Antrim Truck Centre
Ltd. v. Ontario
(Transportation), 2013
SCC 13, released today, has a useful discussion of private
nuisance:
[19] The elements of a claim in private nuisance have often been
expressed in terms of a two-part test of this nature: to support a claim in
private nuisance the interference with the owner’s use or enjoyment of land must
be both substantial and unreasonable. A substantial interference
with property is one that is non-trivial. Where this threshold is met, the
inquiry proceeds to the reasonableness analysis, which is concerned with whether
the non-trivial interference was also unreasonable in all of the circumstances.
This two-part approach found favour with this Court in its most recent
discussion of private nuisance and was adopted by the Court of Appeal in this
case, at para. 80: St. Lawrence Cement Inc. v. Barrette, 2008
SCC 64, [2008] 3 S.C.R. 392, at para. 77; see also St.Pierre v. Ontario (Minister of Transportation and
Communications), [1987] 1 S.C.R. 906, at pp.
914-15, quoting with approval H. Street, The Law
of Torts (6th ed. 1976), at
p. 219; Susan Heyes Inc. v. Vancouver (City), 2011
BCCA 77, 329 D.L.R. (4th) 92, at para. 75, leave to appeal refused [2011] 3
S.C.R. xi; City of Campbellton v. Gray’s Velvet Ice Cream
Ltd. (1981), 127 D.L.R. (3d)
436, at p. 441 (N.B.C.A.); Royal Anne Hotel Co. Ltd. v. Village of Ashcroft (1979), 95 D.L.R. (3d) 756
(B.C.C.A.), at p. 760; Fleming’s The Law of Torts (10th ed. 2011), at s. 21.80; Street
on Torts (13th ed. 2012), at
p. 443; L. N. Klar, Tort Law (5th ed. 2012), at
p. 759.
[20] The two-part approach, it must be conceded, is open to
criticism. It may sometimes introduce unnecessary complexity and duplication
into the analysis. When it is applied, the gravity of the harm is, in a sense,
considered twice: once in order to apply the substantial interference threshold
and again in deciding whether the interference was unreasonable in all of the
circumstances.
[21] On balance, however, my view is that we ought to retain the
two-part approach with its threshold of a certain seriousness of the
interference. The two-part approach is consistent with the authorities from
this Court (as I noted above). It is also, in my view, analytically sound.
Retaining a substantial interference threshold underlines the important point
that not every interference, no matter how minor or transitory, is an actionable
nuisance; some interferences must be accepted as part of the normal give and
take of life. Finally, the threshold requirement of the two-part approach has a
practical advantage: it provides a means of screening out weak claims before
having to confront the more complex analysis of
reasonableness.
[22] What does this threshold require? In St. Lawrence Cement, the Court noted that
the requirement of substantial harm “means that compensation will not be awarded
for trivial annoyances”: para. 77. In St. Pierre,while the Court was careful to
say that the categories of nuisance are not closed, it also noted that only
interferences that “substantially alte[r] the nature of the claimant’s
property itself” or interfere “to a significant extent with the actual use being made of the
property” are sufficient to ground a claim in nuisance: p. 915 (emphasis added).
One can ascertain from these authorities that a substantial injury to the
complainant’s property interest is one that amounts to more than a slight
annoyance or trifling interference. As La Forest J. put it in Tock v.
St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181, actionable
nuisances include “only those inconveniences that materially interfere with
ordinary comfort as defined according to the standards held by those of plain
and sober tastes”, and not claims based “on the prompting of excessive ‘delicacy
and fastidiousness’”: p. 1191. Claims that are clearly of this latter nature do
not engage the reasonableness analysis.
[23] In referring to these statements I do not mean to suggest
that there are firm categories of types of interference which determine whether
an interference is or is not actionable, a point I will discuss in more detail
later. Nuisance may take a variety of forms and may include not only actual
physical damage to land but also interference with the health, comfort or
convenience of the owner or occupier: Tock, at pp. 1190-91. The point is not
that there is a typology of actionable interferences; the point is rather that
there is a threshold of seriousness that must be met before an interference is
actionable.
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