Dear Colleagues:

As many of you may know, there has been a great debate about whether special damage requires proof of a difference in kind as opposed to merely a difference in extent.  In Canada, most people would point to decisions such as Hickey v. Electric Reduction Co. of Canada Ltd. (1970), 21 D.L.R. (3d) 368 (Nfld. S.C.) as establishing that a difference in kind required in Canadian law.  Hickey, however, has recently been overruled by the NLCA in George v Newfoundland and Labrador, 2016 NCLA 24:

111     I should comment on two further arguments raised by the Province, first that the appellants have not proven special damage and, second, that the Province has statutory immunity. A private cause of action for a public nuisance will only be sustainable where claimants prove 'special damage' beyond that suffered by the public at large. Spencer, at p. 74, states "few points in civil law are more obscure than the meaning of "special damage" in the context of public nuisance." He goes on to discuss how it may refer to the kind of damage suffered (which he says clearly includes personal injury) or damage which is something worse in degree than the general public has suffered (again, which, in his opinion, would include personal injury). Questions of entitlement to sue arise if many other people have suffered the same or worse damage. …

113     Linden submits that "special damage" means "particular damage; a special loss suffered by an individual which is not shared by the rest of the community." Linden suggests that while at one time the courts required a difference in kind and degree, "the more modern view is that recovery is permitted in either case, as long as the damage to the plaintiff is 'more than mere infringement of a theoretical right which the plaintiff shares with everyone else.'" Proof of personal injury, he says, has been considered sufficient in this regard.

114     Spencer notes the case of Hickey, where the Court, in a case involving fishers suing a company which had polluted part of Placentia Bay, destroyed fish and deprived the fishers of their livelihood, held they could not sue because others had suffered the same type of loss as they had. The Hickey approach is questioned by Linden, at pages 575-76.

115     Linden points to Gagnier v. Canadian Forest Products Ltd. (1990), 51 B.C.L.R. (2d) 218 (S.C.), when the Court, relying on three Ontario cases, concluded that Hickey was far too narrow and that all that should need to be proved is a difference in the degree of damage between the plaintiff and members of the public generally. Linden also touches upon distinguishing between direct and indirect loss, the remoteness test and exposing defendants to possible indeterminate liability. I agree with Gagnier that a difference in the degree of damage should be a sufficient basis for recognizing the right of an individual to sue in public nuisance. I would not follow Hickey and I would adopt "the more modern view" discussed by Linden.

Sincerely,

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)