|
Torts - Public Nuisance. Price v. Smith & Wesson Corporation
In Price v. Smith & Wesson Corporation (Ont CA, 2025) the Ontario Court of Appeal dismissed public nuisance as a here-novel cause of action, this in a class action certification appeal:[82] .... Public nuisance claims are rooted in the denial of the public’s right to enjoy public areas. As the motion judge correctly noted, a public nuisance is an activity that “unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience”: Ryan v. Victoria, 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at para. 52, quoting Lewis N. Klar, Tort Law, 2nd ed. (Scarborough, Ont.: Carswell, 1996), at p. 525.
[83] The motion judge referred to a text which explains that public nuisance includes two broad categories: (i) interference with the rights of the public which everybody shares, such as blocking access to a public park, protest marches, or polluting the air; and (ii) widespread interference with the use and enjoyment of private land: Philip H. Osborne, The Law of Torts, 4th ed. (Toronto: Irwin Law Inc., 2011), at pp. 397-98.
[84] The motion judge correctly held that it was plain and obvious that selling firearms—even firearms without authorized user technology—does not sound in public nuisance. Firearm manufacturing is regulated in Ontario and is a permitted activity. There is a difference between manufacturing firearms, which cannot be seen as public nuisance, and the actions of people who misuse the guns, which could constitute public nuisance. It is one thing to impose negligence-based liability on gun manufacturers for the reasonably foreseeable consequences of third parties’ use of firearms. It is quite another to impose liability in public nuisance, which does not inquire into foreseeability, proximity, or whether the defendant breached an applicable standard of care. Doing so, the motion judge rightly held, would radically transform the law governing liability for negligent manufacturing, not incrementally develop it. The motion judge made no error in striking the public nuisance claim. . 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).
|
