Canada: A Balancing Act: The Ontario Court Of Appeal Clarifies The Function Of The Tort Of Nuisance In Our Modern Society

On June 2, 2011, the Ontario Court of Appeal released its decision in Antrim Truck Centre Ltd. v. Ontario (Transportation).1 The decision is important because it stresses that the tort of nuisance must be applied in a balanced manner, in a way that respects the rights of people to enjoy their properties, while applying a healthy measure of the principle "live and let live." Without such a balanced approached, normal and beneficial activities of modern society, like building new highways, would become actionable torts.

In a unanimous decision, the Court of Appeal overturned the decision of the Ontario Municipal Board, affirmed by the Divisional Court, that awarded Antrim damages for injurious affection. Antrim sought compensation on account of a change to the configuration of an Ontario highway that adversely affected Antrim's business.

A claim for injurious affection requires the plaintiff to establish an "actionable wrong." A common way in which plaintiffs seek to establish this wrong is through the common law tort of nuisance. Accordingly, the Court of Appeal's reasons include some important commentary on the tort of nuisance, and its function in modern society as a means to balance competing property interests.

As the Court of Appeal noted, nuisance is one of the oldest causes of action. Originating in medieval England in the 1100s, nuisance historically encompassed any "offence against civic order," such as innkeepers refusing to receive and entertain travellers; the making of pure or unreasonable malt; eavesdropping; sleeping in the day and walking by night; and women behaving as common scolds, to name a few interesting examples. Evidently, the tort of nuisance evolved considerably as society became more complex, particularly during and following the industrial revolution.

In Antrim, the Court of Appeal articulated a test for courts to consider modern-day nuisance claims in a way that balances the effect of the defendant's use of land on the plaintiff, while having regard to the reality that modern society requires a significant degree of "live and let live" as between neighbouring landowners.

In Antrim, the Court of Appeal made two significant holdings: (1) an alleged nuisance must be a "substantial interference" to meet the threshold of being an actionable nuisance; and (2) the Court is required to balance the competing interests of the parties when analyzing a nuisance claim based on an unreasonable interference with use and enjoyment of property, as nuisance is fundamentally about balancing the competing rights of landowners.

The Court of Appeal began its nuisance analysis by referring to two important principles from the Supreme Court of Canada's decision in Tock v. St. John's Metropolitan Area Board,2 the leading Canadian nuisance decision. The Court of Appeal referred to two important observations arising from Tock: (1) nuisance focuses on the damage to the plaintiff as opposed to the conduct of the defendant; and (2) nuisance embodies the concept of "give and take, live and let live." The Court goes on to define nuisance as "any activity or state of affairs causing substantial and unreasonable interference with a claimant's land or his use or enjoyment of that land."

Based on this definition, Court of Appeal laid out a two-part test to analyze whether something is a nuisance. To constitute a legal nuisance, the annoyance or discomfort must be both (1) substantial; and (2) unreasonable.

In respect of whether something is a "substantial interference," the Court states as follows:

Particularly as people live in closer proximity to each other, a certain amount, arguably ever-increasing amount, of interference with each other's property must be tolerated. It makes sense, therefore, that only substantial interference constitutes nuisance.

The requirement that the interference be substantial is a threshold aspect of the test. At this stage of the analysis, the court will exclude claims that disclose no actual interference as well as those in which the interference alleged is so trifling as to amount to no interference at all.

In respect of whether something is an "unreasonable interference," the Court of Appeal stated that this is a question of judgment based on all of the circumstances. The assessment is undertaken through consideration of four factors:

  1. the severity of the interference;
  2. the character of the neighbourhood;
  3. the utility of the defendant's conduct; and
  4. the sensitivity of the plaintiff.

The Court of Appeal drew a distinction between the "substance test," which is the first prong of the analysis, and the "severity factor" in the reasonableness analysis. The Court explained that these two inquiries ask essentially the same question -- how serious is the harm caused by the interference -- but for different purposes. The inquiry into whether the interference is substantial is the first step in the analysis. In this phase, "the court seeks to determine whether the actions of the defendant have caused any harm at all, and if so, whether it is sufficiently material to justify recognition, and possible interference, by the courts. Where the interference is so trivial that it does not pass this stage of the test, there will be no need to consider whether the interference is unreasonable in the circumstances" [emphasis added].

Under the "severity" analysis, the purpose is "not to determine whether the interference alleged is of a sort that warrants recognition of the courts (the threshold test), but rather whether the interference is sufficiently severe that, when viewed alongside the other elements of the reasonableness analysis, the plaintiff should not be expected to tolerate it in the circumstances" [emphasis added]. Accordingly, the Court of Appeal has defined the "substance test" as a "threshold inquiry." In other words, something is not a nuisance merely because there is an alleged effect on the plaintiff. This two-pronged analytic approach clarifies the proper application of nuisance in modern times. Society is far too complex for nuisance to apply as it did historically, where anything and everything that had an effect on the plaintiff could be a nuisance. The Court of Appeal has made it clear that the interference must be "substantial" to cross the threshold of being a nuisance at all.

The Court of Appeal also concluded that there is a balancing process inherent in the law of nuisance. The Court stated that "it is clear that the preponderance of authority supports the conclusion that in determining whether a claimant has successfully made out a case in nuisance based on interference with the use or enjoyment of the affected property, the court must balance the competing interests of the parties involved." The balancing is carried out through a consideration of the four factors taken into account in the reasonableness analysis.

Indeed, the Court of Appeal heavily emphasized that this balancing exercise is fundamental to the law of nuisance. Balancing competing interests is "consistent with the primary function of the law of nuisance; namely, to strike an appropriate balance between the defendant's interest in using its property as it pleases and the plaintiff's interest in the unfettered use and enjoyment of her land". Further, "the important principles of tolerance and accommodation necessary to sustain harmony among neighbours in an increasingly dense and complex society require the balancing of the interests of both parties to determine whether it is appropriate for the court to intervene to preserve the right of either to use their property as they wish."

The Court of Appeal performed the necessary balancing in Antrim and concluded that the reasonableness factors that were particularly applicable in this case were the character of the locality and the utility of the defendant's conduct. In respect of the character of the locality, Antrim operated its business adjacent to a highway, and the highway posed a significant safety risk to the general public. Therefore, the plaintiff could not have expected that a new highway would not be built, or that any new highway would follow the very same route as the old one.

The Court of Appeal also placed significant weight on the utility of the defendant's conduct in the balancing analysis. Construction of the new highway was not only in the public interest, but necessary for public safety.

The Ontario Municipal Board had concluded that the interference was substantial on the basis that the plaintiff's access to the highway was not "as before". The Court of Appeal found that the Board erred in finding nuisance on this basis alone, without weighing the public benefit against the private detriment. The Court of Appeal concluded:

When the interference to Antrim's access, while significant but clearly far from complete, is measured against the reasonableness of the [defendant's] use of its land, in an area through which a highway already ran, for the purpose of protecting the public from danger, the conclusion must be that Antrim has not made out a case in nuisance.

Ultimately, the Court of Appeal's articulation of the "substance test" as a "threshold inquiry" and its emphasis on the importance of balancing in nuisance provide helpful clarity to the function of the tort of nuisance in modern society.


1.2011 ONCA 419 [Antrim].

2. [1989] 2S.C.R. 1181 [Tock].

Laura Fric practices corporate-commercial civil litigation, specializing in securities litigation and defending class actions. Lauren Tomasich practices corporate-commercial civil litigation, with particular emphasis on class actions defence and securities litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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