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What a Nuisance!


A homeowner constantly burns garbage in their yard, causing acrid smoke to drift to their neighbour’s property and ruining their backyard barbecue. A property owner excavates land, resulting in the loss of structural support to the building on the adjacent property. A person plays loud music at all hours of the night, interfering with another’s ability to sleep. Floods, spills, wandering animals or barking dogs … these are just a few examples of cases where a court has had to wade into the law of private nuisance.

Nuisance is a historic tort (an act or omission that amounts to a civil wrong). The authors of Canadian Tort Law: Cases, Notes and Materials (Linden, Klar, Feldthusen, 14th ed, Markham: LexisNexis Canada) note that it “…describes a type of harm suffered by the plaintiff, rather than a type of objectionable conduct engaged in by the defendant.” Complainants often turn to nuisance law when a negligence claim is not available to them. Recently, in Ottawa, we’ve seen its effectiveness at deterring socially undesirable behaviour. More on that below, but first, let’s answer the question: what is nuisance?

Private Nuisance

There are two types of nuisance, private and public – our focus here is on the private kind. Private nuisance relates to the use of one’s land in a way that interferes with another person’s enjoyment of their land. For a nuisance claim to be justifiable, the activity must originate from somewhere other than the claimant’s land. Furthermore (as Linden et al. point out), it must be a “substantial interference with an occupier’s use and enjoyment…which is unreasonable in the circumstances.”

The difficulty in nuisance cases is applying this concept of reasonableness. Determining whether something is a nuisance always involves balancing interests and whether the interference with someone’s comfort or convenience is sufficiently serious to meet the legal threshold.

Clerk & Lindsell on Torts, 20th ed. (London: Thomson Reuters) discusses “striking a balance” between the rights of the defendant and the claimant and says, “a useful test is what is reasonable according to ordinary usages of mankind living in a particular society.”

Straightforward examples of nuisance are those where there is actual physical damage, but courts have also dealt with ‘loss of amenity’ cases such as interference with a view or smells, noise, or some other intangible. In these cases, the balancing act is harder and the nuisance more challenging to establish. Nuisance may also occur in the context of two activities being conducted close to one another, such as two businesses.

The Characteristics of Nuisance

The existence of nuisance is a question of context, circumstances, and degree. In Sturges v Bridgman (1879, 11 Ch D 852), a landmark nuisance case from 1879, the court said, “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” Put another way, while an owner of land in a quiet residential suburb may have a claim of nuisance against a neighbour who starts up a chicken farm, he may not be entitled to the same protection if he moves into an industrial area next to a chicken plant.

Over time, in cases where the circumstances of the nuisance have not resulted in actual physical damage, the courts have developed four factors to determine whether events complained of constitute an actionable nuisance.
They are:
· The characteristics of the locality in question
· The severity of the harm
· The sensitivity of the plaintiff
· The utility of the defendant’s conduct

The test for nuisance is objective, based on the standard of a “reasonable resident” of the area. If the activity is just a regular part of daily life of that locale, then it will be unlikely to meet the test.

The Freedom to be a Nuisance?

Sometimes a private nuisance lawsuit can quickly achieve something that law enforcement processes do not. A person who lives in downtown Ottawa, where the weeks-long gathering dubbed the “Freedom Convoy” took place, started a class action lawsuit in nuisance on behalf of all residents disturbed by the gathering. The plaintiffs claim that the repeated honking of loud trucks at all hours was a real disturbance to the residents’ quiet enjoyment of their property, as they reported not being able to sleep or concentrate on work. Although we don’t know whether the case will ultimately be successful, the granting by the court of a 10-day injunction against horns would seem to indicate that the freedom to protest may not extend to causing a nuisance to private property owners.

Defences to a Nuisance Action

Nuisance continues to be a widespread claim because once it is established, there are very few defences to it, so the defendant will typically be held liable.

In most cases, even if the damage is caused by an independent contractor, such as a negligently constructed retaining wall giving away, the property owner is still liable. However, it is worth mentioning that a landlord will generally not be responsible for the nuisances arising from the conduct of a tenant unless the landlord has some control over the tenant’s behaviour.

Municipalities may have a special defence which provides that liability will not be imposed if the nuisance is the inevitable result its exercise of statutory authority.

While there are a few other narrow defences, they are challenging to establish and often ineffectual.

The Remedies for Nuisance

What is their remedy if a plaintiff convinces a court that a nuisance exists?

Historically, the relief in a private nuisance case was an injunction (a court order stopping the activity in question) because nuisance typically involves an ongoing interference with property rights. While the courts now generally view this remedy as optional, in the case of the “Freedom Convoy,” the court was willing to issue a 10-day injunction to stop the horns.

The general rule is that if a nuisance’s impact on a plaintiff’s legal rights is considered minor and can be calculated in dollar terms, then damages may be issued instead of an injunction.

Damages for nuisance may involve the cost to remedy or mitigate the nuisance, general damages for mental distress, or even punitive damages where the conduct was malicious or prolonged. The Ottawa residents’ lawsuit against the “Freedom Convoy” has requested punitive damages.

Today, while systems of land use planning and environmental regulations have taken the place of some nuisance actions, the ongoing popularity of nuisance among property owners as a way to get relatively fast results in a court of law means it’s unlikely to disappear into the annals of legal history any time soon.

This is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. ARAG does not warrant or guarantee the quality, accuracy or completeness of any information in this article.