Nuisance requires immediate harm

Smith v. Inco Limited, 2011 ONCA 628 is an important decision in nuisance. The defendant polluted certain lands but the pollution, while leading to increased metal deposits in certain lands, did not interfere in the use of the lands. Later the lands' value dropped and a claim was made against the defendant.

The Court held the drop in value not actionable. There needed to be proof of harm at the time of the pollution:

[57]         Where the nuisance is said to flow from the physical harm to land caused by the contamination of that land, the claimants must show that the alleged contaminant in the soil had some detrimental effect on the land or its use by its owners.  In this case, potential health concerns were the only basis upon which it could be said that the nickel particles harmed the land of the claimants.  It was incumbent on the claimants to show that the nickel particles caused actual harm to the health of the claimants or at least posed some realistic risk of actual harm to their health and wellbeing.  The authors of The Law of Nuisance in Canada, at p. 85, although in a somewhat different context, aptly describe the nature of the harm the claimants had to prove:

It is true that private nuisance is predicated on harm to the plaintiff's property rights; but surely one of those rights must be the right to occupy the property without harm to one's health or even at the risk of one's life.  This is particularly necessary for residential property, where the heart of the property interest stems from the desire to live on the property.  Private nuisance vindicates the bundle of rights associated with one's property, and the right to live on one's land without risk to life or health must be a right in that bundle.  Additionally, the 'health' aspect of the bundle of rights that are protected by nuisance law has been noted in several cases.  [Emphasis added.]

[58]         Had the claimants shown that the nickel levels in the properties posed a risk to health, they would have established that those particles caused actual, substantial, physical damage to their properties.  However, the claims as advanced and as accepted by the trial judge were not predicated on any actual risk to health or wellbeing arising from the particles in the soil.  The result at trial would presumably have been the same had it been established beyond peradventure that nickel particles at any level had no possible effect on human health. 

[59]         The approach followed by the trial judge effectively removes any need to show that Inco's operation of its refinery caused any harm of any kind to the claimants' land.  It extends the tort of private nuisance beyond claims based on substantial actual injury to another's land to claims based on concerns, no matter when they develop and no matter how valid, that there may have been substantial actual injury caused to another's land.  On this approach, nuisance operates as an inchoate tort hanging over a property to become actionable, not by virtue of anything done to the property by the defendant, but because of public concerns generated many years after the relevant events about the possible effect of the defendant's conduct on the property.