On-Site Magazine
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Neighbours can be a nuisance


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November 1, 2011 by Chris Eagles and Brad Woods

Everyone has the right to the enjoyment and use of their land. A wrongful interference with that right is called nuisance. A nuisance occurs when an act indirectly causes physical injury to property or substantially interferes with the use or enjoyment of an interest in land and where the injury or interference is unreasonable. Property owners and contractors owe an obligation to their neighbours not to cause a nuisance to their properties.
 
The Supreme Court of Canada recently denied leave to appeal to the owner of a Vancouver store affected by the construction of the Canada Line light rail system. Although much attention has been paid to the trial and appeal court decisions, the case did not change the risk of a potential nuisance action against non-governmental parties involved in construction projects.  The case does, however, provide an important reminder of the risk of potential nuisance claims and steps to mitigate them.

In Susan Heyes Inc. vs. South Coast B.C. Transportation Authority, Heyes was originally awarded $600,000 by the B.C. Supreme Court for nuisance to her store’s business caused by construction of the Canada Line, a rapid transit line between downtown Vancouver and the airport. The Court of Appeal allowed an appeal from this decision, finding the trial court’s decision ignored the fact that this was a project authorized by public statute, which provides a defence to a nuisance claim where the government proves the nuisance was the inevitable result or consequence of exercising that authority.
 
Of course, many construction projects are not public projects authorized by statute.  Where a construction project is not authorized by statute, parties involved in the construction project must consider and attempt to prevent potential nuisance claims.  Even where the project is for government, careful attention must be given to the nature of the work and the specific statutory defence as this is not always clear and varies from province to province.
Nuisance and trespass are often confused. Trespass requires a direct encroachment upon the land of another without lawful justification, such as placing, throwing or erecting some material object upon land without a legal right to do so. Noise, for example, could only be a nuisance (and not trespass) since it does not result in any physical encroachment. Additionally, trespass claims to remove encroachments do not need actual damage to have occurred-nuisance claims require proof of actual damages.

Nuisance and trespass are both “strict liability” torts. The injured party does not have to prove the other party was negligent. Rather, they just need to show that the defendant has unreasonably and substantially interfered with the plaintiff’s reasonable use and enjoyment of their  land. Obviously, what is unreasonable in one circumstance (a house being demolished in a residential neighbourhood) may not be in another (a house being demolished in the middle of an unpopulated island).

The party liable for nuisance will generally be the party causing the nuisance. Hence, it is usually a contractor rather than the owner that hired them that would be liable, unless the work was unlawful or of a nature likely to involve injurious consequences to others. Where the work is likely to cause such consequences, an owner may be liable for a nuisance caused by its contractor.
Something as minor as dust has been found to constitute nuisance in the context of a construction project. In Hare vs. Liuza, the Ontario Superior Court of Justice found that, Luiza created a large quantity of dust while installing a new walkway, causing her neighbour’s newly installed walkway to discolour. Given that the neighbour had suffered real damages through the discolouration of her walkway, the nuisance was not minor and therefore actionable.
If a claim in nuisance is successful, a court may award damages or grant an injunction preventing further construction until the source of the nuisance is dealt with. In considering the appropriate remedy for the particular nuisance, a court will take into account the behaviour of the parties, whether monetary compensation is adequate and the degree of interference caused.

When involved in construction activities that may impact other persons, owners and contractors should take reasonable steps to work with neighbours to reduce the potential impacts to their properties from the construction. Parties to a construction agreement may also wish to turn their minds to the allocation of risk associated with damage claims or work stoppages due to nuisance claims by neighbours.
 
This column is provided for general information only and  may not be relied upon as legal advice. Send comments to  editor@on-sitemag.com.


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