October 28, 2022

By Nick Melchiorre

In our first article explaining the law of nuisance, we explained the importance of the availability of nuisance as a private wrong or tort. It gives an alternative way of recovering damages against someone who causes you harm – usually a neighbour or near neighbour – without having to prove negligence or breach of a statutory duty.

We set out a brief definition of the law of nuisance in a quote from the case that we digested in the first article as follows:

Under the law of nuisance, the common law imposes liability against a tortfeasor (defendant) when the activities of a defendant unreasonably and substantially interfere with the plaintiff’s occupation or enjoyment of land. In tort law, it is the impact on the plaintiff and not the intent of the defendant which makes it actionable.

However, most nuisance situations involve situations much closer to that found in Sorbam Investments Ltd. v. Litwack.

Sorbam is a case arising from the migration of chemicals from one property underground to the neighboring property. Environmental cases of this sort are unfortunately very common. In some situations, there is a remedy for damages for breach of the Environmental Protection Act. In other cases, the innocent property owner may recover from the polluting neighbor in negligence. Negligence, however, requires not only proof of a duty of care in the standard of care, but also that the wrongdoer breached that standard of care causing the damage.

In Sorbam,the polluters had been dry cleaners who had rented the building that had long since gone out of business. The plaintiffs wanted to recover from the current owners of the neighboring polluted property who were not the owners at the time of the original pollution. The plaintiffs were unable to recover under the Environmental Protection Act (in an oversimplified explanation, because it only generally protects against the actual polluters or owners at the time).

In order for nuisance to be found against the current owners, they had to be aware of the contamination. As the trial judge pointed out: “A landowner is not responsible for any nuisance created by their tenants unless ‘the use from which the damage or nuisance necessarily arises was plainly contemplated by the lease’.”

So why was the owner liable in nuisance here? The trial judge also answers that question: “An owner of land who was not responsible for the creation of the nuisance may be liable if they continue the nuisance; that is, with knowledge of the nuisance, the landowner fails to take steps to put an end to the situation involving the nuisance.”

The Ministry of the Environment had brought the presence of the contamination to the current owners’ attention sometime after they acquired the property, and they took no steps to prevent further pollution. In other words, not only does nuisance not depend upon the intention of the neighbor, but the neighbour also has a positive duty to correct a problem in addition to preventing it.

That statement of law was not contested on the appeal, and though is not based on an Ontario appeal decision, it does rely upon a leading textbook, a British House or Lords decision (the highest appeal court at the time in Britain); and a British Columbia decision referred  to in some Ontario decisions, so it deserves some weight.

Based upon the factual findings by the trial judge, the Court of Appeal upheld the verdict both in negligence and nuisance.

Damages for nuisance are a complex issue that might deserve their own article. The wrongdoers were found at fault for the entire loss in value of the plaintiff’s property even though they had only owned the property for a portion of the time during which the pollution continued. The Court of Appeal refused to discuss whether in that situation the current owners should only be responsible for incremental loss after they became aware of the pollution. That argument had not been made at trial, where the wrongdoers had tried to prove factually that the groundwater flow was in their direction and that the pollution was caused by the plaintiffs. They failed on that issue, and because they didn’t raise the incremental damages issue at trial, they had to pay the full amount.

TAKEAWAYS

  • If you own rental property, you may be responsible in either negligence or nuisance for pollution caused by your tenant
  • You will likely only be found responsible if you were aware of the pollution, and took no steps to prevent it
  • If you buy property, you may be responsible for prior pollution either in negligence or nuisance
  • If you have or come into knowledge of the existence or continuation of the pollution you must take steps to prevent continuation
  • Although liability in nuisance depends upon some degree of knowledge, it does not require the same state of mind as negligence, because once you are aware of the nuisance, you have the positive duty to try to stop it
  • Making a tactical decision whether to plead alternative issues at trial is always very difficult, but may limit rights on appeal
  • If you have not already done so, you should review your property liability insurance with your broker or agent to make sure that you have coverage for these risks if it is available
  • If, for any reason, property pollution liability insurance is not available to you, you must be extra diligent to address this risk as the damages may be substantial

WHAT WEILERS LAW CAN DO FOR YOU

If you are buying commercial real estate, or even residential real estate which may have an unknown or questionable history, finding out as much as you can about the environmental risks is an important part of the transaction. The commercial and real estate lawyers at Weilers Law are aware of this risk and can help you manage it.

If you become aware of an environmental issue that may be causing damage to neighbouring property, or that a neighbour is causing damage to your property, Weilers Law has significant experience in advising clients with respect to environmental complaints. This includes complying with orders, Provincial Offences Act proceedings under the Environmental Protection Act, and civil proceedings whether under the legislation, in negligence, or nuisance. Some law firms focus on dealing with the Ministry. Some focus on civil litigation. We do both.

Although we do not know why the tactical decision not to deny negligence or nuisance or seek incremental damages only at the trial was made in the Sorbam case, it case illustrates the importance of making those tactical decisions. One of the things that the litigation team at Weilers Law does differently is work hard very early in a file to develop a theory of the case; this theory then guides our preparation and the evidence that we produce at trial to try to avoid any nasty surprises down the road.

If you need advice or representation related to any sort of nuisance, or environmental issues, Weilers Law may be the right lawyers for you.