Documentation:Torts/Public nuisance

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Public nuisance

The Supreme Court of Canada has defined public nuisance as "any activity which unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience" and said that "[t]he conduct complained of must amount to … an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort and other forms of interference”.[1] However, the Supreme Court of Canada has also noted that "[t]he doctrine of public nuisance appears as a poorly understood area of the law."[2]

Public nuisance overlaps with criminal law. Professor William Prosser notes that "[a] public or 'common' nuisance is always a crime", but "it may also be a tort".[3]

Public nuisance is distinct from private nuisance in that "[p]rivate nuisance has historically been a tool for resolving private disputes about conflicting land usage."[4] Conversely, "[p]ublic nuisance has its origins in the criminal law and concerns interference with public rights, not necessarily connected with the use or enjoyment of land."[4]

Defining public nuisance

The Supreme Court of Canada has set out that determining "[w]hether or not a particular activity constitutes a public nuisance is a question of fact."[5] In making this assessment, "[m]any factors may be considered".[5] These factors, which are not a checklist[6], include:

  • "[T]he inconvenience caused by the activity"
  • "[T]he difficulty involved in lessening or avoiding the risk"
  • "[T]he utility of the activity"
  • "[T]he general practice of others"
  • "[T]he character of the neighbourhood"[5]

In 2016, the Newfoundland and Labrador Court of Appeal noted that "the cases are not consistent regarding the question of what is an adequate number [of affected individuals] to make it 'public'".[7]

An example of public nuisance may be observed in Ryan v. Victoria (City) when a "motorcyclist was injured while attempting to cross railway tracks located on an urban street in Victoria, British Columbia."[8] The Supreme Court of Canada found that the city was liable in public nuisance because the railway "tracks created an unreasonable interference with the public’s use and enjoyment of Store Street and therefore constituted a public nuisance".[9]

Origins of public nuisance

The New Zealand Court of Appeal described the origins of public nuisance saying:

Public nuisance started off life in the 12th and 13th centuries as a common law crime consisting of conduct that “obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majesty’s subjects”. It was not necessary that all of the King’s subjects be obstructed or inconvenienced. It was sufficient that some of them were. The central feature was the suffering of common injury by members of the public as the result of interference with the exercise of their rights as members of the public. Hence the terms “common nuisance” and “public nuisance” were used interchangeably.[10]

In Canada, common nuisance is still a criminal offence under the Criminal Code;[11] however, it is crucial to note that "[t]oday the tort of public nuisance has been effectively severed from its criminal origins and is developing according to its own principles as set out in the case law."[12]

Common nuisance in the Criminal Code
Criminal Code, RSC 1985, c C-46, s 180.[11]
Common nuisance

180 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction who commits a common nuisance and by doing so

(a) endangers the lives, safety or health of the public, or
(b) causes physical injury to any person.

Definition

(2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby

(a) endangers the lives, safety, health, property or comfort of the public; or
(b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.

Elements of public nuisance

In the news
Moose as a public nuisance?
A lawyer in Newfoundland attempted to "hold the province liable for moose-vehicle crashes" through a public nuisance lawsuit.[13] Ultimately, the lawyer lost both at the Supreme Court[14] and the Court of Appeal,[15] with the Court of Appeal stating that "[t]here being no unreasonable interference with public access to highways, there is no liability for the tort of public nuisance."[16]

In public nuisance suits, "[t]ypically, the plaintiff is a government entity".[17] However, "[a]n individual may bring a private action in public nuisance by pleading and proving special damage."[2]

Special damage

For an individual to succeed in a private cause of action for public nuisance, the plaintiff must "prove 'special damage' beyond that suffered by the public at large."[18]

Though the Newfoundland and Labrador Court of Appeal stated that case law is inconsistent with regards to "what constitutes 'special damage'",[7] the Court ultimately accepted that for damage to qualify as "special" it did not have to be different from the damage suffered by the general public in kind and degree.[19] Rather, the court found "that a difference in the degree of damage should be a sufficient basis for recognizing the right of an individual to sue in public nuisance."[20]

Role of fault or negligence

It is sometimes said that the nuisance torts entail strict liability. However, the Privy Council in The Wagon Mound No. 2 noted in this respect that "although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability".[21] As well, appeal courts in Canada have rejected a strict liability conception of public nuisance.[22]

Role of statutory authority

"Statutory authority provides, at best, a narrow defence to nuisance."[23] In Tock v. St John's Metropolitan Area Board, Sopinka J set out the following test to determine if the defence of statutory authority will succeed in a case of nuisance:

The defendant must negative that there are alternate methods of carrying out the work [authorized by statute]. The mere fact that one is considerably less expensive will not avail. If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance. It is insufficient for the defendant to negative negligence. The standard is a higher one.[24]

Discussion questions

  • Why do the courts require "special damage" to be proved in private actions for public nuisance?
  • What theories of tort law are reflected in the availability of public nuisance as a private action?

Quiz

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


  1. ↑ Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§21.2.1) at para 52 citing Lewis N Klar, Tort Law, 2nd ed (Scarborough, Ont: Carswell, 1996) at 525 and Gerald Henry Louis Fridman, The Law of Torts in Canada, vol I  (Toronto: Carswell, 1989) at 168.
  2. ↑ 2.0 2.1 Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§21.2.1) at para 52.
  3. ↑ Prossr, William L (October 1966). "Private Action for Public Nuisance". Virginia Law Review. 52 (6): 997.
  4. ↑ 4.0 4.1 Manitoba Law Reform Commission (2013). "The Nuisance Act and the Farm Practices Protection Act". Manitoba Law Reform Commission: 12. (§21.2).
  5. ↑ 5.0 5.1 5.2 Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§21.2.1) at para 53.
  6. ↑ George v. Newfoundland and Labrador, 2016 NLCA 24 at para 98.
  7. ↑ 7.0 7.1 George v. Newfoundland and Labrador, 2016 NLCA 24 at para 72.
  8. ↑ Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§21.2.1) at para 1.
  9. ↑ Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§21.2.1) at para 59.
  10. ↑ Smith v. Fonterra Co-operative Group Ltd, [2021] NZCA 552 at para 42.
  11. ↑ 11.0 11.1 Criminal Code, RSC 1985, c C-46, s 180 (§21.2.4).
  12. ↑ George v. Newfoundland and Labrador, 2016 NLCA 24 at para 69.
  13. ↑ Canadian Press (22 September 2014). "Lawyer who blames government for moose crashes in Newfoundland will appeal dismissal of class action suit". National Post.
  14. ↑ George v. Newfoundland and Labrador, 2013 CanLII 80917 (NLSC).
  15. ↑ George v. Newfoundland and Labrador, 2016 NLCA 24.
  16. ↑ George v. Newfoundland and Labrador, 2016 NLCA 24 at para 110.
  17. ↑ Williams, Patrick (17 November 2022). "BC Court of Appeal puts end to public nuisance claims in product liability". McCarthy Tetrault.
  18. ↑ George v. Newfoundland and Labrador, 2016 NLCA 24 at para 111.
  19. ↑ George v. Newfoundland and Labrador, 2016 NLCA 24 at paras 113–15.
  20. ↑ George v. Newfoundland and Labrador, 2016 NLCA 24 at para 115.
  21. ↑ Overseas Tankship v. The Miller Steamship, [1966] UKPC 10 (BAILII) (§21.2.2) at 6 [The Wagon Mound No 2].
  22. ↑ George v. Newfoundland and Labrador, 2016 NLCA 24 at para 111 citing Assie v. Saskatchewan Telecommunications, 1978 CanLII 1811 (SKCA).
  23. ↑ Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§21.2.1) at para 54.
  24. ↑ Tock v. St John's Metropolitan Area Board, 1989 CanLII 15 (SCC).
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