Case information

Torts — Nuisance — Crown law — Crown liability — Can an interference grounding a claim in nuisance arise out of the regulation of activity by the Crown under contract where there is no competing use of land?

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The province of Manitoba owns the land within Grand Beach Provincial Park. Since 1990, Manitoba has allowed Grand Beach Management Services Inc [“GBM”] to sell alcohol in their restaurant and patio — the Surf Club — located on park grounds. Manitoba retained the right to set the days and hours of operation of all business activities under the lease to GBM. Over the years there were complaints from near-by cottage owners about late-night noise, traffic, and dispersal issues at and after closing, including rowdyism, vandalism, and violence. Manitoba undertook various measures over the years to address the problems, including holding meetings with the cottage owners, mandating adjustments to the Surf Club’s hours of operation, and the provision of additional policing and security services at closing time. Finally, in 2003, GBM was advised that Surf Club’s hours of operation would have to cease at 11pm, consistent with the policy within all provincial parks of having quiet time between 11pm and 9am. GBM started an action in contract and tort in August 2006. In 2011, Manitoba filed a motion for summary judgment, which was granted, dismissing the claim on the basis that there was no genuine issue for trial. On appeal to the Manitoba Court of Appeal it was found that the motion judge made errors in his assessment of the case law and legal test. The appeal was granted and the matter returned for trial.