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Nuisance II

. 1386444 Ontario Inc. v. 2331738 Ontario Ltd. (Century Cabinet Doors Inc.)

In 1386444 Ontario Inc. v. 2331738 Ontario Ltd. (Century Cabinet Doors Inc.) (Ont CA, 2022) the Court of Appeal considered the nuisance defence of 'statutory authority':
(4) The defence of statutory authority

[17] The appellants rely on the defence of “statutory authority”. They contend that because the condominium was in an area zoned for both commercial and industrial uses, its use for industrial or manufacturing purposes was unconstrained and was beyond the reach of the law of nuisance.

[18] The appellants’ reliance on statutory authority is misplaced – the creation of the nuisance was not the “inevitable result” of the permitted operation of an industrial business. The zoning by-law, which permitted both industrial and commercial uses, did not expressly or impliedly authorize the creation of a nuisance: see e.g., Sutherland v. Canada (Attorney General), 2002 BCCA 416, 215 D.L.R. (4th) 1, at paras. 63-70, leave to appeal refused, [2002] S.C.C.A. No. 385. While the by-law permitted industrial uses, it did not authorize any or every industrial user to commit a nuisance in the operation of the business it was permitted to operate. The point is obvious, and we reject the appellants’ submissions that the Application Judge’s reasons were deficient because they failed to address it.
. Krieser v. Garber

In Krieser v. Garber (Ont CA, 2020) the Court of Appeal set out a number of issues regarding private nuisance, including remedy [paras 73-75]:
[18] In his reasons, he began by articulating the test for nuisance. He explained that nuisance is the interference with the use or enjoyment of land and that, in nuisance, the focus is on the harm suffered rather than fault or the nature of the conduct giving rise to the harm: St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64 (CanLII), [2008] 3 S.C.R. 392, at para. 77.

[19] To establish a claim in private nuisance, the interference with the owner’s use or enjoyment of the land must be both substantial and unreasonable: Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, at para. 19.

[20] The trial judge noted that the phrase ‘substantial’ has been interpreted in the negative to mean something other than minimal such that “compensation will not be awarded for trivial annoyances,” quoting St. Lawrence Cement, at para. 77. He observed that “this test applies whether the nuisance is physical injury to land or an interference with the amenities of the land,” citing Antrim, at para. 23.

[21] As for the reasonableness criterion, the trial judge noted that “the courts assess, in broad terms, whether the interference is unreasonable by balancing the gravity of the harm against the utility of the defendant’s conduct in all of the circumstances”: Antrim, at para. 26. The trial judge also noted that “the severity of the interference and the character of the neighbourhood are important factors in assessing the gravity of the harm,” citing Tock v. St. John’s Metropolitan Area Board, [1987] 2 S.C.R. 1181, at p. 1191.

[22] Citing Antrim, at para. 38, the trial judge observed that while the acts of a public authority will generally be of significant utility, “acts that interfere with one person’s property for the private good of another person’s property will have a more difficult time establishing their ‘utility’ as understood in the law of nuisance.”

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[27] The appellants concede that the trial judge correctly articulated the test for nuisance. ...

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[29] Turning to the appellants’ first argument, in nuisance, unlike in negligence, the focus is generally on the harm suffered rather than fault or the nature of the conduct giving rise to the harm. At paras. 28-29 of Antrim, Cromwell J. wrote this:
Generally, the focus in nuisance is on whether the interference suffered by the claimant is unreasonable, not on whether the nature of the defendant’s conduct is unreasonable.

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The nature of the defendant’s conduct is not, however, an irrelevant consideration. Where the conduct is either malicious or careless, that will be a significant factor in the reasonableness analysis. [Emphasis in original.]
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[37] I reject the appellants’ argument that the trial judge erred in his reasonableness analysis by failing to balance the harm to Krieser against the increased utility of the Garber dock to Garber as built.

[38] Antrim, at para. 2, explains that “the reasonableness of the interference must be determined by balancing the competing interests”. As to how that balancing exercise should be carried out, Cromwell J. wrote, at para 25, that “…the reasonableness of the interference must be assessed in light of all of the relevant circumstances.”

[39] The court is neither bound nor limited by any specific list of factors when considering the reasonableness of an interference, but “should consider the substance of the balancing exercise in light of the factors relevant in the particular case”: Antrim, at para 26. The court will sometimes readily conclude that an interference is unreasonable without having to engage in a lengthy balancing exercise: Antrim, at para. 50.

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[73] Injunctive relief is the “ordinary remedy” for a nuisance: see Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (2019-Rel. 28), (Toronto: Thomson Reuters Canada Ltd., 2019), para. 4.60. Typically, damages are awarded in lieu of an injunction only where the injury to the plaintiff’s legal rights (1) is small, (2) is capable of being estimated in money, and (3) can adequately be compensated by a small money payment; and where it would be oppressive to the defendant to grant an injunction: Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287 (C.A.).

[74] However, mandatory injunctions—which require the defendant not merely to cease some act but take positive action—raise special concerns. Requiring the defendant to take positive acts, as Sharpe explains, (1) changes the balance of burden and benefits as between the parties and (2) raises issues concerning the court’s reluctance to become involved in ongoing supervision of complex obligations: see Injunctions and Specific Performance, paras. 1.500-1.520.

[75] The trial judge acknowledged that mandatory injunctions are to be used sparingly. He considered the test set out in Shelfer and noted that the defendant bears the burden of establishing the conditions to award monetary compensation instead of an injunction. He observed that the court should not adopt a position that effectively permits the defendant to purchase a license to interfere with the plaintiff’s property rights. Citing Carley v. Willow Park Gold Course Ltd., 2002 ABQB 813, 325 A.R. 27, he remarked that courts have found it appropriate to issue an injunction or affirmative order where “a defendant has acted in reckless disregard of the plaintiff’s rights or has through his or her conduct indicated an unwillingness to abate the nuisance”.


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