Nuisance

Contents:

General Principles

Sic utera tuo ut alienam non laedas said the Romans: use your property in such a fashion so as to not disturb your neighbours.

Doing otherwise constitutes nuisance under tort law.

Nuisance is divided into public nuisances and private nuisances depending on the extent of the harm or annoyance.

If the harm or annoyance is suffered by one or a particular group of people, it is a private nuisance.

Public nuisances are those suffered by citizens generally or by a "substantial" number of members of the public. Hence, a public nuisance is really just a multiplication of private nuisances.

As Justice Linden points out in Canadian Tort Law (1993, 5th Edition, page 505):

"Most of the litigation about public nuisance is conducted in criminal court or by public officials, such as the attorney-general, as representative of the common good."

Where a nuisance is "public", civil litigation may be the exclusive right of the government represented by the attorney-general (check your jurisdiction's statutes on this).

If the attorney-general declines to sue for public nuisance, there may be no cause of action for the private citizen except for "special damages": distinct damages to an individual's property over and above the general suffering to the population at-large.

Most cases of private nuisance involve land.

For example, the Canadian Encyclopedia Digest (Western) at, page 95-443 states that:

"... the essence of the tort of private nuisance is that the defendant has unreasonably and substantially interfered with the plaintiff's reasonable use and enjoyment of his land."

Some common examples are the malfunctioning of sewage systems, highway noise or vibration.

The word unreasonably is very important in the above description. A court would assess the reasonableness of any nuisance based on what would be tolerated by the ordinary occupier. The standard is the ordinary man, which means that abnormal sensitivities may prevent a claim if the nuisance would not have otherwise unreasonably interfered with an ordinary occupier. Nor would it be necessary to prove fault on the part of the defendant (nuisance is not a branch of the law of negligence).

The court will weigh the inconvenience to the plaintiff against the usefulness of the defendant's conduct under the circumstances.

The tort action of nuisance will not address trivial inconveniences.

The interference must be substantial. It is not always easy for the courts to determine whether the interference complained of is substantial or not. For example, the building of a hospital next to a person's land was held not to be a nuisance. The same conclusion was made for the building of a highway next to property or the erection of a house which blocked a view.

However, courts have found dust from a sawmill, noise from a racetrack or even funeral parlours as nuisances to neighbours.

If the damages are tangible or a material injury to property, this helps a plaintiff's case.

The circumstances are of invaluable assistance also. For example, the dust from a saw-mill would be less tolerable in a residential district than in a industrial park. Also, a single incident of unreasonable interference will suffice, as Canada's Supreme Court decided in Tock v. St. John's Metropolitan Area Board in 1989.

Any occupier may sue for nuisance; not just landlords, but tenants as well.

Defences

Nuisance is a peculiar tort as it is one of strict liability. This means that once the damages and causation have been proven, it is no defence to argue that you'd taken all reasonable precautions.

If a nuisance has been caused on the basis of legislative authority, there is no liability. Canadian courts have been reluctant to excuse defendants on this basis and if a court can conclude that the legislative mandate could have been exercised without the nuisance, it will impose liability.

In Tock v. St. John's, Justice Wilson wrote that the language of the legislation is all-important. If the language imposes a duty on a government agency to do something ("mandatory") and the nuisance is the inevitable consequence of the exercise of that statutory duty, then no action for nuisance lies. BUT if the legislation is permissive in that it gives the public authority a discretion|:

"... not only whether to do the thing authorized, but how to do it and in what location, then if it does do the thing authorized, it must do it in a manner and at a location which will avoid the creation of a nuisance."

See also Government Liability in Canada.

Moreover, a defendant cannot argue that a certain interference was in fact for the public good; it must have legislative authority for it to benefit from this defence.

Two other defences, closely related, are:

(1) where a statute provides that nuisances continuously committed for a certain period of time (eg. 20 years) attain "prescriptive rights"; and

(2) where the plaintiff agreed, implicitly or explicitly, to the nuisance.

Remedies

The normal remedy for a nuisance is an injunction, which is an order of the court to the defendant to cease and desist certain conduct or to do something specific.

Nuisance may also give rise to damages where, in the words of Shelfer v. London Electric Lighting Co.:

  1. The injury to the plaintiff's legal rights is small;
  2. And is one which is capable of being estimated in money;
  3. And is one which can be adequately compensated by a small money payment; and
  4. It would be oppressive to the defendant to grant and injunction.

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Published: Friday, October 20, 2006
Last updated: Thursday, July 26, 2012
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