Documentation:Torts/Private nuisance

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Index
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Private nuisance

While "[s]cholars and judges agree that the uncertain origins and the protean nature of the tort of private nuisance make it difficult to provide an exhaustive definition of the tort", the Supreme Court of Canada has accepted the following "as a working definition of private nuisance"[1]:

A person ... may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.[2]

Private nuisance is a distinct cause of action from public nuisance, which "is not concerned with private property, but it has to do with the interference with the right of the public to use and enjoy public areas".[3]

Origins of the common law of nuisance

In the news
Nuisance and injunctions
During the Freedom Convoy protests, after Ottawa citizens brought forth a proposed class action proceeding "based on the torts of private and public nuisance", the court granted an injunction.[4] This CBC video provides an overview.[5]

In Smith v. Inco Ltd, the Ontario Court of Appeal described the origins of nuisance, saying that it:

developed as a means by which...competing interests could be addressed, and one given legal priority over the other. Under the common law of nuisance, sometimes the person whose property suffered the adverse effects is expected to tolerate those effects as the price of membership in the larger community. Sometimes, however, the party causing the adverse effect can be compelled, even if his or her conduct is lawful and reasonable, to desist from engaging in that conduct and to compensate the other party for any harm caused to that person’s property. In essence, the common law of nuisance decided which party’s interest must give way. [6]

Coase theorem

Overview of the Coase theorem
This One Minute Economics video provides an overview and example of the Coase theorem.[7]


The Coase theorem suggests that, in cases where a use of property creates burdens for its neighbour, under ideal conditions—namely when there are no transaction costs—regardless of whose interest is given priority at law, "the market will reach the efficient outcome" through bargaining between the neighbours.[8]

However, "in the real world, there will almost always be positive transaction costs," which lead parties to turn to the courts to resolve their dispute.[8] In practice, it is significant how the law determines permissible from wrongful uses of property.

Elements of private nuisance

The test for private nuisance has "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."[9]

Elements of private nuisance[9][10]
Interference with the claimant’s occupation or enjoyment of land that is:
1. substantial (non-trivial) and
2. unreasonable
Just Torts on private nuisance
In this episode of Just Torts, Alan Zheng and Lihini de Silva provide an overview of private nuisance.[11]

Substantial interference

The first part of the test for private nuisance requires that the "interference with property is one that is non-trivial."[9] This means 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".[12]

There is not "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."[13] To this point, the Supreme Court of Canada has noted that, as with the tort of negligence, "the categories of nuisance are not closed".[14]

Unreasonable interference

The unreasonableness of the interference "must be determined by balancing the competing interests".[15] Factors that the courts have considered in making this determination include:

  • "[T]he nature of the interference"[16]
  • "[T]he duration of the interference, be it temporary, occasional, or permanent"[16]
  • "[T]he physical impact, if any, on the land"[16]
  • "[T]he character including the location of the neighbourhood"[16]
  • "[T]he normal sensitivities of the reasonable person to interferences to their property"[16]
  • "[T]he public utility of the defendant's use of its property"[16]
  • "[T]he nature of the defendant's conduct including whether the defendant's use of its own property is a natural or unnatural use"[16]
  • "[W]hether a disproportionate harm is being visited on the plaintiff for a benefit to the community at large"[16]

However, the Supreme Court of Canada clarified that the factors (in reference to "the severity of the interference, the character of the neighbourhood, the utility of the defendant’s conduct and the sensitivity of the plaintiff") are not a "checklist":

[T]he factors...are simply examples of the sorts of criteria that the courts have articulated as being potentially of assistance in weighing the gravity of the harm with the utility of the defendant’s conduct. They do not make up either an exhaustive or an essential list of matters that must be expressly considered in every case.[17]

Critiques of the two-part approach

The Supreme Court of Canada has recognized that the two-part approach to the tort of private nuisance is an imperfect test, noting that "[i]t may sometimes introduce unnecessary complexity and duplication into the analysis."[18] The idea of "duplication" stems from the idea that "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."[18]

This said, the Court also recognized that this potential weakness in the test has a "practical advantage" in that "it provides a means of screening out weak claims before having to confront the more complex analysis of reasonableness."[19]

Differentiating from negligence, trespass, and the rule in Rylands v. Fletcher

In the news
Tate Modern and nuisance
In 2016, the Tate Modern was sued by the residents of the Neo Bankside flats because "visitors to the viewing gallery [of the Tate] can see straight into the living areas of their flats."[20]

This video, created by Quastels LLP featuring Daniel Blake, provides an overview of the case.[21]

Though private nuisance has certain aspects in common with negligence, trespass, and the rule in Rylands v. Fletcher, there are several distinguishing factors.[22]

While negligence focuses on the actions of the defendant, "nuisance is about the effects of the defendant’s actions and is a strict liability tort that imposes liability because of a harmful event having occurred".[22]

While trespass to land is actionable per se[23]—which is to say it is actionable without damage—nuisance requires damage.[22] As well, trespass to land entails a direct and physical encroachment onto another's property, whereas nuisance applies to indirect and unintended interference with land.[22]

The strict liability rule in Rylands v. Fletcher is more narrow in scope than nuisance. While the rule in Rylands v. Fletcher is "limited to the escape of harmful materials from a non-natural use of land"—which could also constitute nuisance—nuisance applies to a wider variety of cases.[22][14]

Discussion questions

  • Is the Coase theorem is useful framework for understanding the problem of nuisance? What real world dynamics make it more or less applicable?
  • Does the nature of the defendant's conduct matter in the tort of private nuisance? Why or why not?
  • Do you think the decision in Fearn v. Board of Trustees of the Tate Gallery[24] extended the application of nuisance too far? What do you think the appropriate remedy should be in that case?

Quiz

This quiz relates to both private and public nuisance, and it may also be found on the public nuisance page.


  1. ↑ Smith v. Inco Ltd, 2011 ONCA 628 (§21.1.6) at paras 41–42, leave to appeal to SCC refused, 2012 CanLII 22100 (SCC).
  2. ↑ St. Pierre v. Ontario (Minister of Transportation and Communications), 1987 CanLII 60 (SCC) citing Harry Street, The Law of Torts, 6th ed (London: Butterworths, 1976) at 219.
  3. ↑ Babcock, Brian (26 March 2022). "What a nuisance!". Weilers LLP.
  4. ↑ Li et al v. Barber et al, 2022 ONSC 1176 at para 1, 5.
  5. ↑ CBC News: The Nationall (7 February 2022). "Ottawa police ask for reinforcement as courts silence horns". YouTube.
  6. ↑ Smith v. Inco Ltd, 2011 ONCA 628 (§21.1.6) at para 39, leave to appeal to SCC refused, 2012 CanLII 22100 (SCC).
  7. ↑ One Minute Economics (22 December 2019). "The Coase Theorem Explained: Coasean Bargaining Definition, Conditions/Assumptions and Examples". YouTube.
  8. ↑ 8.0 8.1 Solum, L (20 February 2021). "Legal Theory Lexicon 002: The Coase Theorem". Legal Theory Lexicon.
  9. ↑ 9.0 9.1 9.2 Antrim Truck Centre Ltd v. Ontario, 2013 SCC 13 (§21.1.7) at para 19.
  10. ↑ Manitoba Law Reform Commission (2013). "The Nuisance Act and the Farm Practices Protection Act". Manitoba LRC. 126: 4 – via CanLII. (§21.1).
  11. ↑ Just Torts (14 October 2017). "Ep.06 - Private Nuisance". SoundCloud.
  12. ↑ Antrim Truck Centre Ltd v. Ontario, 2013 SCC 13 (§21.1.7) at para 22 citing St. Pierre v. Ontario (Minister of Transportation & Communications), 1987 CanLII 60 (SCC) at para 11.
  13. ↑ Antrim Truck Centre Ltd v. Ontario, 2013 SCC 13 (§21.1.7) at para 23.
  14. ↑ 14.0 14.1 Antrim Truck Centre Ltd v. Ontario, 2013 SCC 13 (§21.1.7) at para 22.
  15. ↑ Antrim Truck Centre Ltd v. Ontario, 2013 SCC 13 (§21.1.7) at para 2.
  16. ↑ 16.0 16.1 16.2 16.3 16.4 16.5 16.6 16.7 Stadnyk v. The Corporation of the City of Thunder Bay, 2023 ONSC 3920 at para 48.
  17. ↑ Antrim Truck Centre Ltd v. Ontario, 2013 SCC 13 (§21.1.7) at paras 53–54.
  18. ↑ 18.0 18.1 Antrim Truck Centre Ltd v. Ontario, 2013 SCC 13 (§21.1.7) at para 20.
  19. ↑ Antrim Truck Centre Ltd v. Ontario, 2013 SCC 13 (§21.1.7) at para 21.
  20. ↑ Fearn and others v. Board of Trustees of the Tate Gallery, [2023] UKSC 4 at paras 1–2.
  21. ↑ Quastels LLP. "What Happened In Tate Modern Vs Fearn - LAW REVIEW". YouTube.
  22. ↑ 22.0 22.1 22.2 22.3 22.4 Stadnyk v. The Corporation of the City of Thunder Bay, 2023 ONSC 3920 at para 43.
  23. ↑ Peter Ballantyne Cree Nation v. Canada (AG), 2016 SKCA 124 at para 135, leave to appeal to SCC refused, 2017 CanLII 38581 (SCC).
  24. ↑ Fearn and others v. Board of Trustees of the Tate Gallery, [2023] UKSC 4.
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