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Simon Shields, Lawyer

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Torts - Nuisance

1317424 Ontario Inc., v. Chrysler Canada Inc. (Ont CA, 2015)

In this case the Court of Appeal upheld a lower court ruling that a claim based in nuisance emanating from the land of the plaintiff was untenable in law. Here the defendant sold the plaintiff land that the plaintiff alleged had not been properly decontaminated. The court cited this Nova Scotia case with (apparent) approval:
[5] The issue of whether a nuisance must emanate from another’s land was recently specifically addressed by the Nova Scotia Court of Appeal in W. Eric Whebby Ltd. v. Doug Boehner Trucking & Excavation Ltd., 2007 NSCA 92 (CanLII), 258 N.S.R. (2d) 41.

[6] In Whebby, at para. 128, Cromwell J.A. (as he then was) stated that regardless of who causes the nuisance, the interference with the plaintiff’s land must be indirect and not direct, meaning it must originate elsewhere than on the plaintiff’s land. He explained, at para. 131, that this distinction is not a mere legal technicality, but that it reflects
the role of the modern law of nuisance as a means of reconciling conflicting interests in connection with competing uses of land: see Royal Anne Hotel [Co. v. Ashcroft, [1979] 2 W.W.R. 462 (B.C.C.A).] at 467; Tock v St. John’s Metropolitan Area Board, 1989 CanLII 14 (SCC), [1989] 2 S.C.R. 1180 per LaForest, J. at 1196. Before there can be conflicting interests in connection with the use of land, there must be uses of different lands which come into conflict.

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