A private nuisance occurs when a party unreasonably interferes with a person’s enjoyment of their property. The alleged interference may be caused by sounds, odours, vibrations, smoke, dust, the activities of a neighbour, etc. This article will explain what constitutes a private nuisance, and the factors to consider before bringing a private nuisance claim.

Different Types of Nuisances

A private nuisance is different than a common or public nuisance. A common nuisance is a criminal offence under s. 180 of the Criminal Code, and occurs when an individual commits an unlawful act that causes injury or endangers others. 

A public nuisance is any activity that unreasonably interferes with the public’s health, safety, morality, comfort or convenience (Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 SCR 201). A private nuisance claim is more narrowly focused on whether an activity has interfered with a claimant’s enjoyment of their property, not the public.

The Legal Test for Private Nuisance 

Courts apply a two-part test when determining whether an activity represents a private nuisance. The alleged interference must be both (1) substantial, and (2) unreasonable (Antrim Truck Centre Ltd. v. Ontario, 2013 SCC 13, at para 19)

• (1)  The Interference Must be Substantial
  A substantial interference with property is “one that amounts to more than a slight annoyance or trifling interference” (Antrim Truck Centre Ltd. v. Ontario, 2013 SCC 13, at para 22).

  As La Forest J. put it in Tock v. St. John’s Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181, actionable nuisances include “only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes”.

  The key question is not whether you feel the interference is significant (since we all have pet peeves and unique tastes) but whether it would be intolerable to the average, ordinary person.

• (2)  The Interference Must be Unreasonable 
  If a Court finds that the interference is substantial, it will assess whether it is unreasonable under the circumstances. It does this by performing a cost-benefit analysis: it balances the utility of the defendant’s conduct against the gravity of the harm it causes.

  The Court can consider any criteria it deems relevant when performing this analysis, but Courts consistently consider the following characteristics: (a) the severity of the harm, (b) the character of the neighbourhood, (c) the sensitivity of the plaintiff, and (d) the utility of the defendant’s conduct. 

• (a)  The Severity of the Harm
  
  Courts first consider the degree of harm caused by the defendant’s conduct. How loud is the noise in question? How bad is the odour being emitted by the defendant? How dangerous and toxic are the fumes being released?

  Courts also consider the frequency and duration of the interference. A relatively minor interference can be significant if it is constant. Conversely, some temporary inconveniences must be “accepted as part of the normal give and take of life” (Antrim Truck Centre Ltd. v. Ontario, 2013 SCC 13, at para 21).

• (b)  The Character of the Neighbourhood
  
  The reasonableness of the defendant’s conduct is assessed in the context of the parties’ neighbourhood. Conduct that is appropriate in an urban neighbourhood or a community with many shops and businesses may not be reasonable in a more quiet and rural environment.

  This factor was considered in the landmark UK case Sturges v Bridgman (1879) LR 11 Ch D 852. In this case, a physician moved into a residential property and turned a shed in the back garden into a consulting room. The physician’s neighbour was a confectioner who made candy in their kitchen using industrial mortars and pestles, which were extremely loud and interrupted the physician’s consultations.

  The Court determined that whether or not an interference is an actionable nuisance depends, in part, on the locality and what is appropriate under the circumstances. Since the confectionary was operating in an otherwise quiet residential neighbourhood, the noise from the industrial mortars and pestles constituted a nuisance. 

• (c)  The Sensitivity of the Plaintiff 
  If the plaintiff’s own physical or mental make-up is “abnormally sensitive, recovery for nuisance may be denied” (Argo v. Degagne, 2006 CanLII 21771 (ON SC) at paras 21 and 22). The discomfort caused by the interference must be intolerable to any occupant of the premises, “irrespective of [their] position in life, age or state of health.”

  In the influential American case, Rogers v Elliott, 146 Mass 349, 15 NE 768, the defendant was the custodian of a church on a public street. The plaintiff was recovering from sunstroke, and one doctor attributed his convulsions to the sound of the church bell being rung. The Court held the sound of the bell was not a nuisance as the ringing did not affect the “health or comfort of ordinary people in the vicinity”.

  In short, if a plaintiff is highly sensitive, they must establish that an ordinary plaintiff would also find the interference intolerable. 

• (d)  The Utility of the Defendant’s Conduct 
  A Court will assess the benefit of the defendant’s conduct and balance it against the alleged harm. Was the interference an unavoidable consequence of the defendant’s important project or activity? The Court will also consider whether the defendant did their best to mitigate the impact of the interference. If they acted maliciously or spitefully towards the plaintiff, their defence may fail even if their project had utility.

  In the well-known case Miller v Jackson [1977] QB 966, the High Court issued an injunction preventing cricket from being played at a small cricket ground in Lintz, England. A couple living next to the cricket ground argued, among other things, that the cricket games were a nuisance.

  The decision was overturned on appeal after Lord Denning wrote a compelling decision. Lord Denning reasoned that cricket, which had been played on the grounds in Lintz for 70 years, had significant utility, and the defendant was a newcomer who failed to recognize its important value to the community:

  …now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house…

  Before bringing a private nuisance claim, consider the other side’s position and why, from their perspective, the interference may be justified. If the alleged nuisance has utility, and the plaintiff willingly “came to the nuisance”, the plaintiff may have a tough time arguing for the activity to be stopped. 

Defences to Nuisance 
 
If a plaintiff establishes that a defendant has unreasonably interfered with the enjoyment of their land, the defendant can still raise a defence. 
 

1. No-Fault
   The defendant is not liable if an unreasonable interference was caused by a third party, and the defendant could not foresee or prevent the nuisance from occurring.
2. Statutory Authority
   The defendant is not liable if the activity was required by statute and the resulting nuisance was unavoidable. Conduct that may have otherwise been deemed unreasonable may be lawful if it is authorized by statute. 

Justice La Forest wrote in Tock v. St. Johns that, “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” (Tock v. St. John’s Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181).
 
In other words, the defendant must show that there was simply no way of completing the work authorized by statute without interfering with the plaintiff’s property use. 
 
Remedies for Private Nuisance
 
In Canada, Courts generally award either an injunction, which is an order that the defendant must immediately stop the conduct causing the nuisance, or damages. The Court will apply its discretion to determine whether it is appropriate to order an injunction or simply order financial compensation. 
 
Courts may order damages instead of an injunction if the nuisance is temporary, a mandatory injunction is not necessary to halt the harmful activity, or it would be oppressive to grant an injunction under the circumstances. 
 
Contact a Lawyer Today

If your privacy has been invaded, contact a lawyer. The team at Cunningham Swan can help you assess the merits of your case and the options that are available to you. If you choose to bring a claim, we have the acumen and experience to advance your legal interests. We will work hard and advocate for you to maximize your chances of success. Call us today at

613.544.0211