Legal Advice

Nuisance Law

"Sic utera tuo ut alienam non laedas" said the Romans: use your property in such a fashion so as to not disturb your neighbours. Doing otherwise constitutes "nuisance" under tort law.

Nuisance is divided into "public nuisances" and "private nuisances" depending on the extent of the harm or annoyance. If the harm or annoyance is suffered by one or a particular group of people, it is a private nuisance. Public nuisances are those suffered by citizens generally or by a "substantial" number of members of the public. Hence, a public nuisance is really just a multiplication of private nuisances.

As Justice Linden points out in Canadian Tort Law (1993, 5th Edition, page 505), "most of the litigation about public nuisance is conducted in criminal court or by public officials, such as the attorney-general, as representative of the common good."

Where a nuisance is "public", civil litigation is the exclusive right of the attorney-general. If the attorney-general declines to sue for public nuisance, there is no cause of action for the private citizen except for "special damages": distinct damages to an individual's property over and above the general suffering to the population at-large.

Most cases of private nuisance involve land. For example, the Canadian Encyclopedia Digest (Western) at, page 95-443 states that "the essence of the tort of private nuisance is that the defendant has unreasonably and substantially interfered with the plaintiff's reasonable use and enjoyment of his land." Some common examples are the malfunctioning of sewage systems, highway noise or vibration.

The word "unreasonably" is very important in the above description. A court would assess the reasonableness of any nuisance based on what would be tolerated by the ordinary occupier. The standard is the ordinary man, which means that abnormal sensitivities may prevent a claim if the nuisance would not have otherwise unreasonably interfered with an ordinary occupier. Nor would it be necessary to prove fault on the part of the defendant (nuisance is not a branch of the law of negligence.)

The court will weigh the inconvenience to the plaintiff against the usefulness of the defendant's conduct under the circumstances.

The tort action of "nuisance" will not address trivial inconveniences. The interference must be substantial. It is not always easy for the courts to determine whether the interference complained of it "substantial" or not. For example, the building of a hospital next to a person's land was held not to be a nuisance. The same conclusion was made for the building of a highway next to property or the erection of a house which blocked a view. However, courts have found dust from a sawmill, noise from a racetrack or even funeral parlours as nuisances to neighbours.

If the damages are tangible or a "material injury to property", this helps a plaintiff. The circumstances are of invaluable assistance also. For example, the dust from a saw-mill would be less tolerable in a residential district than in a industrial park. Also, a single incident of unreasonable interference will suffice, as Canada's Supreme Court decided in Tock v. St. John's Metropolitan Area Board in 1991.

ny occupier may sue for nuisance; not just landlords, but tenants as well.

Defences

Nuisance is a peculiar tort as it is one of "strict liability." This means that once the damages and causation have been proven, it is no defence to argue that you'd taken all reasonable precautions.

If a nuisance has been caused on the basis of legislative authority, there is no liability. Canadian courts have been reluctant to excuse defendants on this basis and if a court can conclude that the legislative mandate could have been exercised without the nuisance, it will impose liability. In Tock v. St. John's, a 1991 Supreme Court of Canada decision, Justice Wilson wrote that the language of the legislation is all-important. If the language imposes a duty on a government agency to do something ("mandatory") and the nuisance is the inevitable consequence of the exercise of that statutory duty, then no action for nuisance lies. BUT if the legislation is permissive in that it gives the public authority a discretion "not only whether to do the thing authorized, but how to do it and in what location, then if it does do the thing authorized, it must do it in a manner and at a location which will avoid the creation of a nuisance." [See also Government Liability in Canada.]

Moreover, a defendant cannot argue that a certain interference was in fact for the public good; it must have legislative authority for it to benefit from this defence.

Two other defences, closely related, are (1) where a statute provides that nuisances continuously committed for a certain period of time (eg. 20 years) attain "prescriptive rights"; and (2) where the plaintiff agreed, implicitly or explicitly, to the nuisance.

Remedies

The normal remedy for a nuisance is an injunction, which is an order of the court to the defendant to cease and desist certain conduct or to do something specific.

Nuisance may also give rise to damages where, in the words of Shelfer v. London Electric Lighting Co. (1895) 1 Ch. 287):

1.The injury to the plaintiff's legal rights is small; 2.And is one which is capable of being estimated in money; 3.And is one which can be adequately compensated by a small money payment; 4.It would be oppressive to the defendant to grant and injunction.

Mediation: How it works

The WWLIA wishes to thank Joanne H. Goss for the use of this text. Ms Goss is a lawyer, arbitrator and chartered mediator practising ADR with the law firm of Cook Duke and Cox in Edmonton, Canada. She teaches ADR at the University of Alberta Law School. Readers are invited to consult Alternative Dispute Resolution (ADR) - An Introduction, also written by Ms Goss, as an introduction to this article.

Mediation is a process of dispute resolution focused on effective communication and negotiation. The mediator acts as a facilitator assisting the disputing parties in communicating and negotiating more effectively, thereby enhancing their ability to reach a settlement. It is not the mediator's role to adjudicate the issues in dispute and indeed the mediator has no authority to do so. Mediation is not a process to force compromise, although compromise is an element of the process. Each party's limitations are respected and a party is only expected to make a shift in its approach to the problem if it becomes convinced that it is reasonable to do so.

Mediators generally approach the mediation process in a series of progressive steps which enable the mediator to move the parties effectively through the various stages of a negotiation process.

Introduction

Initially in mediation the mediator will explain to the parties the process of mediation, the role of the mediator as facilitator not adjudicator, and the role of the parties in working towards a solution. The mediator will attempt to create an atmosphere where the parties can feel free to discuss the issues in dispute between them openly.

Understanding the Issues in Dispute

The next two phases of the mediation process involve all of the parties having an opportunity to present their perspective on the issues in dispute to the other parties and the mediator, with the mediator attempting to ensure clarity. The mediator will work to clarify each party's understanding of the facts as well as identify assumptions with the parties that are not based upon fact and are not reliable for decision making. The mediator will also identify common ground between the parties, isolating what the parties agree upon and what they do not agree upon. In general, the mediator attempts to narrow the dispute down to its basic elements to make the process of generating possible solution ideas as variable as possible. Specifically, the mediator will focus the parties on their needs and interests, the reasons behind what they want, versus their positions, what they say they must have. The mediator will also attempt to ensure that each of the parties is understanding the dispute from the perspective of the other party as well as their underlying needs and interests, an essential prerequisite to the final stage of mediation where the parties in dispute attempt to come up with a way of resolving the issues effectively.

Reaching an Agreement

The final stage of mediation involves the mediator working with the parties to find a solution which is agreeable to each of them. Having already worked with the parties and developed an understanding among them of the perspective, needs and interests of the other party in the dispute, the mediator will at this point encourage the parties to brainstorm ideas, on a noncommittal basis, for how the needs and interests of both sides to the dispute could be met. This creates a much broader basis for putting a solution package together, pulling various ideas together from the solution options that have been generated. The mediator will usually assist in developing solution ideas but will refrain from controlling this process as the parties who are involved in the dispute are much more capable of knowing what the essential elements to a workable, long-lasting agreement are than the mediator. Generally, a mediator will not bend arms or lean on one party by telling them they are being unreasonable and that they should compromise as only the parties know what will work for them. The mediator will however lean on the parties to ensure that, if they are going to walk away from a solution package that has been generated, the other options which are available to that party are clearly better than the solution which has been placed on the table.

The time required to complete mediation varies according to the complexity of the issues being discussed. It can take less time if the parties are well prepared and understand their rights and obligations. If fewer issues are being discussed in mediation it can take less time. However, mediation can also take longer if the parties are highly emotional, do not understand their rights and obligations or simply need to discuss the issues at a slower pace in order to understand them more clearly. Because of the flexibility of the process, the mediator can accommodate all of these differences and move the mediation along at a pace with which the parties can be comfortable. Furthermore, the mediator can ensure that the discussions continue to move forward and toward resolution of the issues.

The benefits which have been identified with mediation are as follows: Effective Process: Mediation generally enjoys an 80%-85% success rate. Better Results: The resolution is created by the parties and is therefore tailored to their specific needs. This tends to result in a lower incidence of breach of the agreement reached. Speed: A mediation can be arranged in a relatively short period of time and has the effect of bringing settlement negotiations "to a head" much more quickly than negotiations directly between parties, resulting in a faster disposition. Cost: Time, money and emotion can be saved through early resolution of the dispute. Furthermore, the cost of mediation can be included with taxable costs and disbursements payable to the successful party. Choice of Mediator: A mediator can be chosen who has expertise in negotiation, effective dispute resolution and in the particular areas of dispute, which expertise may be of assistance to the parties in resolving the dispute. Problem Centred: The mediation process focuses on the interests and underlying concerns of the parties as opposed to their legal rights and remedies in searching for a resolution. Control: Each of the parties maintain control of the dispute and its resolution as they design the settlement and agree to live by it only if it is acceptable to them. Privacy: Mediation takes place in private and therefore the details of the dispute and its resolution need not be publicly disclosed. Freedom to Negotiate: Because the process is confidential and takes place on a without prejudice basis the parties have the freedom to develop and consider innovative settlement ideas. Enhanced Negotiations: The focus of a mediator on the negotiation process can help keep the negotiations on track and moving forward. Informal Atmosphere: The informal setting and atmosphere of mediation is conducive to effective communication between the parties on what each needs in the agreement. Improved Relationship: Can preserve or enhance the relationship between the parties.

Today, mediation is the most rapidily growing alternative to more traditional processes for dispute resolution. It is being actively utilized in almost every conceivable type of dispute. With an 80-85% success rate it is wise and relatively inexpensive to try mediation. The only error may be not to try.

Alternate Dispute Resolution - An Introduction

For more on ADR, you might want to visit NetLegal's page on the subject at http://www.netlegal.com/adr.html

LAWisdom: "I say, sir, that justice is truth in action." Benjamin Disraeli.