of the season. Against this backdrop, the University of British Columbia and Peter A. Allard School of Law Prof. Adam Hofri-Winogradow took a look at what your legal options are when holiday-related disputes get out of hand, and why you probably shouldn’t resort to suing, even if you can. “The law does not make the entirety of norms applicable to human life,” says Hofri-Winogradow in a “lighthearted Q & A” published by the university on Tuesday. “You might be within your rights to sue your relatives, but there are other considerations that should bear on your exercising these rights, including the social norms applicable to normal human interactions.” Food poisoning and overstayed welcomes An example of this misalignment between laws and social norms can be seen on the matter of food poisoning. What if your cousin undercooks the turkey and you get sick as a result, the Q & A posits. Can you sue? “If someone has given you spoiled food to eat and you suffer harm as a result, then yes, what they’ve done can be conceived of as a tort, and you can sue them and demand compensation or an apology,” Hofri-Winogradow says. Few people would ever do this, however. Food poisoning is generally something people experience as an unfortunate circumstance, not a wrong that needs righting. The hypothetical cousin in this situation likely would have gotten sick too, and probably would apologize to the whole group without needing to be ordered to do so by a court. In a similar vein, people have the right to kick out their hated relatives after inviting them to stay, according to Hofri-Winogradow. “By inviting your relatives, you’re giving them a licence to stay and from a legal point of view, yes, you can kick them out because a licence is terminable at will—you’re not leasing your home or any part thereof to your relatives," the professor says. “This permission is withdrawable at any point, including verbally, since you gave permission verbally.” Again, this is a legal dispute that’s unlikely to end up in court. Most people leave on their own when told they’re no longer welcome. Similarly, the relative who rants about politics ought to stop doing so when asked, but if they don’t, Hofri-Winogradow’s suggested remedy is to reprimand them and not invite them next year. While a holiday gathering may not be an appropriate place to push freedom of speech “to its furthest limits,” the professor says the Charter’s protection of this freedom does extend to the dinner table, and a lawsuit against your relative would be thrown out. “That being said, hate speech is a criminal offence,” Hofri-Winogradow adds. The law of gifts What about taking back a gift? Legally speaking, Hofri-Winogradow says, gifts cannot be taken back. The question that usually ends up being debated in court, therefore, is whether an item—usually a large sum of money—meets the definition of a gift. “For a gift to be made, we need three elements: an intention to give, an intention or consent to receive and delivery,” the professor says. “If all three are present, you can’t take a gift back.” According to Hofri-Winogradow, the law assumes that a transfer of money creates a trust, unless the transfer is from a parent to their underage child, in which case it’s assumed to be a gift. “A large sum of money moves from my account to yours,” Hofri-Winogradow says. “I say I’ve created a trust, appointed you trustee, now I’d like the money back. But your argument would be that the money was a gift … The onus is on the recipient of the money to prove it was a gift by demonstrating those same three elements.” Trespassing and neighbour disputes Could you sue carolers for trespassing or your neighbours for a light display that is too bright? Probably, according to Hofri-Winogradow, but that shouldn’t be your first recourse. “Technically, if people are entering your land without your consent, then yes, they are trespassing,” the professor says. “One could perhaps argue that there is implied consent in society for folks to enter your property in the context of Christmas caroling.” Regardless of whether that implied consent exists or not, the miserly among us could put up a sign saying, “Visitors unwelcome, no caroling permitted, go away or else,” Hofri-Winogradow says. “This would make proving your trespass case easier, because your objection was crystal clear.” Likewise, too-bright lights could fall under the tort of nuisance, according to Hofri-Winogradow. “If someone unreasonably interferes with your use of your home, you can sue them and ask for either compensation or an injunction,” he says. “This could, in theory, apply to, say, brightly lit decorations shining through your bedroom window all night, preventing you from sleeping. But given that holiday decorations are socially sanctioned, the courts would naturally insist on a pretty high threshold before they start treating them as a nuisance.” The first step in such a dispute—as in most of the situations outlined in the Q & A—would be to try to talk it out with your neighbour, Hofri-Winogradow says. Suing without first attempting to find a resolution to the disagreement could negatively impact your court case. Regardless of whether you technically could sue someone over these holiday issues, Hofri-Winogradow doesn’t think you should. Most of these hypothetical festive disputes are things that can and should be resolved by social norms, rather than filing suit, the professor says. “The law is essentially a default, backup option for enforcing reasonable behaviour. And that’s the way it should be,” he says. RELATED STORIES:
