Three Major Recent Cases on Land Torts

Explore some important decisions on property-related tort actions

Nuisance is a tort that involves someone interfering with someone else’s use or enjoyment of land. A nuisance is generally not actionable unless the interference is unreasonable and the plaintiff suffered some damage.[1] A sister action is based on the rule in Rylands v. Fletcher, which holds a defendant strictly liable (i.e., liable whether or not there was negligence or intent to harm) for damages caused by an escape of something from his/her property that is attributed to a nonnatural use of land.[2] Lastly, there is a statutory cause of action under the Expropriations Act, 1990 RSO, c. E.26, s. 21,[3] for injurious affection, which occurs when the defendant’s activities interfere with the claimant’s occupation or enjoyment of land, if the claimant can meet three requirements: i) the damage must result from action taken under statutory authority; ii) the action would give rise to liability but for that statutory authority; and iii) the damage must result from the construction and not the use of the works. Stage ii) involves an analysis of whether the action taken would constitute the tort nuisance.[4]

In Smith v. Inco Ltd.,[5] the plaintiffs, members of the Port Colborne community, brought a class action against the defendants, who had operated a nickel factory in the industrial area of the city from 1918-1984. Nickel particles had emitted from the factory and became part of the soil on the plaintiffs’ properties. A 2004 Ministry of Environment study, about nickel levels in the soil, had caused public concern. The plaintiffs accused the defendants of nuisance, of causing an unreasonable interference with their use and enjoyment of property and damage to their property and for nonnatural use of land. The trial judge granted the plaintiffs’ claim and awarded damages. The Ontario Court of Appeal reversed this decision. The trial judge had erred in finding as a fact that the defendant’s actions caused physical damage to the plaintiffs’ properties; the discharge of nickel particles into the soil did not amount to physical damage to the properties, did not pose any health risks and did not have any impact on the plaintiffs’ ability to use their land. And the trial judge had erred in finding that the defendant’s operation of the refinery was a nonnatural use of land; instead, the defendants operated the factory in a highly industrialized area of the city in a manner that was ordinary and usual and did not create a risk beyond those that are incidental to virtually any industrial operation.

In Antrim Truck Centre Ltd. v. Ontario (Transportation),[6] the plaintiff, who owned a property on Hwy 17 near Antrim on which it owned and operated a restaurant and gas bar from 1978 to 2004, sued the defendant, the Ontario Ministry of Transportation, for its construction activity nearby. The Ministry had opened a new section of Hwy 417, which ran parallel to Hwy 17, near the affected land. The construction severely restricted access to the plaintiff’s truck stop so that it was effectively put out of business. The plaintiff sued the defendant for injurious affection. The Ontario Municipal Board granted the plaintiff’s claim and awarded damages. On appeal by the defendant, the Divisional Court affirmed the Board’s decision. However, on further appeal, the Ontario Court of Appeal set aside the Board’s decision, finding that it had erred in its analysis of nuisance by omitting certain factors. The Supreme Court of Canada allowed the plaintiff’s appeal. When an interference with the private use and enjoyment of land results from construction which serves an important public purpose, the reasonableness of the interference is determined by balancing the competing interests. The balance is struck by answering the question of whether, in all the circumstances, the individual claimant has shouldered a greater share of the burden of construction than it would be reasonable to expect individuals to bear without compensation. In this case, the SCC found that the plaintiff had – since the interference with its use and enjoyment of land inflicted significant and permanent loss.

In 1317424 Ontario Inc. v. Chrysler Canada Inc.,[7] the plaintiffs brought an action against the defendant in relation to a property located in Sarnia that was owned and operated by Holmes Foundry Ltd. and Holmes Insulation Ltd. from the 1950s to 1982. Holmes’ activities included, among other things, producing insulation containing asbestos, which severely contaminated the surface area. In 1981, the property was sold to Canadian Fabricated Products Ltd.; in 1987, to Chrysler (which remediated the land up to the environmental standards existing at the time); in 1989, to D’Andrea Group Inc.; and in 1999, to the plaintiffs. The plaintiffs accused the defendant of negligence in decommissioning the property and failing to remediate it, negligent misstatement that it had properly remediated the land, and the creation of a stigma to the land. In this particular decision in this case, the Ontario Court of Appeal upheld the motion judge’s order declining to give the plaintiffs leave to amend the statement of claim to add nuisance as a cause of action. The issue was whether a claim in nuisance can be made when the nuisance emanates from the plaintiff’s own land and not from outside the land. The Ontario Court of Appeal determined that it was an essential characteristic of the tort that the interference with the plaintiff’s land be indirect and not direct – i.e., it must originate elsewhere than on the plaintiff’s land. This distinction is not a mere technicality, but reflects the modern law of nuisance as a means of reconciling conflicting interests in connection with competing interests in land. Since the cause of action sought to be added had no reasonable chance of success, the request to amend the pleading was declined.

[1] Philip H. Osbourne, “Chapter 6: Nuisance”, The Law of Torts, 6^th ed. (Toronto, ON: Irwin Law Inc., March 9, 2020)

[2] Ibid.

[3] Expropriations Act, RSO 1990, c. E.26, s. 21 (https://canlii.ca/t/5537b)

[4] Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 (CanLII), para. 5 (https://canlii.ca/t/fwdn1)

[5] Smith v. Inco Ltd., 2011 ONCA 628 (CanLII) (https://canlii.ca/t/fnc0x)

[6] Antrim Truck Centre Ltd. v. Ontario (Transportation) (https://canlii.ca/t/fwdn1)

[7] 1317424 Ontario Inc. v. Chrysler Canada Inc., 2015 ONCA 104 (CanLII) (aka French v. Chrysler) (https://canlii.ca/t/gg9bc)