Dear Colleagues;
Those interested in the area of private nuisance may find the recent decision of the SCC in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 http://www.canlii.org/en/ca/scc/doc/2013/2013scc13/2013scc13.html of interest. Legislation allowed compensation for "injurious affection" (that sounds like a failed love affair to me, but it seems to be a common form of the older "injurious affectation") resulting from public works. The re-routing of a road removed customers from the plaintiff. The legislation allowed compensation to be paid only if it would have been payable "if the construction were not under the authority of a statute". In other words, the question of whether there was an actionable private nuisance had to be resolved. It strikes me as a particularly artificial test: in this sort of case, who other than a government acting under statute would be building a public road these days? But the SCC decided that in the circumstances there was actionable private nuisance because (I think) the plaintiff should not have to bear an unfair burden of the cost of this public activity.
One might query, on a rights-based analysis, whether a landowner has a right against another person that that person not divert traffic from their business. Only if that were true should the court's decision have been this way, I think. But it is an odd way to structure legislation giving compensation for public works.
Regards
Neil




Neil Foster
Associate Professor,
Newcastle Law School;
University of Newcastle
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