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Torts - Public Nuisance. Li v. Barber
In Li v. Barber (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action appeal from an interlocutory pre-certification order that dismissed the defendant's CJA 137.1 SLAPP motion, here where plaintiff Ottawa neighbours sued for private and public nuisance for trucker's protest activities.
Here the court considered an earlier interlocutory decision in the proceeding on the rarely-used tort of public nuisance:[84] At paras. 31-32 of his January 24, 2023 reasons on the appellants’ r. 21 motion to strike, the motion judge considered the nature of the special damages that an individual must prove to support a public nuisance claim:Tort liability for public nuisance is slightly more complicated. Public nuisance exists where there is unreasonable interference with a public right such as the right to use the roads or sidewalks of the city. But to sue privately for public nuisance (without the approval of the Attorney General) requires the plaintiff to demonstrate particular loss or damage not suffered by the community at large. In this case, the plaintiffs assert that those who live and work in the “occupation zone” were particularly impacted by the continuous interference with their rights of passage and rights of ingress and egress to their residences or businesses. It is not certain that the action will succeed or that it can be certified as a class proceeding, but again, on the facts as pleaded, this is a plausible cause of action. Substantial economic loss and substantial inconvenience have been recognized as special damage in this context. [Emphasis added; footnotes omitted.] [85] The appellants did not appeal the r. 21 decision of the motion judge.
[86] The motion judge’s r. 21 decision reflects a movement in the public nuisance jurisprudence away from the view expressed many years ago by the single judge in Stein v. Gonzales (1984), 1984 CanLII 344 (BC SC), 14 D.L.R. (4th) 263 (B.C. S.C.), that special damages required plaintiffs to show that they suffered a different type of loss than the public, to one where special damages could include circumstances where the plaintiff suffered more severe damage than the public generally: see the discussion of the jurisprudence in O’Connor v Canadian Pacific Railway Limited, 2023 BCSC 1371, at paras. 150 to 170 (Emphasis added).
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