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You find a lot with a premium view, then your neighbour plants a wall of trees to block it. What happens next?
The recent Alberta Court of King's Bench decision of Nelson v Whitney, 2026 ABKB 24 [Nelson] reaffirms a principle that might come as a surprise to property owners: the loss of a view cannot found a claim in private nuisance, even in exceptional circumstances.
In this post, we examine what happened in Nelson, how Canadian courts think about private nuisance, and, most importantly, what you can do to protect views and manage "bad‑faith neighbour" scenarios. If you own, develop, or finance property, these risks should be considered.
How a neighbourly dispute over views ended up in court
The plaintiff and the defendants owned neighbouring properties in a subdivision south of Calgary, renowned and valued for their unobstructed views of the city and the Bow Valley. A restrictive covenant ("RC") registered against both properties restricted the size of building envelopes on each property to preserve the views of each lot. The plaintiff's lot sat on a slope above the defendants' lot.
After moving to the property, the defendants sought the plaintiff's consent to alter the RC to allow development beyond what was permitted under the existing RC. The plaintiff refused to provide consent.
Following this refusal, the defendants planted a row of twelve 25-foot spruce trees which were expected to reach 40-60 feet at maturity. While technically compliant with the RC, the plaintiff alleged that this was motivated solely by the malicious intent to block his view.
The plaintiff argued that the trees caused substantial and unreasonable interference with his property while the defendants argued that a claim for private nuisance could not be founded on a loss of view or prospect. The court was asked to determine whether the claim should be struck for lacking a reasonable prospect of success.1
How the court ruled
The two-part test for private nuisance was established in Antrim Truck Centre Ltd. v Ontario (Transportation) 2013 SCC 13 [Antrim] and requires an interference to be both substantial and unreasonable in order to qualify as a nuisance (the "Antrim Test").
In Nelson, Justice Hartigan held that loss of view was insubstantial, and therefore the court did not need to consider whether the interference was reasonable.
The legal reasoning, in plain terms
Citing the Supreme Court of Canada decision in St. Pierre v Ontario (Minister of Transportation and Communications) [1987] 1 SCR 906 [St. Pierre] and cases dating back to 1610, the Court noted that "the overwhelming authority in Canada stands for the proposition that a loss of view cannot be the basis of a claim in private nuisance".2 While the Court acknowledged various non-binding deviations from this rule, the cases involved offensive content, emergency matters, a loss of privacy, or they were decided in different jurisdictions. Justice Hartigan noted that American law has diverged on the issue of private nuisance since the 1970s.3 The Court followed the Canadian precedent, finding there is no action in nuisance for loss of view.4
Malicious intent
The plaintiff argued that defendant's alleged intent to use the trees to block the plaintiff's view should distinguish the case from past precedent. Justice Hartigan resisted this premise, noting that intentionality is only relevant to the second (reasonableness) stage of the Antrim Test.5 He went on to find that the facts in this case were not novel enough to justify deviating from precedent.
It is interesting that no distinction was drawn between the circumstances of Nelson, and the circumstances of Antrim and St. Pierre, the authorities from the Supreme Court of Canada on private nuisance. In both of those cases, the defendants were public bodies, not neighbours acting in bad-faith. However, as it currently stands, the relevant legal test (the Antrim Test) does not distinguish between the two.
Practical implications
For property owners concerned about preserving views, the lesson is clear: the law of nuisance provides almost no protection. Properly prepared restrictive covenants and easements can serve to protect views, but they must specifically address view corridors or planting restrictions to achieve their purpose, as courts will not imply view protection or consider malicious intent.
Footnotes
1 Pursuant to Rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010.
2 Nelson at para 20.
3 Nelson at para 14.
4 Nelson at paras 17, 20.
5 Nelson at para 19.
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.
