Dear Neil:
My underlyinng point is that according to the traditional cases, harm or unreasonable interference by itself is not enough to ground a nuisance--if it was a whole litany of cases such as Braford v Pickles, Fontainebleau, Victoria Park Racing, Hunter v Canary Wharf would have to be decided differently. The court in Heyes doesn't understand this even when one of the concurring judges points this out. I find that sad.
What is it then that you need to have a complete nuisance claim? I think that the best understanding is that you need a right to everything that you claim has been interfered with and this interference has to be unreasonable. So the clain fails in Pickles becuase people do not have a right to percolating water not yet on their land, the claim fails in Fontainebleau since there is no right to light, the claims fails in Victoria Park since their is no right that your land has a particuluar value, the claim fails in Hunter since their was not an easement to recieve TV signals.
What right was infringed in Heyes? She could still get on her property and nothing the city did emanated onto her land, so it is not her right to the land that was in issue. Her real complaint is that her customers could not or would not get to her. Does she own her customers? No. Does she have a public right that they be allowed to use the road for her benefit? Probably not (since the public right is that the customers be allowed to use the road for their benefit). But even if she did have this right, the legislation says that a city may close a road and therefore remove a public right and they did so. So it seems that her case fails on the preliminary issue of rights infringement before we even get to the unreasonable interference stage.
I'll see if I can answer question 2 a little later.
----- Original Message -----
From: Neil Foster <Neil.Foster@newcastle.edu.au>
Date: Wednesday, April 20, 2011 7:09 pm
Subject: Re: ODG: Nuisance and Statutory Authority in Canada
To: Jason Neyers <jneyers@uwo.ca>
Cc: obligations@uwo.ca
> 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
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> fax 02 4921 6931
>
> > > > > > >
--
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435