Case information

Torts — Nuisance — Unlawful exercise of statutory powers — Whether the two-part test set out for nuisance in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, applies to government entities — Whether there should be an additional test for nuisance for government entities — If an additional test for nuisance for government entities is necessary, what additional elements should be requirements under that test — Whether an unlawful purported exercise of statutory power can immunize a government from an otherwise valid claim in nuisance.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

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. The applicants 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 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.