1) The Definition of a Public Nuisance

The common law definition of a public nuisance has found its way into the Criminal Code [Note 44: R.S.C. 1985, c. C-46.] as a common nuisance. Section 180(2) of the Criminal Code states:

[E]very one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby

(a)		endangers the lives, safety, health, property or comfort of the public; or
(b)		obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.

This definition captures the common law meaning of public nuisance and illustrates the extreme generality of the concept. It covers a wide range of eclectic activities and it is very difficult to give the concept greater clarity and precision than is found in section 180(2). Some further guidance is, however, provided by the recognition that public nuisances generally fall into two broad categories. [Note 45: R.A. Buckley, The Law of Nuisance, 2d ed. (London: Butterworths, 1996) at 67.]

The first category includes interferences with the rights and interests of the public which all persons share in common. The classic examples of public nuisances in this category include obstructing a public highway with a stalled motor vehicle, barriers, protest marches, excavations or heavy smoke, blocking access to a public park, blocking a navigable waterway, polluting a river or stream, polluting the air with smoke and fumes, obstructing a public sidewalk with temporary structures, demonstrators or line-ups of people, selling food that is unfit for human consumption, and running a bawdy house. These are all instances of either an interference with public rights of way or an interference with the public's interest in property, safety, health, or comfort. It is not, however, every trivial interference with the public's rights that amounts to a public nuisance. A degree of tolerance and a spirit of give and take is as necessary in this context as it is in private nuisance. Consideration must be given to all the surrounding circumstances, including the utility of the defendant's conduct, the nature and extent of the interference with the public's rights and interests, and the burden of avoiding or abating the nuisance. A temporary obstruction of a street to deliver goods, the closure of a highway to carry out repairs, and the partial obstruction of a sidewalk with construction scaffolding are unlikely to amount to a public nuisance. In this category of public nuisance there is less emphasis on the number of persons directly affected. An obstruction of the highway or the pollution of a river may directly affect only a few people but, nonetheless, the right of the public to passage on that highway and the right of the public to fish in that river have been infringed and the courts are not hesitant to find a public nuisance.

The second category of public nuisance arises from a widespread interference with the use and enjoyment of private land. In this situation, a public nuisance arises where the defendant's activities have created multiple private nuisances that may be remedied either by each landowner as a private nuisance or, cumulatively, by public remedies as a public nuisance. The primary problem in this category of cases is to decide, in the particular circumstances, how many private nuisances make a public nuisance. One approach suggests that a combination of private nuisances become a public nuisance when they affect a "class" of persons or a "neighbourhood." [Note 46: Attorney General v. P.Y.A. Quarries Ltd., [1957] 2 Q.B. 169 (C.A.) at 184, Romer L.J.] There is no precision in these terms but the cases seem to suggest that a combination of somewhere around ten private nuisances is normally sufficient. Another view suggests that there is a public nuisance where the interference with private property is so widespread in its range and so indiscriminate in its effect that it may reasonably be characterized as a public responsibility [Note 47: Ibid. at 191, Denning L.J.] that should be remedied by governmental rather than private action.

In most cases the two approaches will lead to the same result. A public nuisance has, for example, been recognized where a quarry caused dust, noise, and vibrations to many landowners over a widespread area [Note 48: Ibid.] and where the operation of a training centre for ultra- light aircraft caused high noise levels and disturbed residents in a rural area. [Note 49: Manitoba (A.G.) v. Adventure Flight Centres Ltd. (1983), 22 Man. R. (2d) 142 (Q.B.).] In Ontario A.G. v. Orange Productions Ltd., [Note 50: [1971] 3 O.R. 585 (H.C.J.).] an injunction was issued where a planned rock concert, in the light of past history, was likely to be plagued by excessive numbers of people, noise, dust, lack of sanitation, and rowdy conduct, all of which would interfere with the enjoyment of the neighbouring landowners. In each of these three cases, a substantial number of persons were affected and governmental intervention was warranted to stop the public nuisance.

These two categories may not exhaustively describe all public nuisances but they do identify the situations that arise most frequently and they also indicate that the term covers both situations that bear little relationship to the tort of private nuisance and situations where the public nuisance arises from a multiplicity of private nuisances.

2) Remedies

Both public and private remedies are available for a public nuisance. Public remedies include a criminal prosecution under section 180 of the Criminal Code, an action by the attorney general for an injunction, and a relator action where the attorney general empowers a private citizen to seek an injunction in the name of the attorney general. The most common public remedy, and normally the remedy of choice for those affected by a continuing public nuisance, is an injunction secured by the attorney general.

Private tort remedies arise in two ways. Where the public nuisance arises from a combination of discrete private nuisances, the individual occupiers may personally bring an action for an injunction or damages relying on the tort of private nuisance. All other kinds of public nuisance give rise to an independent action for damages (or an injunction) for members of the public who suffer special or particular damage as distinct from the inconvenience and loss suffered by members of the public generally. The restriction of private tort actions to those who have suffered special damage acts as a control device to prevent a flood of private actions brought by every member of the public who has suffered similar and often trivial losses. Consequently, a member of the public who has been inconvenienced by an obstruction of the highway has no claim, but a person who suffered personal injury from the obstruction does have a claim for her special damage. In this context, personal injury, damage to property, depreciation in the value of land, loss of business, and economic loss qualify as special and particular damage so long as the loss is foreseeable and is not suffered by the public at large.

The conventional view in Canada is that greater damage of the same kind as that suffered by the public generally does not qualify as special and particular damage. A distinction has been drawn between harm that is merely of a greater degree than that suffered by the general public and harm that is of a different kind from that suffered by the general public. This rule was applied in Hickey v. Electricity Reduction Co. of Canada. [Note 51: (1970), 2 Nfld. & P.E.I.R. 246 (Nfld. S.C.).] In that case, the plaintiffs were commercial fishermen whose livelihood was adversely affected by the pollution of Placentia Bay, Newfoundland. The pollution arose from the discharge of toxic chemicals into the bay by the defendant. The plaintiffs'claim fordamages failed on the grounds that the defendant's actions had interfered with the rights of all citizens to fish in the bay. The plaintiffs' loss, while greater in degree, was essentially of the same kind. A similar approach was taken in Stein v. Gonzales [Note 52: (1984), 14 D.L.R. (4th) 263 (B.C.S.C.).] where the plaintiffs, owners of a hotel and an apartment block, sued the defendant prostitutes who congregated on the street and caused a loss of business. The Court refused to award damages. It was held that many businesses in the area had suffered business losses as a result of the defendants'activities and the plaintiffs' losses were not of a different kind.

There is some support for a more liberal approach that would allow an action for damages for those who have suffered more serious loss than that caused to the general public. This would appear to address sufficiently the indeterminacy issue and would enhance the power of the tort of public nuisance to address pollution of the environment. Indeed, the time may be ripe to dispense with the terminology of kind and degree completely and allow a claim for damages for actual physical or economic loss.

There is some uncertainty about the relationship between the private action for damages in public nuisance and negligence. Negligence is not an essential element of public nuisance but it has intruded noticeably in two situations involving personal injuries. The first deals with the complete or partial collapse of structures and buildings above or adjacent to a public highway or sidewalk. The requirement that negligence be proved has been explained on a number of grounds including the affinity of these cases with other highway accident cases, the analogy with the Sedleigh-Denfield v. O'Callaghan [Note 53: Above note 31.] principle which requires proof of negligence in respect of a private nuisance that does not arise from the defendant's positive act, and, more broadly, that negligence is required in cases where any damage is an inadvertent result of conduct that is not in itself a public nuisance. [Note 54: Klar, above note 33 at 529-30.] The second situation involves collisions with parked or stalled motor vehicles blocking or creating an obstacle on the highway. There has been a trend to resolve these personal injury cases on the basis of negligence. This trend has not, however, received any support from the recent Supreme Court decision in Ryan v. Victoria (City). [Note 55: Above note 38.] In that case, as we have seen, the plaintiff was injured when the wheel of his motorcycle became wedged in the flangeway gap at the inner edge of the defendant railway's tracks, which ran down the centre of a city street. The Court held that the unduly wide flangeway gap was an unreasonable interference with the public's right of access and constituted a public nuisance. The defendant was liable for the plaintiff's special damage.

CHAPTER 6, NUISANCE

			A. Introduction
			B. The General Framework of the Tort of Defamation
			C. The Elements of the Cause of Action

			G.		The Canadian Charter of Rights and Freedoms, Defamation, and the Law of the United States
			H.		The Next Challenge Political Speech

			D. Libel and Slander
			E. Defences