From: Wright, Richard <rwright@kentlaw.iit.edu>
To: Gregory C. Keating <gkeating@law.usc.edu>
CC: obligations@uwo.ca
Date: 14/03/2013 14:11:03 UTC
Subject: Re: ODG: Nuisance caused by public works in SCC
Hi Greg.
 
I haven't had time to read it, either.  My comments are based on others' description of its content and reasoning..
 
Although the Restatement Second added the "unreasonable to bear without compensation" test to the prior facially utilitarian (but highly qualified in the comments) gravity-utility test in recognition of the clear strict liability for private nuisances in practice, the test of when it is unreasonable to bear without compensation is the traditional substantial interference (from the standpoint of a person with ordinary sensitivies in the locality) test, as Jason states.  This was the test applied by the trial court and upheld by the appellate courts in Boomer (which is better known but usually misinterpreted regarding the criteria for avoiding an injunction).  The "unreasonable to have to bear" test is vacuous, question begging and circular.
 
The basic problem with Antrim, as I and Jason see it, is the first two points that Jason makes.  No right of the plaintiff was interfered with, as a matter of private nuisance, since there was no interferencein use and enjoyment caused by a (nontrespassery, knowing) physical invasion of his property.  The "unreasonableness" (significance) of the interference comes into issue only if there has been such an interference in the first place.  And, as Jason also states, the court greatly (fantastically) expanded the traditional right of access to land under public nuisance doctrine (which does not require a physical invasion).
 
On all of this, see my paper in the Obligations V collection.

Assuming you made it to Chicago, I am very sorry to miss seeing you and so many other tort colleagues and friends at Shapo's event today and tomorrow.  Major reconstruction work began on our basement yesterday, and I need to be in place to keep an eye on things and make decisions as the work progresses.  Please convey my regrets and explanation to Marshall (as I have alrleady asked the event administrator to do, but which I fear may not be done) and my best wishes to the great group that will be together.
 
- Richard
 
On Thu, Mar 14, 2013 at 1:30 AM, Gregory C. Keating <gkeating@law.usc.edu> wrote:

Hi Richard,

 

I haven’t had time to read the opinion, but why is the test “that something is unreasonable if ‘it would be unreasonable in all the circumstances to require the claimant to suffer it without compensation’” so different from a Boomer type test in American law. I hope that you’re well.

 

Best,

Greg

 

From: Wright, Richard [mailto:rwright@kentlaw.iit.edu]
Sent: Wednesday, March 13, 2013 9:52 AM
To: Jason Neyers
Cc: Lewis N Klar; Neil Foster; obligations@uwo.ca
Subject: Re: ODG: Nuisance caused by public works in SCC

 

My thoughts exactly, from a US as well as general common law perspective, upon hearing of this opinion.  The result seems very odd.

On Wed, Mar 13, 2013 at 10:28 AM, Jason Neyers <jneyers@uwo.ca> wrote:

 

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 

 

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