Private Nuisance
Private nuisance is an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it. It is a tort that protects the plaintiff's interest in the comfortable and convenient enjoyment of their land.
Elements of Private Nuisance
To establish private nuisance, the plaintiff must prove:
- Interference with use and enjoyment: The defendant's activity must interfere with the plaintiff's ordinary use and enjoyment of land — including physical damage to the land, sensory interference (noise, smell, vibration), or interference with easements and other rights appurtenant.
- Substantial interference: The interference must be more than trivial. Temporary inconveniences do not constitute nuisance. The court assesses the degree of interference from the perspective of an ordinary person with ordinary sensibilities.
- Unreasonable interference: The interference must be unreasonable in the circumstances. Courts balance the gravity of the interference against the utility of the defendant's conduct, the character of the neighbourhood, and the nature of the plaintiff's use.
- Proprietary or possessory interest: The plaintiff must have a right to exclusive possession of the affected land. Tenants in possession, licensees with exclusive possession, and owners all qualify; family members without a possessory interest generally do not.
The Unreasonableness Standard
The central question in private nuisance is whether the interference is unreasonable. This is an objective standard assessed in the context of the neighbourhood. The character of the neighbourhood is highly relevant: a level of noise or smell tolerable in an industrial district may be unreasonable in a residential neighbourhood.
The fact that the defendant's activity is conducted without negligence is not a complete defence. Nuisance may be actionable even where the defendant takes all reasonable precautions, if the activity itself unreasonably interferes with the plaintiff's enjoyment.
Coming to the Nuisance
The "coming to the nuisance" defence — that the plaintiff moved to an area where the nuisance already existed — is not a complete defence in Canadian law. The fact that the plaintiff purchased land knowing of an existing nuisance reduces the weight of their complaint but does not extinguish the right to sue. The proper remedy in such cases may be damages in lieu of an injunction rather than full injunctive relief.
Sensitive Plaintiffs
The "sensitive plaintiff" problem arises where the plaintiff's use of land is exceptionally sensitive — such as growing orchids that require unusual conditions. The standard is the ordinary use of land; a defendant is not liable for interference with an unusually sensitive use unless the same activity would also interfere with an ordinary use.
Public Nuisance
Public nuisance is an act or omission that materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. It is primarily a criminal offence under the Criminal Code, s.180, but a private plaintiff can bring a civil action for public nuisance where they have suffered special damage — damage over and above that suffered by the general public.
Examples of public nuisance include: obstruction of public highways, pollution of public waterways, creation of dangerous conditions on public land, and operation of a common bawdy house. Ontario municipalities may sue for public nuisance affecting public infrastructure without needing to prove special damage, as they represent the affected community.
The Rule in Rylands v Fletcher
In Rylands v Fletcher (1868) LR 3 HL 330, the House of Lords established a rule of strict liability for the escape of dangerous things brought onto land. The rule, as stated by Blackburn J and confirmed on appeal, is:
A person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the natural consequences of its escape.
Elements of Rylands v Fletcher
- Accumulation of a dangerous thing: The defendant must bring onto their land something with potential to cause harm if it escapes — water, chemicals, fire, animals, explosives.
- Non-natural use of the land: The accumulation must constitute a non-natural use — something beyond the ordinary use of land in the circumstances. Domestic water storage is natural use; industrial reservoirs or chemical storage are non-natural. Courts consider the purpose, quantity, and context of the accumulation.
- Escape: The dangerous thing must escape from the land where it was accumulated onto land of another or into a public place.
- Damage: The escape must cause damage to the plaintiff.
Defences to Rylands v Fletcher
- Act of God — an extraordinary natural event that could not be reasonably anticipated;
- Act of a stranger — a third party who the defendant had no reason to foresee or guard against caused the escape;
- Consent of the plaintiff — where the plaintiff benefited from the accumulation;
- Statutory authority — where the activity is authorized by statute and the escape was inevitable.
Remedies for Nuisance
Injunctions
An injunction is the primary equitable remedy for nuisance. A plaintiff entitled to nuisance relief may seek a permanent injunction requiring the defendant to cease or modify the offending activity. Interlocutory injunctions may be sought pending trial on the balance of convenience and irreparable harm tests fromRJR-MacDonald Inc v Canada (Attorney General) [1994] 1 SCR 311.
Courts have jurisdiction to award damages in lieu of an injunction under equitable jurisdiction (formerly the Chancery Amendment Act) where:
- The injury is small and capable of being estimated in money;
- An injunction would be oppressive to the defendant; or
- The public interest would be seriously harmed by the injunction.
Damages
Damages for nuisance compensate for:
- Diminution in the amenity value and capital value of the plaintiff's land;
- Loss of use and enjoyment;
- Physical damage to the property or crops;
- Personal injury and property damage caused by the escape of a dangerous thing under Rylands v Fletcher.
General damages for loss of amenity and interference with enjoyment are assessed objectively; they do not require proof of mental distress. Consequential losses — lost profits from business on the land, additional costs incurred — may be recoverable where reasonably foreseeable.
Ontario Nuisance: Neighbour Disputes
The most common private nuisance claims in Ontario involve:
- Tree encroachment: Overhanging branches and encroaching roots constitute a nuisance; the affected neighbour may cut branches and roots to the property line without consent. Significant damage from a neighbour's diseased tree may found a nuisance or negligence claim.
- Noise: Persistent, unreasonable noise from a residential or commercial property — music, machinery, animal noise — may constitute nuisance. Ontario's Environmental Protection Act prohibits discharging sound that causes or is likely to cause an adverse effect.
- Light and air: There is no common law right to light or air over a neighbour's land in Ontario (no easement by prescription for light in Canada), but interference with a prescriptive right or easement specifically granted may found an action.
- Water: The escape of surface water, flooding from inadequate drainage, or pollution of shared water courses may found claims in nuisance, Rylands v Fletcher, or negligence.
Practice Points for Ontario Property and Litigation Lawyers
- Determine whether the client has a possessory interest in the affected land — family members and guests without a right to exclusive possession cannot sue in private nuisance.
- Gather evidence of the duration, frequency, and severity of the interference before issuing proceedings — nuisance requires substantial and unreasonable interference, not a one-time incident.
- Assess the character of the neighbourhood when evaluating the unreasonableness standard — interference tolerable in an industrial area may be actionable in a residential area.
- For Rylands v Fletcher claims, identify whether the defendant's accumulation constitutes a non-natural use of land given the location, quantity, and purpose.
- When seeking an injunction, consider whether damages in lieu may be the court's preferred remedy — particularly where the defendant's activity has significant public benefit or economic value.
- The two-year limitation period under the Limitations Act, 2002runs from when the plaintiff knew or ought to have known of the nuisance and the identity of the defendant. Continuing nuisances may give rise to fresh causes of action with each recurrence.