Dear Colleagues: 

 

Those of you interested in Nuisance and the defence of statutory authority will be interested in the recent decision of the BCCA in Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority, 2011 BCCA 77 (http://www.canlii.org/en/bc/bcca/doc/2011/2011bcca77/2011bcca77.html). In Heyes, the court overturned a $600,000 judgment awarded to a local store owner, who was driven out of business by prolonged traffic closures during construction of a subway line for the Vancouver Olympics.

 

The majority of the court concluded that although the long traffic closures amounted to a nuisance (since they were really really inconvenient), the defendants were saved by the defence of statutory authority since the method of construction used (although there were others) better served the public interest being cheaper and less disruptive overall.

 

Justice Saunders would have held that there was no nuisance since there was no private or public right that had been interfered with (but concurred on the applicability of the defence of statutory authority).  Somewhat sadly, the majority couldn’t even understand the point Saunders was making: as they stated at [58], looking at rights would be ‘an unwarranted departure from the traditional approach to nuisance” which focuses solely on ‘the harm suffered by the plaintiff’. Perhaps even more disturbing was the fact that none of the judges were willing or able to distinguish between a private and public nuisance or explain why naked assertions of social utility are easily proven but the defence of statutory authority must be strictly construed.

 

The sad march of Canadian private law continues.

 

--
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435