Dear Neil:

In response to your question 2.  The defence of statutory authority rests on the normative foundation that it is not open to the executive to expropriate a person's rights without authorization of legislation. The courts have decided that this authorization can be explicit or implicit. In Canadian jurisprudence such a confiscation is only implicitly authorized as follows:

The burden of proof with respect to the defence of statutory authority is on the
party advancing the defence. It is not an easy one. The courts strain against a
conclusion that private rights are intended to be sacrificed for the common good.
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. (Tock v. St. John's Metropolitan Area Board,
[1989] 2 S.C.R. 1181).

So the fact that there are broad public benefits to the new transportation system is irrelevant without the backing authorization and a common law judge is mandated to decided if another method of construction was feasible (largely disregarding costs).  I am not sure that the court got this part of their judgment wrong though I think that they were too easy on the city.  The more important point to my mind is that the judges fail to see the incongruence between liberally applying social utility in determining whether something is a nuisance and then being strict (against the defendant) in construing the defence of statutory authority.  As one of my students pointed out, under the 'modern law' the government would in many cases do better proceeding without any authorization and just arguing social utility to negate the nuisance claim. In fact, the only reason why the court did not decide this way in Heyes was because they determined that the nuisance question was one of fact and the trial judge had said (unconvincingly to my mind and theirs) that the social usefulness did not out-way the damage to her business.  The traditional law seems better to me (ie that social usefulness, outside the realm of targeted malice, is irrelevant to whether or not a nuisance has been committed) and more respectful of the separation of powers.  This is not too hard on governments since they can always explicitly authorize the creation of nuisances or can retroactively determine that a project was built with statutory authority (as has happened on several occasions).

Cheers,

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

On 4/20/2011 7:02 PM, Neil Foster wrote:

(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.