ARTICLE
4 February 2025

Public Nuisance Claims: An Increasing Risk To Canadian Businesses

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McCarthy Tétrault LLP

Contributor

McCarthy Tétrault LLP provides a broad range of legal services, advising on large and complex assignments for Canadian and international interests. The firm has substantial presence in Canada’s major commercial centres and in New York City, US and London, UK.
In the last several years, plaintiffs have pursued an increasing number of public nuisance claims against Canadian businesses—particularly in product liability class actions.
Canada Litigation, Mediation & Arbitration

In the last several years, plaintiffs have pursued an increasing number of public nuisance claims against Canadian businesses—particularly in product liability class actions. Relative to more conventional negligence-based claims, public nuisance claims are attractive to plaintiffs—and perilous for defendants.

Public nuisance is a tort in Canadian common law jurisdictions. But, unlike negligence, public nuisance does not require a plaintiff to prove that a defendant (1) owed the plaintiff a duty of care or (2) breached a standard of care. Thus, when public nuisance applies, it is often easier for a plaintiff to establish liability in public nuisance than negligence—and sometimes to a larger class of affected persons.

Under Québec's civil law, public nuisance does not exist as a distinct cause of action. However, it can be effectively invoked by plaintiffs who bring cases under the Civil Code of Québec's no-fault liability regime of neighbourhood annoyances, under the general rules of civil liability, or under Québec's Charter of Human Rights and Freedoms.

Across Canada, plaintiffs are now trying to expand the scope of public nuisance, which typically concerns public property and resources but has an ambiguous scope. So far, courts have resisted attempts to expand the scope of public nuisance—highlighting the value of early applications to strike the claim. But plaintiffs continue to push the boundaries of public nuisance in new cases.

Public nuisance traditionally requires interference with property or resources

Attempts to expand the scope of public nuisance are facilitated by its ambiguous scope—public nuisance "lacks a central organizing principle that defines the metes and bounds of the cause of action".1

To establish a public nuisance, a plaintiff must identify (1) a public right and (2) an unreasonable interference with that right by the defendant.2 Recent attempts to expand public nuisance usually relate to the definition of a "public right".

Typically, public nuisance cases involve alleged interferences with public property or tangible resources. For example, public nuisance cases often involve (1) access to public facilities, highways, or waterways or (2) the public right to clean air, water, or a similar resource. In the classic public nuisance case, a defendant unreasonably interferes with the public's access to or use of a public road.

In Québec, classic public nuisance or neighbourhood annoyance cases similarly involve a public right to resources. For example, a class action claiming punitive damages was authorized on behalf of all residents of Québec against a car maker whose vehicles emitted excessive pollutants.3This claim was brought, in part, under the article of Québec's Charter of Human Rights and Freedoms that gives "every person" the right "to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law."4 By contrast, the neighbourhood annoyance regime can potentially bring private property rights into the realm of public nuisance, as it prohibits "owners of land from forcing their neighbours to suffer abnormal or excessive annoyances".5

Across jurisdictions recent cases have attempted to expand the traditional scope of public nuisance to include a variety of public interests beyond property and tangible resources. So far, those attempts have generally failed.

Public nuisance is actionable only by those who suffer "special damage"

Another ambiguity relates to the damage a plaintiff (or class member in a class action) must suffer before they can recover in public nuisance. While public nuisances often affect broad swaths of the public, only those who suffer "special damage" may recover damages. For example, making a public highway dangerous may be a public nuisance, but recovery may be limited to those who suffer an injury.

However, it remains ambiguous whether a plaintiff must suffer damage of a different kind to the general public to recover or only damage of a higher degree.6 A similar ambiguity exists in Québec, although it is generally recognized that "trivial annoyances caused by relations between neighbours will not trigger liability".7

Recent attempts to expand public nuisance have failed...

Plaintiffs have recently pleaded public nuisance claims in several prominent proposed class actions, but courts have generally struck them.

First, in a case against a gun manufacturer after a shooting in a public place, the Ontario Superior Court of Justice struck out a public nuisance claim while allowing a negligence claim to proceed. It was obvious the public nuisance claim would fail because "[a] manufacturer of a product cannot be made liable in nuisance for simply distributing its product in its course of business because the product is then misused by others".8

Second, in a claim by the Province of British Columbia against manufacturers and distributors of opioid medicines, the British Columbia Court of Appeal held that a plaintiff cannot easily turn a widespread public issue (the opioid epidemic) into a public nuisance. The Province's allegations remained private law allegations governed by legislation and the law of negligence, not public nuisance. The court was also concerned that allowing the public nuisance claim to proceed would obliterate products liability law and transform public nuisance in to the "emperor of all wrongs" (see our full discussion of this decision here).

And in another recent case—a proposed class action related to the Lytton Wildfire—the British Columbia Supreme Court held that a public nuisance claim was bound to fail because of the "special damage" requirement. The plaintiff made the public nuisance claim on behalf of everyone who claimed to have suffered any loss because of the wildfire. The court found it "incongruent" to argue that everyone suffered "special damage" over and above the damage suffered by the public.9

An attempted class action brought on behalf of persons, flora, fauna, pets and animals relating to electromagnetic field ("EMF") pollution was denied authorization by the Superior Court of Québec. In listing its various reasons for denying authorization, the Court noted in its analysis of plaintiff's claim under article 46.1 of the Charter of Human Rights and Freedoms that "in the Court's view that legislation does not grant status as class members to flora, fauna, pets or animals."10 According to the Court, the class action represented an attempt to conduct a form of commission of inquiry, both scientific and political in nature, which misused the class action process.

...but more attempts to expand public nuisance are coming

Plaintiffs continue to assert novel public nuisance claims against Canadian businesses notwithstanding the decisions above. For example, several recently-filed claims against manufacturers of PFAS (sometimes called "forever chemicals")—including one by the Province of British Columbia—include public nuisance allegations.

Similarly, a 2024 claim by the Toronto School Board against social media companies makes a public nuisance claim based on alleged interference with a public right to education. And cases elated to the Lytton Wildfire with other public nuisance claims remain active.

Footnotes

1. Valeant Canada LP/Valeant Canada S.E.C. v. British Columbia, 2022 BCCA 366, para. 181.

2. Valeant Canada LP/Valeant Canada S.E.C. v. British Columbia, 2022 BCCA 366, para. 177.

3. Association québécoise de lutte contre la pollution atmosphérique c. Volkswagen Group Canada Inc., 2018 QCCS 174

4. CQLR c C-12, article 46.1.

5. St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64 (CanLII), [2008] 3 SCR 392, para. 86.

6. O'Connor v Canadian Pacific Railway Limited, 2023 BCSC 1371, paras. 162-170.

7. St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64 (CanLII), [2008] 3 SCR 392, para. 78. See also Association québécoise de lutte contre la pollution atmosphérique c. Volkswagen Group Canada Inc., 2018 QCCS 174, par. 41-48.

7. Price v. Smith & Wesson Corp., 2021 ONSC 1114, para. 115.

9. O'Connor v Canadian Pacific Railway Limited, 2023 BCSC 1371, paras. 171-174.

10. Durand c. Attorney General of Quebec, 2018 QCCS 2817, para. 48.

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