Dear Colleagues:
Although from a very high level of generality, the
Antrim case
really changes nothing in relation to the way Canadian courts
decide nuisance cases (a two-step test of substantialness and
reasonableness) on many points of detail the case is very
troubling. What are some of these troubling bits?
1. The court never explains why this is a private nuisance rather
than a public nuisance case. All Canadian cases prior to 1960
(and all UK cases even to the present day) treated this as a set
of facts sounding in public nuisance since the crux of the claim
is that the public right of way over the public road has been
interfered with at some distance from the plaintiffs property.
2. By treating the case as one of private nuisance they have in
effect changed the law of property which has heretofore stated
that a property owner's natural right of access was limited to
moving on and off their property only: it did not include changes
farther afield.
3. The court has redefined what it means to be unreasonable:
rather than looking into whether the interference was unreasonable
in light of the community standard and duration of the
interference, the court has adopted Justice LaForest's formulation
of the test from a case in which he was merely concurring (
Tock):
namely, that something is unreasonable if "it would be
unreasonable in all the circumstances to require the claimant to
suffer it without compensation". These seems a very strange way
to view the matter (as the majority thought in
Tock) since
isn't the purpose of the test for nuisance supposed to tell us who
is to be compensated rather than having that as part of the test.
Just some thoughts,
Jason Neyers
Cassels Brock LLP Faculty Fellow in Contract Law
Associate Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435
On 10/03/2013 12:16 PM, Lewis N Klar wrote:
Jason Neyers and Diacur wrote an excellent piece on
Antrim at (2011) 90 Can Bar Rev. 215 on the Court of Appeal
judgment. They explain the history of the litigation, and the
errors which they believe the Court of Appeal had made. They
discuss the "rights" analysis, but this was not taken up by the
Supreme Court of Canada. The Supreme Court essentially restricted
its judgment to discussing whether the construction of the highway
unreasonably interfered with the claimant's use and enjoyment of
its land, and affirmed that it did. The key point they made was
that merely because a use of land is highly beneficial to the
community the this does not necessarily trump the rights of a
private owner - not a novel or surprising finding.
Lewis
On Sun, Mar 10, 2013 at 1:32 AM, Neil
Foster
<Neil.Foster@newcastle.edu.au>
wrote:
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
Callaghan NSW 2308
AUSTRALIA
MC177, McMullin Bldg
ph 02 4921 7430
fax 02 4921 6931
http://www.newcastle.edu.au/staff/profile/neil.foster.html
http://works.bepress.com/neil_foster/
http://simeonnetwork.org/testimonies/119/Neil_Foster
--
Lewis N. Klar, Q.C.,
Professor of Law,
University of Alberta.
(780) 492-7408