Dear Jason;
Thanks for the reference, this is an interesting case. But I am not quite sure of what you mean. You seem to be suggesting that the court should have focussed more on the "rights" rather than the harm. Can I ask:
(1) On the public nuisance question issue, are you saying that the store owner, once the city authorities had closed access to the relevant roads, no longer had a right of access to that road? And hence there could be no claim in public nuisance? (I assume you would also say that the owner had no "right" that the City not change the road rules, either.)
(2) On the private nuisance claim, it seems well accepted that a landowner has a prima facie right not to have their enjoyment of possession of land interfered with. But the law of private nuisance has always recognised that statutory authority can over-ride this right. Are you saying that the court should have read the statutory authority more narrowly?
To be frank, it seems to me that the outcome here, while very tough on the shop-owner, is probably about right given the broad public benefits of the new transportation system- and it does seem a bit odd for a common law judge be deciding (contrary to the City authorities who presumably have to make the decision not only on engineering grounds but a whole lot of social, economic and political grounds) that one method of construction was better than another.
Regards
Neil
On 21/04/2011, at 5:17 AM, Jason Neyers wrote:
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
Neil Foster,
Senior Lecturer,
Deputy Head of School & LLB Program Convenor,
Newcastle Law School,
Faculty of Business & Law.
MC158, McMullin Building,
University of Newcastle, Callaghan NSW 2308 AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931