Some of you might be interested in recent comments of Professor Jason Neyers (of the University of Western Ontario, Faculty of Law), which I repeat with permission, on the Supreme Court of Canada's recent decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 (CanLII).
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 [Tock v. St. john's Metropolitan Area Board, 1989 CanLII 15,  2 SCR 1181 per Laforest J and Dickson CJ]): 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.
Here is what Wilson J [writing for herself, Lamer and L'Heureux-Dubé JJ.] said in Tock:
"Moreover, I do not favour replacing the existing law in this area with a general test of whether it is reasonable or unreasonable in the circumstances of the case to award compensation. This test may, because of the high degree of judicial subjectivity involved in its application, make life easier for the judges but, in my respectful view, it will do nothing to assist public bodies to make a realistic assessment of their exposure in carrying out their statutory mandate. Nor will it provide much guidance to litigants in deciding whether or not to sue. It is altogether too uncertain. Nor can I, with respect, accept the proposition that a single individual suffering damage from an isolated nuisance should be dealt with differently from a group of people suffering damage from an ongoing nuisance. This seems to me to be quite incompatible with the concept of principled decision-making."
For a case comment on the Ontario Court of Appeal decision see : JW Neyers and Jordan Diacur, "What (is) a Nuisance? Antrim Truck Centre Ltd v Ontario (Minister Of Transportation)" (2011) 90 Can Bar Rev 215. The article can be downloaded at this link on the CBA website.