From: Jason W Neyers <jneyers@uwo.ca>

Sent: Monday 22 July 2024 15:12

To: obligations

Subject: ODG: Nuisance as an interference with the abstract useability of land

Dear Colleagues:

Those of you interested in nuisance will be interested in the BCCA s decision in British Columbia (Minister of Public Safety) v Latham, 2023 BCCA 104. In that case the Province, in response to the appearance of sinkholes in a subdivision, extended a state of emergency ( the SOLE ) without statutory authority under the relevant act (the EPA ) and provided funding to the District for the construction of a fence that prevented the plaintiff s from accessing their property in that subdivision. The plaintiffs sued, on the authority of Antrim, claiming that the Province had committed a nuisance. The court denied the claim as follows:

91   it would logically flow from the respondents' theory, which is implicitly accepted by the trial judge, that every order issued under the EPA that substantially and unreasonably interferes with the use of private property would be prima facie actionable in nuisance, subject to the defence of statutory authority. In fact, they concede as such: at para. 62 above. In other words, liability in nuisance would arise automatically from a finding that the exercise of such powers was unlawful in an administrative law sense. Furthermore, the scope of this new form of tort liability would not be restricted to powers under the EPA. Liability in nuisance could arise from orders, policies, authorizations, and other decisions made pursuant to any legislation that authorizes a substantial interference with the use of private property regardless of whether the government entity in question has made any use of land. All that would be required to establish liability in nuisance is a successful application for judicial review. In my view, this unbridled expansion of the tort to include "regulatory nuisance" is unprincipled and contrary to the existing jurisprudence.

94  In light of the authorities discussed above, I would conclude that a defendant government entity must, at a minimum, be engaged in a use of land in order to attract liability in nuisance. It is not sufficient for competing uses of land to be involved in a general sense. I would also conclude that the tort of nuisance does not extend to regulatory action by a public body that directly interferes with a claimant's use of land, even where those decisions are subsequently found to be unlawful in an administrative law sense. In my view, it makes no difference to the analysis whether one focusses on the Minister's extensions of the SOLE or on the Province's contribution to the funding of a fence.

95  Here, there is no suggestion that the Province owned, occupied, or made use of land from which a nuisance emanated. The source of the alleged nuisance -- the Province's interconnected extensions of the SOLE and funding of the fence - - involved an exercise of its statutory powers, a regulatory response under the EPA to the geotechnical instabilities in Seawatch. Whether or not a portion of the fence may have been constructed on adjacent land, the purpose of the fence was to directly impede the respondents' access to property as a means of enforcing the evacuation order. Furthermore, it was the District, not the Province, that arranged for its construction: Reasons at para. 7. I do not consider purely regulatory activity impacting land, without more, to be a "use" of that land that could attract liability in nuisance.

96  To state my conclusions in a somewhat different way: this case does not concern competing uses of land, but rather a government body's exercise of emergency powers to directly regulate the respondents' properties. Respectfully, the judge therefore erred in law in concluding that the Province could be liable in nuisance for its regulatory actions in these circumstances.

The result seems totally inconsistent with theories that view nuisance solely as protecting interferences with the abstract useability of land, but seems intuitively correct to me (especially if we ignore the fence and just assume a sign was used rather than a physical barrier). I would explain that result by saying that (without the fence) their would be no physical interference with any of the plaintiff s rights to land (their column, their natural rights or acquired rights) rather than relying on no land use (as does the court) but the result would be the same as that gotten by the court. Could abstract useability theories explain the result?

Sincerely,

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

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