Thursday, March 7, 2013

Private Nuisance

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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