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