A Primer on the Law of Nuisance

1.    Basic Elements of the Cause of Action:

(a)    The “Test:”

A concise outline of the general principles of the tort of nuisance was given by McIntyre J.A. in Royal Anne Hotel Co. Ltd. v. Ashcroft, [1979] 2 W.W.R. 462 at 465-6 (C.A.):

As has been said in Street on Torts, at p. 212: “The essence of the tort of nuisance is interference with the enjoyment of land.” That interference need not be accompanied by negligence. In nuisance one is concerned with the invasion of the interest in the land; in negligence once must consider the nature of the conduct complained of. Nuisances result frequently from intentional acts undertaken for lawful purposes. The most carefully designed industrial plant operated with the greatest care may well be or cause a nuisance, if, or example effluent, smoke, fumes or noise invade the right of enjoyment of neighbouring land owners to an unreasonable degree: see Manchester v. Farnworth, [1930] A.C. 171 (H.L.) and Walker v. McKinnon Indust. Ltd., [1949] O.R. 549, as examples.

In Royal Anne, supra, McIntyre J.A. found that the test for the tort of nuisance was “has the defendant’s use of his land interfered with the use and enjoyment of the plaintiff’s land and is that interference unreasonable?”  The Court of Appeal observed that it is easier to apply the test where there is actual physical damage to the lands in question than where there is no physical injury to the land and the nuisance amounts to “offence by reason of smells, noise, vibration or other intangible causes.” (at 466).

(b)    Factors to be Considered:

In cases where the alleged nuisance has not given rise to actual, physical damage, the court considers the following four factors in determining whether the intangible interference complained of constitutes an actionable nuisance:

(a)    the characteristics of the locality in question;
(b)    the severity of the harm;
(c)    the sensitivity of the plaintiff; and
(d)    the utility of the defendant’s conduct.

(c)    “Substantial and Serious:”

In Royal Anne at p. 467, the Court gave guidance on what constitutes an unreasonable invasion of an interest in land:

All circumstances must, of course, be considered in answering this question. What may be reasonable at one time or place may be completely unreasonable at another. It is certainly not every smell, whiff of smoke, sound of machinery or music which will entitle the indignant plaintiff to recover. It is impossible to lay down precise and detailed standards but the invasion must be substantial and serious and of such a nature that it is clear according to the accepted concepts of the day that it should be an actionable wrong. It has been said (see McLaren, “Nuisance in Canada”) that Canadian judges have adopted the words of Knight Bruce V.C. in Walter v. Selfe (1851), 4 De G. & Sm. 315, 64 E.R. 849 at 852, affirmed on other grounds 19 L.T.O.s. 308 (L.C.), to the effect that actionability will result from an interference with:

“…the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober … notions.”
These words were approved by Middleton J.A. in the Ontario High Court in Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 533 at 535-36.

In reaching a conclusion, the court must consider the nature of the act complained of and the nature of the injury suffered. Consideration must also be given to the character of the neighbourhood where the nuisance is alleged, the frequency of the occurrence of the nuisance, its duration and many other factors which could be of significance in special circumstances. While an owner of land in a quiet residential district may well expect to be protected from the operation of a boiler factory on his neighbour’s land, he may not be entitled to expect to prevent the boilermaker from pursuing his lawful calling when he seeks to put his residence in an industrial area next to the factory. The conflicting interests must be weighed and considered against all the circumstances. The social utility of the conduct complained of must be weighed against the significance of the injury caused and the value of the interest sought to be protected.

In order to be actionable, the nuisance must have caused the plaintiff to suffer a substantial interference which affects the use and enjoyment of his/her property.  If the plaintiff establishes a substantial interference, the court goes on to consider whether the interference is unreasonable in light of all surrounding circumstances:  Sutherland v. Canada (Att’y General), [2001] B.C.J. No. 1450, at para. 22.

The severity of the interference must be viewed with regard to its “nature, duration and effect.”  Not every interference will give rise to an actionable nuisance.  The interference must be “substantial and serious and of such a nature that it is clear according to accepted concepts of the day that it should be an actionable wrong:”  Sutherland (S.C.) at para. 23.

What is actionable is “substantial damage” to the plaintiff’s property or “substantial interference” with the plaintiff’s use and enjoyment of land.  Additionally, the damage must be “actual” or “existing” and the court has no right to take into account contingent, prospective or remote damage:  Walker v. McKinnon Industries Ltd., [1949] O.J. 468 at para. 30.  Accordingly, perceived depreciation in property value is not actionable unless it is actually suffered.

(d)    Objective Test: Unreasonable Interference with Ordinary Use and Enjoyment of Property.

It is evident that the test for nuisance is objective, and the plaintiff’s subjective complaints must be viewed in the context of the objective standard of the average reasonable resident in the area.  This objectivity guards against claims arising from persons with abnormal sensitivities.  In Gichuru v. York, [2011] B.C.J. No. 46 (S.C.), the court held that the plaintiff had failed to prove that the alleged nuisance (noise from coffee shop) constituted a substantial interference with his use and enjoyment of the property because he neglected to call any witnesses other than himself to give evidence regarding the nature and severity of the disturbance.  The court observed that “the plaintiff has the onus of proving that, on a balance of probabilities, the nature and severity and duration of the interference is such that it would not be reasonable to expect an ordinary person occupying the same premises to tolerate it” (para. 25).  Given the objective quality of the test, the plaintiff could not satisfy his burden by leading evidence solely of his own, subjective experience.

The question of the severity of harm must be decided on the particular facts of each case.  It is evident, however, that the court will be more reluctant to find an actionable nuisance where the alleged interference is an “incident of daily living,” such as a neighbour playing the piano and the relatively unobtrusive barking of dogs:  see Chiang v. Yang, [1999] B.C.J. No. 966 and Miron v. Dusette, [1987] O.J. No. 1577.

The court will also consider the sensitivity of the plaintiff in assessing whether an actionable nuisance has been made out.  It has been held that a plaintiff engaged in a particularly delicate enterprise may not be able to recover in nuisance.  In Robinson v. Kilvert (1889) 41 Ch. D. 88 at 97 (C.A.), it was alleged that hot dry air from the defendant’s box manufacturing plant damaged the delicate high grade paper kept in the plaintiff’s nearby warehouse.  In rejecting the plaintiff’s claim, the court noted:  “A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something that would not injure anything but an exceptionally delicate trade.”

This principle has been applied in the case of a recording studio where the plaintiff complained that noise and dust from the defendant’s construction substantially interfered with their operation: Pinewood Recording Studios Ltd. v. City Tower Development Corp., [1996] B.C.J. No. 2322.  In that case, the plaintiff led evidence as to his requirements for a sound studio.  These were recited in the reasons for judgment as follows:

Although not qualified as an expert in terms of sound and its transmission, Mr. Turner, who has had much practical experience, described his requirements for a sound recording studio as being a structure that provides an acoustical environment in which sound can be produced and recorded free from outside interference. A studio must be colourless in terms of other sound and the aim of construction is not so much to sound proof, a feat that is impossible, as it is to reduce the transmission of sound from outside to inside or vice versa.

The plaintiff’s complaint in Pinewood was that the conduct of the defendants in constructing a new condominium tower on the adjoining property resulted in physical damage to his studio as well as unreasonable noise and vibrations.  An acoustics expert gave evidence at trial that the ambient, background noise at the studio was between 24 to 25 db but that decibel levels rose to between 30 and 31 db with the construction activity next door.

At paragraph 126 of the reasons, the court commented on the appropriate test for determining whether an intangible interference is actionable.  The court observed that “if a plaintiff’s use of property is abnormally sensitive, recovery may be denied because the standard to be applied in the standard to be applied in the assessment of whether there has been unreasonable activity causing interference is an objective one.  Therefore, conduct must be governed only with reference to normal or ordinary persons, not idiosyncratic or abnormal use by a plaintiff.”

The defendants argued that the operation of a sound studio is a use that is “extraordinarily sensitive and, as such, whatever interference occurred does not constitute a nuisance.”  On the basis of the evidence, the court concluded that “the plaintiff’s operations were unusually sensitive in nature, and that the manner of construction of such a studio shows the need to operate in an environment that minimizes sound intrusion and permits only occasional interference from outside.”  Ultimately, the court dismissed the plaintiff’s claim in nuisance but found that the property damage to the studio was recoverable under principles of negligence.

(e)    Character of the Locale:

When the court considers the reasonableness of the defendant’s use, consideration should be given to the character of the neighbourhood and the utility of the impugned conduct:  Tock v. St. Johns Metropolitan Area Board, [1989] 2 S.C.R. 1181 at 1191.  The authorities recognize that nuisance is to determined within context, and what is a nuisance in one locale cannot be assumed to be a nuisance in another:  Sutherland (S.C.) at para. 27.

It is well settled on the authorities that “it is no defence that the plaintiffs themselves came to the nuisance:”  Russell Transport Ltd. v. Ontario Malleable Iron Co., [1952] O.J. No. 451 (Ont. H.C.J.).  In their text, The Law of Nuisance in Canada, Gregory Pun and Margaret Hall observe that “ ‘coming to the nuisance’ is not a defence, nor does it amount to contributory fault on the plaintiff’s part.”  The authors go on to say that “[d]efendants do themselves a disservice by conflating ‘coming to the nuisance’ with ‘contributory fault,’ since ‘coming to the nuisance’ is bound to fail, whereas there is some proper scope for the defence of contributory fault” (at p. 181).  The correct principle was stated in a 19th Century case dealing with public nuisance as follows:

It would be a strange proposition if a man could for his own profit overflow some fifteen thousand acres of land with nearly stagnant water, so as to render the land surrounding and adjoining uninhabitable, except at the imminent risk of health, and to say, that having done this before there were inhabitants, they cannot complain that he is guilty of a nuisance, for they need not have come to it.  (R. v. Brewster, [1858] O.J. No. 258 (U.C.C.P.); cited with approval in Hadden v. North Vancouver (Municipality), [1922] B.C.J. No. 12 (B.C.C.A.).

While priority of presence does not offer a defence to a claim in nuisance, the prior existence of the infringing use is relevant to the question of whether the impugned activity amounts to an actionable nuisance on the basis of the objective test, which considers (among other things) the “character of the locality.”

The analysis of the Ontario court in Laing v. St. Thomas Dragway, [2005] O.J. No. 254 (Ont. S.C.J.) provides an example of how the prior presence of the nuisance may preclude a finding of nuisance in certain circumstances.  This was an action by residents of a rural Quaker community against the owner/operators of a neighbouring “dragway,” claiming that the dragway created excessive noise which interfered with the use and enjoyment of the plaintiffs’ properties.  It was accepted at trial that the dragway had been in continuous operation for some 40-years and that it was operating in compliance with the applicable noise bylaws, both of the local municipality and the Ministry of the Environment.
The court made the following observations and findings which are pertinent to the matters at issue in our case: namely,

·    “The dragway had been included in the official plan for the area since 1968 and received permission from the municipality and the Ministry of the Environment to conduct races until 10:00 p.m.” (Headnotes)
·    The Plaintiffs’ expert conducted acoustical testing over the Canada Day weekend, during a major racing event.  “On the day of testing, the results of Mr. Gastmeier’s analysis of the noise, indicated that the noise level emanating from the dragway exceeded the MOE guideline limits for ‘stationary noise sources’ at all three properties.  He testified that sound levels above 80 dba are not commonly encountered in and around residential dwelling units, with the exception of power tools, lawnmowers, loud stereos etc.” (para. 33)
·    “The damage to proprietary interest which is sufficient to found an action of nuisance may consist either in (1) some interference with the beneficial use of the premises occupied by the plaintiff, or (2) some physical injury to those premises…  A plaintiff who wishes to establish a nuisance to personal comfort has a heavier burden of proof to discharge than one who seeks to show a nuisance to property.” (para. 35)
·    “The paramount problem … is to strike a tolerable balance between conflicting claims of landowners, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interest of the other… Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort of the time and place.”  (para. 37)
·    Citing Morden J. in Walker v. Pioneer Construction Co. (1967) Ltd., 56 D.L.R. (3d) 677:  “The law makes it clear that the character of the locality in question is of importance in determining the standard of comfort, which may reasonably be claimed by an occupier of land.” (para. 38)
·    In order to be actionable, the interference must be substantial, meaning “real interference with the comfort or convenience of living according to the standards of the average man.” (para. 41)
·    There are four factors to consider when determining whether the interference is “unreasonable:” namely “(1) the severity of the interference, having regard to its nature, duration and effect; (2) the character of the location; (3) the utility of the defendant’s enterprise; and (4) the sensitivity of the complainant.” (para. 42)

In applying these principles, the court observed that the amendments to the OCP and zoning bylaws permitting the operation of the track do not of themselves preclude a finding of nuisance, but they are factors the court may consider in determining the character of the locale, one of the four factors relevant to assessing the “reasonableness” of the interference (para. 54 & 57).

Given that the dragway had been operating in the locality for 40-years, the court found that the alleged nuisance must be assessed through a frame of reference, which included the dragway as part of the “locale.”  Accordingly, the court had no difficulty finding that “resident in a neighbourhood that includes a dragway must inevitably tolerate a certain amount of noise” (para. 59).

As part of its analysis, the court accepted that the corporate defendant ought not to be held liable for nuisances caused before it purchased the racetrack in 1999 (para. 60).  This was relevant because it was conceded by the plaintiffs that the noise levels at the track had reduced since the defendant took over operations (para. 62), and the defendant gave evidence about efforts to reduce noise levels (para. 63).

The court observed (at para. 70) that the delay of the plaintiffs in complaining about the dragway allowed the dragway to become part of the community over time.  This made the case distinguishable from the authorities relied on by the plaintiffs (discussed below), where the complaint was brought within a very short time after the approval and initial occurrence of the infringing activity.  Assessing the impact of the interference through this frame, the court concluded that “the general noise level to which the plaintiffs are subject by virtue of the dragway’s operations during the hours of 9:00 a.m. to 10:00 p.m. on Saturdays and Sundays and on Friday evenings, do not cause inconvenience beyond that which other residents in the community may be expected to bear” (para. 89).  However, the court did conclude that the plaintiffs had discharged their onus of proving an unreasonable interference “with respect to Sunday mornings when they wish to lie quiet in bed or worship at their various churches.”  For these reasons, the court held that racing on Sundays shall not commence before 1:00 p.m. (para. 90 & 92).

The decision in Laing provides an example of a situation where the prior presence of the nuisance activity was relevant to the court’s assessment of the “character of the locale,” and militated against a finding of “unreasonable interference” with respect to most of the defendant’s activities.  The case, however, is clearly distinguishable given the fact that the impugned activity had been going on for some 40-years by the time the matter reached the courts.

2.    Defences:

(a)    No Fault:

In summary, the Royal Anne v. Ashcroft decision holds that a property owner may be strictly liable for physical damage resulting from a nuisances that occur on his or her property, regardless of whether the nuisance results from intentional, negligent, or non-faulty conduct.

But what about the situation where the nuisance results from the conduct of a third-party contractor rather than the property owner himself ?  Should the property owner be strictly liable when he or she played no direct role in the creation of the nuisance, other than being the occupier of the land where the nuisance originates?   This was the issue before the Alberta Court of Queen’s Bench in Pitt v. Koch, [1992] A.J. No. 1251.  In that case, the Court found that the defendant property owners should not be liable for a nuisance created by their independent contractor, since they could not have foreseen in the ordinary course of things, that a nuisance would arise.  The particular nuisance at issue in Pitt was water damage caused by the negligent installation of a water line.

Pitt has been criticized by Professor Klar in his text, Tort Law, on the basis that the defendant property owners had authorized the contractor’s work and therefore ought to have been liable for creating the nuisance.  Klar cites the British Columbia case of Philip v. Smith [1994] B.C.J. No. 1086 as setting out the proper approach.  In that case, the defendant landowner was held strictly liable for damages caused to his neighbour’s property when a negligently constructed retaining wall gave way.  The fact that the retaining wall had been constructed by an independent contractor afforded the landowner no defence.

(b)    Statutory Authority:

Two relatively recent decisions of the B.C. Court of Appeal provide guidance on how the defence of statutory authority ought to be applied and assessed by the courts.  These are:  Sutherland v. Canada (Atty General),  2002 BCCA 416 and Susan Heyes Inc. v. Vancouver, 2011 BCCA 77.

Sutherland was a class action case against the Attorney General of Canada arising from the approval of a third, north runway at the Vancouver International Airport.  The trial judge held that the plaintiffs had succeeded in establishing the requisites for an actionable private nuisance on the basis that the sound from landing aircraft constituted an unreasonable interference with the use and enjoyment of the plaintiffs’ properties.  The trial judge went on to consider the defence of statutory authority and in the circumstances held that the defendant could not avail itself of the defence because (1) the applicable legislation did not mandate the construction of the runway; and (2) there were alternative locations for the runway which would have abated the nuisance.  The Court of Appeal held that the trial judge’s finding of nuisance was “supported by an overwhelming body of evidence” and opted not to review his findings on that issue in much detail (para. 6).  Accordingly, the central issue on appeal was whether the judge erred in holding that the defence of statutory authority was not available.

The Court of Appeal referred to the following extracts from the trial decision where the trial judge made findings pertinent to the application of the defence:

[268] The Aeronautics Act did not mandate the construction of a third runway as located, constructed and operated. The statute appears targeted at the Minister and not intended to extend to private facilities operated by private contractors.

[269] I conclude there is no factual connection between the construction and operation of the north runway and the Minister’s power under s. 4.2 or power of delegation pursuant to s. 4.3 of the Aeronautics Act.

[274A] I do not find the airport certification process nor the air traffic control regulations can be said to authorize the nuisance that has occurred. The purpose of these regulations is safety. The certification process and regulations do not expressly preclude liability for nuisance, and indirectly, although some noise is necessarily produced by compliance with them, I cannot find that the only reasonable inference from such regulations is that they were intended to authorize nuisance.

[275] In this case, no legislation has expressly authorized the nuisance that has occurred. In such circumstances, Sopinka J.’s analysis at p. 1225 of Tock, supra, limits the application of the defence of statutory to circumstances “[w]here the only reasonable inference from the legislation” is that interference with private rights is authorized.

The Court of Appeal began its dissertation of the law applying to the defence of statutory authority at para. 63.  The following are the key points of the discussion:

·    Citing the S.C.C. in Ryan v. Victoria:  “Statutory authority provides, at best, a narrow defence to nuisance.  The traditional rule is that liability will not be imposed if an activity is authorized by statute and the defendant proves that the nuisance is the “inevitable result” or consequence of exercising that authority.” (para. 63)
·    Citing the S.C.C. in Tock v. St. Johns:  “The defendant must negative that there are alternate methods of carrying out the work.  The mere fact that one is considerably less expensive will not avail.  If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance.  It is insufficient for the defendant to negative negligence.  The standard is a higher one.  While the defence gives rise to some factual difficulties, in view of the allocation of the burden of proof they will be resolved against the defendant” (para. 64).
·    Tock an Ryan “make clear what the law requires when the defence of statutory authority is pleaded.  The statute must authorize the work, conduct or activity complained of, either expressly or by necessary implication.  The test focuses on what work, conduct or activity is authorized by statute, rather than on the person or body upon whom the authority is conferred” (para. 67).
·    The Court of Appeal cited Driedger in support of the conclusion that “subordinate legislation” such as regulations, rules, orders, by-laws and ordinances can give rise to the defence (para. 69 & 70).

The first question that the Court dealt with was whether the creation of the nuisance was implicitly contemplated by the statutory scheme (para. 77).  In this regard, the Court considered whether the statutory scheme authorized the construction of the runway in its present location (para. 78).  The Court had no difficulty finding that the scheme did indeed contemplate the construction and operation of the runway in its as-built alignment, given that the location of the runway was the subject of extensive consultations (para. 81).

The Court next considered the plaintiff-respondent’s argument that the defendant was precluded from relying on the defence of statutory authority given that there was no relationship of agency between the Airport Authority and the Crown and therefore it could not be said that the runway was constructed or operated by or on behalf of the Minister.  The Court rejected this argument as being contrary to the principle that the focus of the analysis should be on the work authorized by statute rather than the person or body upon whom the authority is conferred.  Accordingly, the proper question was “what work, conduct or activity was authorized by statute, not who was authorized to carry it out.”  Further, it was well established that “private parties can rely on the defence of statutory authority, if the work in question was authorized by statute” (para. 86).

In the trial decision, the judge had looked to the “purpose” of the legislation and concluded that it did not specifically authorize the creation of the nuisance.  In this regard, the judge observed that “the purpose of the regulations was safety.”  The Court of Appeal held that the judge had erred in looking to the purpose of the legislation rather than its legal effect, observing that “the legal effect was to authorize the operation, in a specific location, of the airport and runway” (para. 97).

With respect to the argument that there were alternative locations which might have abated the nuisance, the Court of Appeal held that the trial judge had erred in embarking on such an inquiry, given that the “precise location and configuration of the new runway was authorized by statute.”  Accordingly, in asking whether nuisance was the “inevitable result” of the exercise of the statutory authority, the trial judge should have confined his inquiry to the runway in its authorized and as-built location (para. 104).  The Court further observed that the “choice of where best to locate the new runway was not a legal question.  It was a ‘political’ issue to be resolved through appropriate public procedures” (para. 107).

In conclusion, the Court of Appeal revisited the comment of Major J. in Ryan to the effect that nuisance provides a narrow defence at best.  The Court of Appeal interpreted this to mean “that the onus is upon the defendant asserting the defence to establish clear and unambiguous statutory authority for the work, activity or conduct complained of, in the place where that work, activity or conduct takes place, and express or implied authority to cause a nuisance as the only reasonable inference from the statutory scheme” (para. 118).  The Court of Appeal held that the defendant had met the test.

The Court of Appeal’s subsequent decision in Susan Heyes Inc. v. Vancouver, supra, built on the principles enunciated in Sutherland and added further dimension to the analysis.

Heyes was an appeal from a trial decision holding Translink and others liable for nuisance in relation to the construction of the Canada Line on Cambie Street in Vancouver.  The central issue in the case was whether Translink’s decision to opt for cut and cover tunnel construction on the Cambie corridor over bored tunnel construction gave rise to the defence of statutory authority.  The Court of Appeal held that the trial judge had correctly applied the tests in finding that the construction had caused an actionable nuisance, but erred in the approach he took to the statutory authority defence.

At paragraph 58 of the appeal, the Court affirmed that the question of the lawfulness of the defendant’s conduct is not relevant to the nuisance analysis but may give rise to a defence to an otherwise actionable nuisance in cases where the impugned activity was authorized by statute (either specifically or by necessary implication) and could not have been avoided in exercising the statutory mandate.

The appellants argued that the trial judge erred in finding that bored tunnel construction was a viable alternative to cut and cover, and that he failed to give proper weight to the significant and long term public benefit arising from the Canada Line, in contrast to the temporary nature of the interference to the plaintiff during its construction. (para. 62)  The Court of Appeal agreed, finding that the trial judge had erred in approaching the issue as if bored tunnel and cut and cover were readily interchangeable options.  The two options had been considered and weighed as part of comprehensive and voluminous proposals submitted by SNC Lavalin and RAVxpress as part of the tendering process.  Further, the Court recognized that the decision to go with cut and cover was effectively a policy decision based on a “multitude of inter-related factors to be considered in assessing those proposals and their social utility” (para. 64).

With regard to the applicable test for the defence of statutory authority, the Court noted that the defence raises two areas of inquiry.  The first is whether the act causing the nuisance was expressly or implicitly authorized by statute.  If so, the second is whether the nuisance was the inevitable result of the statutorily authorized actions (para. 79).  The Court observed that the defence is difficult to establish and the legislation in question must be strictly construed in accordance with the presumption against interference with individual rights (para. 80).

The appellants sought to ground the defence of statutory authority in several sources: namely,
·    The legislation under which the Transportation Authority was initially incorporated.
·    A resolution to proceed with the project proposal passed by the Authority’s board.
·    The City’s authority to regulate vehicular and pedestrian traffic under its Charter.
·    The Environmental Assessment Certificate for the project.

The Court of Appeal held that the TransLink enabling legislation provided the requisite statutory authority for the construction of the transit line and that nuisance was an inevitable result of exercising this authority.  The Court’s discussion is set out in more detail below.

The Greater Vancouver Transportation Authority Act clearly set out the discretionary power to construct the Canada Line.  The relevant provision of the Act was as follows:

3    The purpose of the authority is to provide a regional transportation system that
(a)    moves people and goods, and
(b)    supports
(i)    the regional growth strategy, and
(ii)    the air quality objectives and economic development of the transportation service region.
4(1)    Subject to this Act, the authority must do the following to carry out its purpose:

(e)    acquire, construct and maintain any assets, facilities and other real or personal property required for the regional transportation system.

It is evident that the powers conferred on TransLink are of a general description and the authority is not specifically authorized to perform cut and cover construction, although this would necessarily fall within the scope of its mandate.  The appellants attempted to establish that the express authority to construct the Canada Line using cut and cover construction had been granted through a resolution passed by the TransLink Board in approving the decision to proceed with SNC Lavalin’s bid.

The plaintiff-respondent had argued at trial that the Board’s resolution did not have sufficient legislative character to constitute a statutory authority.  This argument was based on the basic tenet that common law rights can only be abrogated by express legislation strictly construed (para. 92).  While the Court accepted that Translink was a governmental entity with municipal characteristics, it agreed with the respondent that the resolution was not imbued with legislative character (para. 98).  The Court cited the Supreme Court of Canada in Canadian Federation of Students v. Greater Vancouver Transportation Authority, [2009] 2 S.C.R. 295 for the proposition that:

In order to be legislative in nature, the policy must establish a norm or standard of general application that has been enacted by a government entity pursuant to a rule making power.  A rule making authority will exist if Parliament or a provincial legislature has delegated power to the government entity for the specific purpose of enacting binding rules of general application which establish the rights and obligations of the individuals to whom they apply (para. 99).

The Court was satisfied that the resolution was not legislative in form or substance.  “It did not create a norm or rule of general application.  Instead, it embodied an executive decision by TransLink to conditionally approve moving to the preferred proponent stage with SNC-Lavalin and entering negotiations toward a concession agreement” (para. 100).

The Court next considered whether the defence was available owing to the  general power vested in TransLink pursuant to the Greater Vancouver Transportation Authority Act to build the Canada Line.  The defendant-appellant attempted to draw an analogy between the cut and cover construction and the choice of the location for the north runway in Sutherland.  The Court of Appeal rejected this argument, noting that there was a fundamental difference given that the runway location in Sutherland “was expressly authorized by statutory framework” (para. 114).  Here, the method of construction was not statutorily authorized.

Although the nuisance in this case was not specifically mandated by statute, the Court found that it was nevertheless authorized as part of a general discretionary power vested in TransLink.  At paragraph 116, the Court of Appeal observed that “where the nuisance arises from the exercise of a discretionary statutory power, the question of whether the nuisance was inevitable necessarily involves an examination of whether there were alternative non-nuisance means of carrying out the authorized activity” (para. 116).  This, in my view, marks a departure from earlier cases which required the defendant to prove (as a first step) that the nuisance was specifically authorized by statute or arose as a necessary implication from the exercise of the statutory mandate.  Here, the source of the nuisance – namely, the decision to proceed with cut and cover construction instead of tunnel boring – was neither specifically authorized by statute or a necessary result of the exercise of the statutory authority.  The decision to approve cut and cover construction was within the legislative mandate, but not a necessary result of the exercise of the power.

Having found that the source of the nuisance was within the statutory mandate, the Court next considered whether nuisance was the “inevitable result” of the exercise of the statutory power.  The trial judge had ruled that the existence of other viable options for the Canada Line construction (namely tunnel boring) negatived a finding that the nuisance complained of was the “inevitable result” of the exercise of the statutory authority.  The Court of Appeal disagreed and opted for a common sense approach to assessing the viability of alternative methods which included among other things consideration of the costs involved.  At paragraphs 119 through 125  of the decision, the Court said:

The question in this context [i.e., the inevitability of the nuisance], as established in Manchester and Ryan, is whether there was a practically feasible option to cut and cover construction that would not have created the nuisance, given the scientific possibilities, the financial picture, and other relevant circumstances, viewed from a common sense perspective.

The breadth of those considerations makes it evident the question of practical feasibility involves something other than mere technical feasibility of the options.  In this case, I am satisfied the other relevant factors may properly include consideration of which option will best satisfy the objectives of the project…

Here, for the reasons introduced at paragraph 64 of this decision, I am persuaded the trial judge erred in limiting his analysis of the alternatives to the construction methods alone.  Bored tunnel and cut and cover construction were not interchangeable items in a construction contract.  Rather, they were just one component of the comprehensive proposals of SNC-Lavalin and RAVxpress.  The framework established by CLRT and TransLink to consider those proposals was a formal competitive procurement process, overseen by a fairness auditor.  At each stage, the proponents’ bids had to be evaluated as presented.  It was not open to the appellants to deviate from that process and suggest, for example, that SNC-Lavalin revise its proposal to substitute bored tunnel construction for cut and cover construction in Cambie Village before the preferred proponent was selected.  Thus, a proper examination of the practical feasibility of alternatives has to consider each proposal as a whole…
The CLRT evaluations show the SNC-Lavalin/Serco proposals were heavily favoured at both the RFP and BAFO stages for a variety of reasons. The prospect of cut and cover construction in Cambie Village was unquestionably one of these, in part because it was less expensive. The trial judge correctly found the lower cost of SNC-Lavalin/Serco’s proposal was a major consideration. Public funding remained at $1.35 billion. The final Evaluation Committee Report estimated the SNC-Lavalin/Serco proposal required $1.443 billion in public funding, while that of RAVxpress required $2.008 billion, a difference of $565 million. (There was no clear evidence as to what the cost of each construction method was, or how much of the disparity in cost was attributable to this feature.)
Ms. Bird’s unchallenged evidence was the public sector funding cap made acceptance of the RAVxpress proposal “utterly impossible”. Moreover, the record shows even the financial feasibility of the SNC-Lavalin/Serco proposal was uncertain at the conclusion of the evaluation process in November 2004. CLRT’s BAFO Stage Funding Report stated SNC-Lavalin/Serco’s proposal had a $343 million shortfall, and concluded it was unaffordable as defined. As a result, the formal selection of SNC-Lavalin/Serco as the preferred proponent by TransLink had to be delayed for several weeks until the participants were able to identify scope changes and funding initiatives to eliminate the shortfall.

In addressing the comparative financial costs of the proposals, I acknowledge that the Supreme Court in Ryan, at para. 55, approved the view the mere fact one option is considerably less expensive will not be sufficient to negative a non-nuisance alternative. In my respectful view, however, the common sense approach advocated in Manchester suggests there must be some point at which a strong evidentiary record of significant financial disparity that demonstrates one option is practically impossible, becomes a legitimate consideration in determining the practical feasibility of alternatives. The decision in Smiley v. Ottawa, [1941] O.R. 47, [1941] 2 D.L.R. 390 (C.A.), offers support for that approach. There, Riddell J.A. was of the view that greater expense is no excuse unless the greater expense is “practically prohibitive”.

In my view, this is such a case. The RAVxpress option required over half a billion dollars more in public funding than that of SNC-Lavalin/Serco. It was deemed “impossible” by the chief executive officer of CLRT. There was no evidence suggesting that assessment was wrong. In my view, this large and insurmountable shortfall in public funding cannot be ignored in weighing the practical feasibility of the options.

3.    Remedies:

(a)    Injunction:

In Canada, the courts have adopted the following test from Shelfer v. City of London Electric Co., [1895] 1 Ch. 287 which sets out the factors that go into the determination of whether to award damages in lieu of an injunction:

It may be stated as a good working rule that:

(1)    If the injury to the Plaintiff’s legal rights is small,
(2)    And is one which is capable of being estimated in money,
(3)    And is one which can be adequately compensated by a small monetary payment,
(4)    And the case is one in which it would be oppressive to the defendant to grant an injunction then damages in substitution for an injunction may be given.

There is English authority which holds that the general type of relief in a nuisance case is an injunction unless it can be established that damages are a more appropriate remedy.  Having researched the law in this area, it is our view that the approach taken by the courts in Canada is not to regard an injunction as an automatic remedy that is imposed whenever the Plaintiff succeeds in establishing liability, but rather a “discretionary remedy” that may be ordered in the appropriate case.

In North Vancouver (City) v. North Shore Land Co., [1973] B.C.J. No. 590, the B.C. Supreme court held that:

There is no categorical or automatic right to an injunction for nuisance; rather the essential nature of nuisance as a continuing interference with property rights creates the kind of circumstances in which an injunction is most likely to be granted when requested, unless the interference is trivial in nature or an injunction cannot be justified on the balance of convenience.

In assessing whether injunctive relief is appropriate the courts will engage in a balancing of interests: namely, the benefit to the plaintiff in having the order enforced and the burden to the defendant in ensuring compliance.  Accordingly, it has been held that where the injury to the plaintiff can be adequately compensated in money, and the burden to the defendant in undertaking repairs is large, a mandatory or prohibitive injunction may be inappropriate.

In the case of a mandatory injunction, where the defendant is being ordered to do something, the courts are particularly concerned that the terms of the order should be clearly defined to enable the defendant to understand with reasonable certainty what are his/her obligations: Redland Bricks Ltd. v. Morris, [1970] A.C. 652 at 666.  This is due in part to the serious consequences that can arise from breach of a mandatory order.

In the Redland Bricks case, the defendant had excavated a portion of his lands causing a loss of support to his neighbours, the plaintiffs.  A slip occurred and further slippage was likely if support was not restored.  The trial judge ordered an injunction requiring the defendants to “take all reasonable steps to restore support to the [plaintiffs’] land within a period of six months.”  The injunction was upheld at the Court of Appeal but overturned by the English House of Lords, in part on the ground that the mandatory order failed “to see that the defendant [knew] exactly in fact what he has to do and … not as a matter of law but as a matter of fact, so that in carrying out the order he can give his contractors the proper instructions” (at 656).

The Redland case was recently applied by the B.C. Court of Appeal in British Columbia (Director of Civil Forfeiture) v. Onn, [2009] B.C.J. No. 1867, where the Court commented on the cautious approach taken to mandatory injunctions.  The relevant discussion reads as follows:

Courts are similarly cautious in their treatment of mandatory injunctions, Redland Bricks v. Morris [cite omitted].  In overturning a mandatory injunction, the House of Lords per Lord Upjohn held:
If in the exercise of its discretion the court decides it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact…

Another example of a case in which a court has refused to impose a mandatory injunction due to vagueness is Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52…  In that case, the Supreme Court of Canada refused to enforce a foreign judgment enjoining a Canadian defendant because, in part, the terms of the order were not sufficiently specific.

This brings us to the question of which party has the burden of proof to demonstrate that there is a reasonable and effective solution to the nuisance.  The Redland case suggests that the burden may be on the party seeking the order (the plaintiff) to show that the terms of the mandatory order would be sufficiently precise for the defendant to know exactly what he/she needs to do to comply.  If the plaintiff has no evidence that a fix is even possible, the court will likely be reluctant to order a mandatory injunction.  Indeed, there is one B.C. recent authority which appears to hold that it is the plaintiff’s burden to prove that the order sought will effectively deal with the problem.  In Boggs v. Harrison at paragraph 141, D.A. Halfyard J. opined that:

An injunction is an equitable remedy and is in the discretion of the court. A number of factors may be relevant in any particular case. A plaintiff must always prove that damages would not be an adequate remedy, and that the balance of convenience favours the plaintiff over the defendant. I think it is also necessary to establish that an injunction is necessary to prevent continuation of the wrongful conduct, and that the order sought could be enforced.

This is not to say, however, that a mandatory order can never be made in circumstances where the evidence fails to disclose a possible fix.  Courts have a wide discretion in framing the terms of a mandatory order, and in some cases the court has adopted a flexible approach which permits it to grant the injunction but then suspend the operation of the injunction for a period of time, during which the defendant is expected to take steps to abate the nuisance.

There is authority that a mandatory injunction is an extreme remedy and that the plaintiff’s right to a mandatory order will be strengthened if he/she can show a very strong probability on the facts that a “grave damage” will accrue in the future: Redland Bricks, supra, at 665.

Prepared by former WT associate, Scott Twining.