Back

The Law of Nuisance

February 19, 2022

Ontario

,

Canada

Issue

What remedies, for example nuisance or others, have commercial tenants sought for allegedly damaging behaviours by their neighbouring tenants?

Conclusion

In Northern Light Arabians v Sapergia, 2011 SKPC 151 (CanLII), the plaintiffs operated a ranch adjacent to the defendant's ranch. Both parties owned horses. The defendant's property was not fenced and his horses would enter the plaintiffs' property and cause problems. The plaintiffs asked the defendant to erect a fence to control the horses, but he refused. The plaintiffs claimed that his refusal had unreasonably interfered with their use and enjoyment of their property by causing distress to them, their horses, and the clients of their business ventures, as well as producing significant interpersonal conflict between the parties. The plaintiffs sued the defendant in nuisance and sought $5,000 in damages plus a mandatory injunction to compel the defendant to erect a fence. In the result, the Court awarded the plaintiffs judgment in the amount of $2,500 (approximately $3,100 in 2022 dollars) plus costs of $50 and interest.

No further cases were located where a business sued a neighbouring business for damages arising from disturbances caused by how the neighbour operated its business. Some guidance may be gleaned, however, from cases discussing principles relating to the tort of nuisance.

The law of nuisance can be challenging to define, but can be summarized as the unreasonable interference with a person's enjoyment of his or her land or physical damage to that land. (Desando v. Canadian Transit Company, Milne v. Saltspring Island Rod and Gun Club)

Nuisance consists of an interference with the claimant’s use or enjoyment of land that is both substantial and unreasonable. "Unreasonableness" in nuisance relates primarily to the character and extent of the harm caused rather than that threatened. (Antrim Truck Centre Ltd. v. Ontario (Transportation), [2013] 1 SCR 594)

An analysis of unreasonable interference must be conducted by considering the following four factors: (1) severity of the interference; (2) character of the neighbourhood; (3) utility of defendant’s conduct and (4) sensitivity of the plaintiff. (Fiuza v Creekside Real Estate Group Inc.)

It should be noted that a landlord will generally not be liable for a neighbour's behaviour in nuisance except in the following circumstances: "if he permits the creation of a nuisance in the tenancy agreement, or if the landlord continues to exercise a degree of control over the premises leased, such that a failure to abate the tenants’ nuisance was unreasonable. A landlord may be liable in situations where he leases property and the intended use conflicts with the neighbours, or is likely to cause a disturbance, such as a night club in a residential area or an asphalt plant in a subdivision." (Fiuza v Creekside Real Estate Group Inc.)

In assessing the reasonableness of the conduct, the standard of comfort to be expected in a predominantly residential area differs from that of an industrial or commercial one. (Angerer v. Cuthbert)

At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct. Nuisance is defined as unreasonable interference with the use of land. Whether the interference results from intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as a nuisance. The interference must be intolerable to an ordinary person. This is assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff's use and the utility of the activity. The interference must be substantial, which means that compensation will not be awarded for trivial annoyances. (St. Lawrence Cement Inc. v. Barrette)

Law

In Northern Light Arabians v Sapergia, 2011 SKPC 151 (CanLII), the plaintiffs operated a ranch adjacent to the defendant's ranch. Both parties owned horses. The defendant's property was not fenced and his horses would enter the plaintiffs' property and cause problems. The plaintiffs asked the defendant to erect a fence to control the horses, but he refused. The plaintiffs claimed that his refusal had unreasonably interfered with their use and enjoyment of their property by causing distress to them, their horses, and the clients of their business ventures, as well as producing significant interpersonal conflict between the parties. The plaintiffs sued the defendant in nuisance and sought $5,000 in damages plus a mandatory injunction to compel the defendant to erect a fence. In awarding the plaintiffs judgment in the amount of $2,500 (approximately $3,100 in 2022 dollars) plus costs of $50 and interest:

[17] The interference complained of in this case is something which can best be described as a long-lasting, moderate intensity annoyance. Elizabeth Hora detailed the nature of the annoyance in her testimony. I found Ms. Hora to be a credible and reliable witness, and I accept her testimony.

[18] Ms. Hora said that, over the years the Plaintiffs have had their ranch next to the Defendant, there have been a number of occasions when the Defendant’s horses entered the Plaintiffs’ yard and ate at their hay stack. Most of these occasions occurred in winters past, however. This has not occurred recently.

[19] In addition to that, the Defendant’s horses have frequently grazed on the Plaintiffs’ side of the road allowance, between the roadway and the Plaintiffs’ fence. She says this is significant because the Plaintiffs take the position that they should be entitled to cut and use this hay for their own horses.

[20] The frequent presence of the Defendant’s horses in the road allowance has caused other problems for the Plaintiffs and their horses. Ms. Hora noted that the unnecessarily close proximity of the Defendant’s horses in the road allowance has at times led to conflict and stress for the Plaintiffs’ horses. Employees of the Plaintiffs, such as Trina Martens, also encountered inconvenience and had to exercise extra precautions when working with horses on the Plaintiffs’ property.

[21] Ms. Hora says that the Plaintiffs have also had to take extra precautions with their riding students, to guard against unexpectedly encountering the Defendant’s horses (the potential problem being that the student’s horse could be spooked and either rear up or gallop off, which would be dangerous for an inexperienced rider). This was corroborated by the testimony of Andrea Hart. The extra precautions included altering lessons, changing routes, and having to be extra vigilant. While I expect that any responsible riding instructor would be alive to the possibility of unexpected encounters with other horses or animals, and would take appropriate measures to ensure safety, it is clear that the Defendant’s refusal to fence the last portion of his pasture in this case meant that the possibility of unwanted and unexpected encounters with his horses was significantly increased, requiring extra precautions that were time consuming, and which affected the quality of the riding instruction provided to the Plaintiffs’ students.

[22] There have also been incidents where the Defendant’s horses entered the Plaintiffs’ yard, causing significant distress to the Plaintiffs’ horses. Those occasions include the incident in 2000 where one of the Plaintiffs’ mares suffered a broken fetlock, and the incident in October 2010 where the Plaintiffs were required to impound the Defendant’s horses. This latter incident not only caused stress to the Plaintiffs’ horses, but considerable stress to the Plaintiffs and the assisted-living residents they care for. Because of such incidents, and the frequent presence of the Defendant’s horses in the road allowance, the Plaintiffs have also had to “lock down” their yard, for fear of the Defendant’s horses entering it unexpectedly. They have had to erect a gate on their premises to keep the Defendant’s horses out, and have had to restrict the freedom and travel about the property of their assisted-living residents. These measures would not be necessary if the Defendant would fence his side of the property.

[23] Furthermore, the frequent presence of the Defendant’s horses on the road has created inconvenience for clients of the Plaintiffs’ business, and, according to Ms. Hora, has been potentially damaging to the image of the Plaintiffs’ business. This is so, she says, not only because the Defendant’s horses impede access to the Plaintiffs’ yard, but also because the Defendant’s horses are not of the same quality as those of the Plaintiffs, and their presence may reflect negatively on the quality of the Plaintiffs’ stock, making them less desirable to potential breeding clients.

[24] Ms. Hora also testified that the Plaintiffs have not been able to construct a riding arena in the preferred area of their property, as that area is in close proximity to the edge of the property near the road allowance, and the potential for close contact with the Defendant’s horses is too great.

[25] This dispute has also sparked confrontations between Ms. Hora and the Defendant, including times when the Defendant has scared her by driving close to her with his vehicle, or has made threatening comments.

[26] The Defendant, Mr. Sapergia, said that he does not allow his horses to run at large. The last portion of the road allowance has never been fenced, he said, and his horses have always grazed the area covered by the road allowance. Mr. Sapergia said that the only occasions on which his horses entered the Plaintiffs’ yard were those occasions when he was away working, and his horses broke out of the fenced enclosure on his property. He also said that he only grazes his horses in the road allowance when they are under his supervision. While he may feel that is the case, it is clear to me that while his horses graze the road allowance, he does not provide a level of supervision and control of the horses that is sufficient to prevent them from becoming a problem to the Plaintiffs.

[27] Rather than erecting a proper fence on his side of the road allowance, the Defendant has erected a makeshift ‘hot-wire’ fence across the road allowance, beginning just west of his yard. While this has kept the Defendant’s horses out of the Plaintiffs’ yard, and out of the more easterly portion of the road allowance, it has impeded the Plaintiffs’ access to the western portion of the road allowance, creating inconvenience for anyone attending the Plaintiffs’ yard. The R.M. of Hillsborough did not authorize the Defendant to put a fence across the road allowance. In fact, the R.M. advised the Defendant to remove it, but took no further enforcement action. Ms. Hora says the presence of this fence has also required the Plaintiffs to move their feed yard because it made delivery of feed to the prior location much more difficult.

[28] It should be noted that, while Ms. Hora said in direct examination that such problems had been continuous over the past 7 - 8 years, and had increased in frequency in the last two, she acknowledged in cross-examination that there have only been two occasions since October of 2010 when she has noticed the Defendant’s horses on the road allowance, and since that time the Defendant’s horses have not been on the Plaintiffs’ property.

[29] Individual instancs of horses getting out into the road allowance, onto the road, or encroaching onto the Plaintiffs’ property would not necessarily amount to nuisance. However, in this case, the problem has persisted for more than two decades. It has been punctuated with instances of conflict; some minor, and some not so minor. At the heart of the conflict lies Mr. Sapergia’s refusal to properly fence the last portion of pasture on his side of the road allowance. Rather than take that rather obvious step to alleviate the problem, Mr. Sapergia has chosen to do what he can to frustrate the Plaintiffs and treat the road allowance in question as his own personal property. When considered individually, the effect of each incident complained of is not terribly significant. When considered cumulatively, the effect is much more substantial.

[...]

[38] Taking all of those factors into account, I am satisfied on a balance of probabilities that the use of the land by the Defendant amounts to a substantial and unreasonable interference with the Plaintiffs’ use and enjoyment of their property. Not every individual incident has been significant. However, the problem has persisted for so long that the cumulative effect has become substantial. Moreover, the Defendant has been aware of the problem, and the easy way in which it could be rectified (i.e. erecting a proper fence on his side of the road allowance) for nearly as long as the problem has existed. Despite having that knowledge, the Defendant has refused to take that step. He has chosen, instead, to take steps to torment and frustrate the Plaintiffs. The only fence he has put in place is one that is not authorized by the R.M., and improperly impedes access to property that is not his. The Defendant’s actions have clearly interfered with the Plaintiffs’ use and enjoyment of their property, and in light of the glaringly obvious solution to the problem, that interference is clearly unreasonable.

No further cases were located where a business sued a neighbouring business for damages arising from disturbances caused by how the neighbour operated its business. Some guidance may be gleaned, however, from cases discussing principles relating to the tort of nuisance.

As noted in Desando v. Canadian Transit Company, 2018 ONSC 1859 (CanLII), the law of nuisance can be challenging to define:

[27] In the Law of Torts in Canada, 3d ed (Toronto: Carswell, 2010) by Gerald H.L. Fridman, Professor Fridman outlines the challenges courts are presented when “[t]he impossibility of providing a definition of nuisance for legal purposes has frequently been stated. Nuisance is a vague doctrine, very difficult to define accurately.”

[28] In Canadian Tort Law: Cases, Notes and Materials, 14th ed (Markham: LexisNexis Canada, 2014) by The Hon. Allen M. Linden, Lewis N. Klar, and Bruce Feldthusen, the authors open with an encapsulation:

Nuisance is a field of liability that describes a type of harm suffered by the plaintiff, rather than a type of objectionable conduct engaged in by the defendant. Public nuisance deals with the use and enjoyment of the general public’s right to use and enjoy public areas such as rights of way. A private nuisance is a substantial interference with an occupier’s use and enjoyment of land, an interference which is unreasonable in the circumstances. The “substantial” requirement eliminates consideration of trivial interferences. The “unreasonable” requirement is determined by a balancing exercise that considers factors such as the severity of the interference, the duration, the character of the neighbourhood, the sensitivity of the plaintiff and the utility of the defendant’s conduct. . . . In the absence of physical damage, the so-called loss of amenity cases, the balancing exercise may be detailed and difficult.

However, in Milne v. Saltspring Island Rod and Gun Club, 2014 BCSC 1088 (CanLII), the Court defined nuisance as the unreasonable interference with a person's enjoyment of his or her land or physical damage to that land and provided the following commentary regarding the concept of reasonableness in cases of nuisance:

[42] The legal principles of nuisance are well established and uncontroversial. Nuisance is the unreasonable interference with a person's enjoyment of his or her land or physical damage to that land. Some judgments and texts refer to a requirement of the interference being serious, but logically that can be subsumed in the "unreasonable" analysis.

[43] The difficulty in nuisance cases is applying the concept of reasonableness. Determining whether something is a nuisance always involves balancing the interests between the parties. The principle is stated succinctly in Clerk & Lindsell on Torts, 20th ed. (London: Thomson Reuters (Legal), 2010) at para. 20–10:

Question of degree In nuisance of the third kind, "the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves", there is no absolute standard to be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The acts complained of as constituting the nuisance, such as noise, smells or vibration, will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as the time, place, extent or the manner of performance. In organised society everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours. Ordinary domestic use of premises therefore cannot constitute a nuisance, even though interference with the enjoy­ment of neighbouring premises is caused, if that interference results solely from construction defects for which the defendant is not responsible. In attempting to fix the general standard of tolerance the vague maximsic utere tuo ut alienum non laedas has been constantly invoked. But the maxim is of no use in deciding what is the permissible limit in inconvenience and annoyance between neigh­bours, and the courts in deciding whether an interference can amount to an actionable nuisance have to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property. No precise or universal formula is possible, but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society.

In Antrim Truck Centre Ltd. v. Ontario (Transportation), [2013] 1 SCR 594, 2013 SCC 13 (CanLII), the Supreme Court of Canada defined nuisance as follows:

[29] 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: see, e.g., Linden and Feldthusen, at pp. 590-91; Fleming, at s. 21.110; Murphy and Witting, at p. 439. Moreover, where the defendant can establish that his or her conduct was reasonable, that can be a relevant consideration, particularly in cases where a claim is brought against a public authority. A finding of reasonable conduct will not, however, necessarily preclude a finding of liability. The editors of Fleming’s The Law of Torts put this point well at s. 21.120:

. . . unreasonableness in nuisance relates primarily to the character and extent of the harm caused rather than that threatened. . . . [T]he “duty” not to expose one’s neighbours to a nuisance is not necessarily discharged by exercising reasonable care or even all possible care. In that sense, therefore, liability is strict. At the same time, evidence that the defendant has taken all possible precaution to avoid harm is not immaterial, because it has a bearing on whether he subjected the plaintiff to an unreasonable interference, and is decisive in those cases where the offensive activity is carried on under statutory authority. . . . [I]n nuisance it is up to the defendant to exculpate himself, once a prima facie infringement has been established, for example, by proving that his own use was “natural” and not unreasonable. [Emphasis added.]

In Fiuza v Creekside Real Estate Group Inc., 2019 CanLII 45625 (ON SCSM), the Court enumerated the factors relevant to the analysis of unreasonable interference:

[164] Unreasonable interference is determined by considering the gravity of the harm caused and utility of the defendant’s conduct. This necessitates an analysis of four factors: (1) severity of the interference; (2) character of the neighbourhood; (3) utility of defendant’s conduct and (4) sensitivity of the plaintiff.

Additionally, it should be noted that in Fiuza the Court stated that the landlord will generally not be liable except in the following circumstances:

[161] Generally, a landlord is not liable in nuisance if his property is in the control of a tenant. A landlord may be liable if he permits the creation of a nuisance in the tenancy agreement, or if the landlord continues to exercise a degree of control over the premises leased, such that a failure to abate the tenants’ nuisance was unreasonable. A landlord may be liable in situations where he leases property and the intended use conflicts with the neighbours, or is likely to cause a disturbance, such as a night club in a residential area or an asphalt plant in a subdivision.

In assessing the reasonableness of the conduct, in Angerer v. Cuthbert, 2017 YKSC 54 (CanLII), the Court noted that the assessment will differ in residential and commercial contexts at para. 13:

[...] The standard of comfort to be expected in a predominantly residential area differs from that of an industrial or commercial one. [...]

In St. Lawrence Cement Inc. v. Barrette, [2008] 3 SCR 392, 2008 SCC 64 (CanLII),
the Supreme Court of Canada summarized principles relevant to the tort of nuisance:

[77] At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct (A. M. Linden and B. Feldthusen, Canadian Tort Law (8th ed. 2006), at p. 559; L. N. Klar, Tort Law (2nd ed. 1996), at p. 535). Nuisance is defined as unreasonable interference with the use of land (Linden and Feldthusen, at p. 559; Klar, at p. 535). Whether the interference results from intentional, negligent or non‑faulty conduct is of no consequence provided that the harm can be characterized as a nuisance (Linden and Feldthusen, at p. 559). The interference must be intolerable to an ordinary person (p. 568). This is assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff’s use and the utility of the activity (p. 569). The interference must be substantial, which means that compensation will not be awarded for trivial annoyances (Linden and Feldthusen, at p. 569; Klar, at p. 536).

Alexsei publishing date:
108