Public nuisance

How BC law treats it

Public nuisance protects rights the public holds in common, such as the use of roads, sidewalks and waterways, and public health and safety. In Ryan v Victoria (City), [1999] 1 SCR 201, the Supreme Court described it as conduct that unreasonably interferes with the public's interest in health, safety, morality, comfort or convenience. In that case, a motorcyclist injured on railway tracks set in a city street succeeded against the railway. A private claimant can sue only if it suffered special or particular damage, beyond what the public at large suffered. Otherwise the claim belongs to the Attorney General, or to a local government using its statutory powers. Municipalities have broad bylaw powers over nuisances under the Community Charter, SBC 2003, c 26 and, in Vancouver, the Vancouver Charter, SBC 1953, c 55, and can order remediation and recover costs. Common nuisance is also an offence under s. 180 of the Criminal Code. Private nuisance is different: a substantial and unreasonable interference with a person's use or enjoyment of their own land (Antrim Truck Centre Ltd v Ontario (Transportation), 2013 SCC 13). Most disputes between neighbouring businesses, such as noise, dust, odours and vibration from construction, are private nuisance claims. Remedies for either form include damages and injunctions, and the two year basic limitation period under the Limitation Act, SBC 2012, c 13 applies to damages claims.

What it means for your business

Businesses can be on either side. A contractor that blocks a street or sidewalk, a site that leaks runoff onto a public road, or a premises that draws repeated police calls can face bylaw enforcement, cost recovery orders and, where someone suffers special damage, civil claims. A retailer whose storefront access is cut off by a nearby project may have a claim if its loss is distinct from the public's. Understanding the difference between public and private nuisance is key to choosing the right claim or defence. Example: A Langley excavation contractor leaves debris that blocks a public lane for weeks, and the only business on that lane loses its delivery access. The business may have a public nuisance claim because its loss is particular to it, while the city can separately enforce its bylaws.

Risks and common mistakes

Suing for public nuisance without evidence of special damage distinct from the public's. Calling a neighbour dispute public nuisance when it is a private nuisance claim about land use. Assuming a permit or approval is always a defence to a nuisance claim. Ignoring municipal nuisance bylaws and orders until enforcement costs are added to the property tax roll. Waiting too long to seek an injunction while the interference continues.