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Private Nuisance

Private nuisance is wrongful interference with another's land. There is a tort of public nuisance, though I have not selected any cases yet.

. TMS Lighting Ltd. v. KJS Transport Inc.

In TMS Lighting Ltd. v. KJS Transport Inc. (Ont CA, 2014) the Court of Appeal engaged in a review of the doctrine of private nuisance, with particular attention to the issue of abnormal sensitivity of the plaintiff. The fact situation was airborne dust infiltration from a neighbouring manufacturer. The Court reviewed and characterized the case doctrine as follows:
[13] To begin, the trial judge recognized the two-part test for establishing private nuisance and the factors relevant to the assessment of the reasonableness of an unauthorized interference with private property rights, as set out in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2011 ONCA 419 (CanLII), 2011 ONCA 419, aff’d 2013 SCC 13 (CanLII), 2013 SCC 13. See also, Mandrake Management Consultants Ltd. v. Toronto Transit Commission, reflex, [1993] O.J. No. 995, 102 D.L.R. (4th) 12 (Ont. C.A.).

[14] Antrim confirms, at para. 18, that private nuisance consists of an interference with a plaintiff’s use or enjoyment of land that is both substantial and unreasonable. The Supreme Court explained, at para. 19:
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.
[15] With respect to the reasonableness component of the test for private nuisance, the Antrim court emphasized, at para. 25, that the reasonableness of the interference must be assessed in light of all the relevant circumstances. Further, under the reasonableness inquiry, the court assesses, “in broad terms, whether the interference is unreasonable by balancing the gravity of the harm against the utility of the defendant’s conduct in all of the circumstances”: Antrim at para. 26. While the courts are not limited by any specific list of factors in assessing the gravity of the harm occasioned by the defendant, such factors as the severity of the interference, the character of the neighbourhood, the sensitivity of the plaintiff to the harm caused, and the frequency and duration of the interference may be relevant under the reasonableness inquiry: Antrim at paras. 26 and 53-54.
. 1317424 Ontario Inc., v. Chrysler Canada Inc.

In 1317424 Ontario Inc., v. Chrysler Canada Inc. (Ont CA, 2015) the Court of Appeal upheld a lower court ruling that a claim based in nuisance emanating from the land of the plaintiff was untenable in law. Here the defendant sold the plaintiff land that the plaintiff alleged had not been properly decontaminated. The court cited this Nova Scotia case with (apparent) approval:
[5] The issue of whether a nuisance must emanate from another’s land was recently specifically addressed by the Nova Scotia Court of Appeal in W. Eric Whebby Ltd. v. Doug Boehner Trucking & Excavation Ltd., 2007 NSCA 92 (CanLII), 258 N.S.R. (2d) 41.

[6] In Whebby, at para. 128, Cromwell J.A. (as he then was) stated that regardless of who causes the nuisance, the interference with the plaintiff’s land must be indirect and not direct, meaning it must originate elsewhere than on the plaintiff’s land. He explained, at para. 131, that this distinction is not a mere legal technicality, but that it reflects
the role of the modern law of nuisance as a means of reconciling conflicting interests in connection with competing uses of land: see Royal Anne Hotel [Co. v. Ashcroft, [1979] 2 W.W.R. 462 (B.C.C.A).] at 467; Tock v St. John’s Metropolitan Area Board, 1989 CanLII 14 (SCC), [1989] 2 S.C.R. 1180 per LaForest, J. at 1196. Before there can be conflicting interests in connection with the use of land, there must be uses of different lands which come into conflict.
. R v Henderson

In R v Henderson (Div Ct, 2008) the Divisional Court considered a claim in private nuisance:

[16] The trial judge noted that the claim in nuisance is the most difficult one, an observation with which I am in full agreement. Ultimately, the trial judge found in the plaintiff’s favour on this issue, and it is on this cause of action that the plaintiff’s damage award is predicated. A substantial portion of the trial judge’s reasons on this issue deal with whether the defence of statutory authority applies in this case. He concluded that it did not. The Crown does not take issue with that finding, and, as I understand it, did not assert it as a defence at trial, although case law dealing with the point had been filed.

[17] On the main issue of nuisance, the trial judge held, at p. 5:
A nuisance is caused by an act or omission whereby a person is unlawfully annoyed or disturbed in the enjoyment of land. The nuisance may take a variety of forms including actual physical damage and interference with the owner’s comfort or convenience. The defendant in final argument took the position that no nuisance occurred because the interference in question took place in the riverbed and not on the plaintiff’s land. I see no merit in this attempted distinction. There was physical damage to the plaintiff’s personal property. Whether that property was sitting directly on the plaintiff’s land or in the riverbed (where it was lawfully entitled to be) is immaterial. The flood also interfered with the plaintiff’s comfort and convenience of his property.
[18] The Crown submits that the trial judge erred in two respects: (1) he should have dismissed the claim because causation had not been proven, in accordance with his factual findings on the negligence claim; and (2) he erred in finding nuisance in a situation in which the nuisance occurred only over the riverbed, which was owned by the Crown rather than the plaintiff. The other elements of nuisance were conceded.

[19] On the issue of causation, counsel for the Crown submits that the trial judge failed to refer to causation when dealing with the tort of nuisance. However, the Crown argues that the trial judge’s findings on this issue when dealing with the negligence claim are determinative. The Crown further argues that the trial judge found that the cause of the damage to Mr. Henderson’s dock was the velocity of the water, which in turn was caused by the unusual terrain of the riverbed and a narrowing of the river as it neared the plaintiff’s property. Therefore, the Crown submits that the acts of the defendant did not cause the damage to the plaintiff’s property and the cause of action in nuisance must fail.

[20] In my view, that is an unfairly narrow interpretation of the trial judge’s reasons. Causation is a common issue in every cause of action raised by the plaintiff. Once the trial judge made a finding of causation in dealing with the negligence cause of action, it was not necessary to repeat that for each of the other causes of action. I recognize that the trial judge’s findings on causation are somewhat confusing as they are jumbled up with his findings on whether the defendant’s actions were negligent. Nevertheless, in my view, it is apparent from the trial judge’s factual findings that he accepted that the release of water from the upper lakes by Parks Canada caused the increase in water flow and increase in velocity of the water in the Gull River and therefore caused the damage to the plaintiff’s property. For example, the trial judge held that “any change in the flow for the plaintiff was the result of the additional rainwater in the larger reservoir lakes north of the plaintiff being released” and that “the additional flow of water to the plaintiff . . . was the consequence of the defendant needing to discharge the rainwater that fell in order to prevent damage to the residents further north”. The application of common sense leads to the inevitable conclusion that the release of a large volume of water into the river will not only increase the volume of water in the river, but also the velocity at which that water moves. Further, there was specific evidence on this point from Mr. Ness who stated that, although it was the velocity that caused the damage to Mr. Henderson’s dock, that is “linked to the flow”: Transcript at p. 128. He also said (at p. 112 of the Transcript) in answer to a question about the relationship between water flow and water velocity, “They’re essentially basically as. . . as you get higher flow, your velocities will typically increase because you’re. . . you’re trying to force a larger volume of water per unit through a river channel.” He said the velocity will increase relatively proportionate to the increase in the water flow.

[21] The Crown also argued that causation was not proven because Parks Canada only released the amount of rainwater than had actually fallen. Therefore, he suggested, the increased volume of water in the river was solely attributable to rainfall, and not the acts of the defendant. However, Mr. Ness also testified (at p. 128 of the Transcript) that as a result of the release of water from the lakes, the water level flowing past Mr. Henderson’s property was higher than it would have been as a result of the rainfall alone. Therefore, the Crown’s position on this point is not consistent with the evidence.

[22] In my view, it is clear from the evidence that the release of water by Parks Canada increased the water flow in the Gull River (which is a measure of volume), increased the water level in the Gull River (which is a measure of height) and increased the water velocity in the Gull River (which is a measure of speed). It is also obvious that these three factors are interconnected. While the dock might not have been swept away if the velocity had been less, and while the natural feature of the narrowing of the river near Mr. Henderson’s cottage contributed to the velocity, it is equally clear that the increased volume of water also directly contributed to that velocity. The point is that all of these factors were connected to the release of the water by Parks Canada. It is splitting hairs to say that the damage was caused by the velocity and that the velocity was caused by the narrowing of the river and to pretend that this had nothing to do with the release of water by Parks Canada. Mr. Ness was candid in his evidence about this in examination in chief. He acknowledged that the release of water from the lakes to the north increased the water flow at Mr. Henderson’s cottage beyond what would have been caused by the rainfall stating, “It would have likely have been lower but we would have probably have been in here for many more lawsuits from the lake owners. The lake owners would have . . . would have flooded out horribly.”: Transcript at p. 128. In other words, Parks Canada recognized that the water flow would be increased downstream and that properties might be flooded. However, they had an even bigger problem upstream in the lakes and they chose the lesser of the two evils, in balancing their responsibilities to everyone. That may not make them negligent, as was determined by the trial judge, but it does not change causation. There is a direct causal relationship between Parks Canada releasing water from the upper lakes and the damage to Mr. Henderson’s property downstream.

[23] The reasons of the trial judge must be looked at as a whole and considered in context. In my view, on a fair reading of the reasons in this case, it is clear that the trial judge was of the view that the actions of Parks Canada in releasing water from the upper lakes caused the flooding problem in the lower rivers, and caused the damage to Mr. Henderson’s property. He also concluded that notwithstanding that Parks Canada caused this problem, it had acted properly and without negligence. However, there can be no doubt that he recognized causation was a necessary element of all of the torts and that he was satisfied that the defendant’s actions caused the damage. Although an express ruling to that effect would have been helpful, the failure to say this explicitly when it is obvious from the rest of the reasons, is not an error of law. Accordingly, I am of the view that the element of causation was met.

[24] Finally, the Crown argues that only a landowner or occupier of affected land may sue in nuisance and that Mr. Henderson therefore has no status to sue for damage to his dock which was resting on the riverbed owned by the Crown. It is well-established in the case law and academic writing that the tort of nuisance is rooted in an interest in land, either actual ownership or an exclusive right to occupy, and further that a mere licensee does not have a sufficient interest to sue in nuisance: Hunter v. Canary Wharf, [1997] A.C. 655 (H.L); Vaughn v. Halifax-Dartmouth Bridge Commission (1961), 1961 CanLII 444 (NS CA), 29 D.L.R. (2d) 523 (N.S.S.C.); Tock v. St. John’s Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181; Fleming, John G., The Law of Torts, 8th ed. (Sydney: The Law Book Company, 1992) at 416; Fridman, Gerald, The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002).

[25] There was considerable argument on the appeal before me as to the nature of Mr. Henderson’s right to use the riverbed abutting his property and how that use is properly characterized as a question of law. For purposes of this appeal, I accept that Mr. Henderson had no ownership interest in the riverbed and that whatever the arrangement there was with the Crown, it was not in the nature of an exclusive possession of the riverbed such as to ground a claim in nuisance. I also agree with the Crown’s position that regardless of whether Mr. Henderson is deemed to be a “tenant” of the riverbed over which his dock extends for the purposes of assessment and property taxes, he is not an owner or occupier for purposes of the tort of nuisance. However, I do not agree with the Crown’s position that such a conclusion is determinative of Mr. Henderson’s status to sue in nuisance.

[26] Like the trial judge, I “see no merit in this attempted distinction” between a nuisance that occurred in the riverbed as opposed to on the plaintiff’s land: Reasons for Judgment at p. 5. There was uncontradicted evidence at trial that the floodwaters extended beyond the banks of the Gull River and rose up to 20 meters across the land of adjacent property owners, including the plaintiff. Mr. Henderson’s dock did not rest only on the riverbed. It was also attached to his land. If the floodwaters had interfered only with the portion of the dock resting on the riverbed and left the part attached to the land undisturbed, the dock would still be attached to the land. However, that is not what happened. The water flow ripped the dock from its mooring on Mr. Henderson’s property and carried the whole thing downstream some considerable distance, causing considerable damage. For many Canadian cottagers, including Mr. Henderson, a dock is a key component for the enjoyment of a waterfront vacation property. The floodwaters encroached on Mr. Henderson’s property, removed his dock from the land and thereby interfered with his enjoyment of his land. That is sufficient to give him standing to sue for nuisance. Accordingly, there was no error of law in the trial judge’s conclusion that Mr. Henderson had met the requirements for a cause of action in nuisance.
. St. Pierre v. Ontario (Minister of Transportation and Communications)

In St. Pierre v. Ontario (Minister of Transportation and Communications) (SCC, 1987) the Supreme Court of Canada considered a claim for 'injurious affection', which the court treats as an aspect of private nuisance:
11. The principal cases relied on by the appellants‑‑Nor‑Video Services Ltd., supra; T. H. Critelli Ltd., supra; and Schenck, supra‑‑are said to take a broader approach to the question of nuisance than did the earlier cases. In my view, however, they are distinguishable from the circumstances which face the Court here. In each of those cases the action of the public authority substantially altered the nature of the claimant's property itself or at least interfered to a significant extent with the actual use being made of the property, with a resultant loss of value of the property. The same is true of the cases cited by Houlden J.A. in the Court of Appeal and relied on by the Land Compensation Board as instances in which recovery for injurious affection has been allowed. For example, in Loiselle, supra, the claimant's service station was left at the dead end of a cul‑de‑sac as a result of a diversion of a highway in order to accommodate the construction of the St. Lawrence Seaway. Similarly, in Larson, supra, a concrete median was built in the middle of the highway running in front of the claimant's motel, thereby severely restricting access with a resultant loss of value of the property. In both cases, the construction of the public works in close proximity to the lands so changed their situation as to greatly reduce if not eliminate their value for the uses to which they had been put prior to the construction and could, therefore, be classed as nuisances.

12. No such interference is to be found in the circumstances of this case. I agree with the Court of Appeal that what the appellants complain of here is the loss of prospect or the loss of view. There are as well the elements of loss of privacy, but in essence the complaint is that once they dwelt in a rural setting with a pleasing prospect and now they are confronted on one side of their land at least with a modern highway. It is a claim for loss of amenities. That the use of the highway will constitute a disruptive element is probably true but that is a field of damage which may not be considered. The claim is limited to loss occasioned by the construction.

13. From the very earliest times, the courts have consistently held that there can be no recovery for the loss of prospect, (William Aldred's Case (1610), 9 Co. Rep. 57 b, 77 E.R. 816; Foli v. Devonshire Club (1887), 3 T.L.R. 706; Walker v. Pioneer Construction Co. (1967) Ltd. (1975), 1975 CanLII 481 (ON SC), 8 O.R. (2d) 35 (H.C.); Muirhead v. Timbers Brothers Sand & Gravel Ltd. (1977), 3 C.C.L.T. 1 (Ont. H.C.); see also Linden, Canadian Tort Law (3rd ed. 1982), at pp. 539‑40; Buckley, The Law of Nuisance (1981), at p. 34; Fleming, The Law of Torts (6th ed. 1983), at p. 385). Moreover, I am unable to say that there is anything unreasonable in the Minister's use of the land. The Minister is authorized‑‑indeed he is charged with the duty‑‑to construct highways. All highway construction will cause disruption. Sometimes it will damage property, sometimes it will enhance its value. To fix the Minister with liability for damages to every landowner whose property interest is damaged, by reason only of the construction of a highway on neighbouring lands, would place an intolerable burden on the public purse. Highways are necessary: they cause disruption. In the balancing process inherent in the law of nuisance, their utility for the public good far outweighs the disruption and injury which is visited upon some adjoining lands. The law of nuisance will not extend to allow for compensation in this case.

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