Case information

Torts — Nuisance — Unlawful exercise of statutory powers — Whether a use of land by the defendant is a necessary element of actionable nuisance — Whether conduct that would otherwise constitute actionable nuisance is immunized from liability where a public authority is acting under regulatory power that is unlawful or ceases to be lawful.

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The applicants purchased houses in a subdivision in an area at risk for the development of sinkholes. Following the appearance of a large sinkhole, the District of Sechelt evacuated the residents of the subdivision pursuant to the Emergency Program Act, R.S.B.C. 1996, c. 111. The district declared a State of Local Emergency, which the respondent province continuously renewed. The province also provided the district with funding for the construction of a permanent fence that surrounded the subdivision, depriving residents of access to their properties. Some residents claimed that the province was liable in nuisance. The trial judge found that that the province unlawfully exercised the statutory powers permitting the direct regulation of the applicants’ use of property. He concluded that the province unreasonably interfered with the applicants’ use and enjoyment of their property in a manner that fell within the tort of nuisance. The applicants were added as parties to the appeal. The Court of Appeal allowed the province’s appeal. It concluded that a defendant government entity must, at a minimum, be engaged in a use of land in order to attract liability in nuisance. As this case did not involve the competing uses of land, the claim did not fall within the scope of the tort of nuisance.