Nuisance - Re: The Test

Fiuza v Creekside Real Estate Group Inc., 2019 CanLII 45625 (ON SCSM)

[162] Private nuisance between neighbours is defined as an unreasonable interference with the reasonable use and enjoyment of one’s home. The test is an objective one - did the defendants use their property in a reasonable manner, with regard to the fact that they had neighbours? In determining nuisance, courts have consistently imposed a standard of good neighbourliness: Albiston v. Liu, 2013 CanLII 49799. The plaintiffs are required to show that the harm complained of is actionable and not transient: Gordner v. 2384898 Ontario Limited, (2017) CanLII 9631. The harm must be an undue and material interference with the use and enjoyment of the plaintiffs’ property.

[163] As stated by the Court of Appeal in Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2011 ONCA 419 (CanLII), nuisance involves a two part analysis. The annoyance or discomfort must be a substantial and unreasonable interference. If there is no actual interference, or if the interference is trifling, then there is no substantial interference. In this case, there was overwhelming evidence of no interference or at best, a trifling interference.

[164] Unreasonable interference is determined by considering the gravity of the harm caused and utility of the defendant’s conduct. This necessitates an analysis of four factors: (1) severity of the interference; (2) character of the neighbourhood; (3) utility of defendant’s conduct and (4) sensitivity of the plaintiff.

Cecchin v Lander, 2019 CanLII 131883 (ON SCSM)

86. As noted above, harassment is not a civil cause of action. The plaintiffs rely on the torts of nuisance and/or invasion of privacy. The latter cause of action was recognized in Jones v. Tsige (2012), 2012 ONCA 32 (CanLII), 108 O.R. (3d) 241 (C.A.). There is some overlap between the two causes in this case and hence they are addressed together in these reasons. The plaintiffs rely on three matters:

(i) Surveillance cameras pointed at their property;

(ii) Floodlights shining on their property;

(iii) Obstructive parking.

88. Private or common law nuisance consists of substantial and unreasonable interference with the claimant’s use or enjoyment of land: Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), 2013 SCC 13 (CanLII), [2013] 1 S.C.R. 594 (“Antrim”), at para. 18. A substantial interference is one that is not trivial: Antrim, at para. 19. Whether the interference is unreasonable may depend on a variety of case-specific factors but there is no checklist. Rather the overarching question is whether the interference is unreasonable taking the gravity of the harm balanced against the utility of the defendant’s conduct in all the circumstances: Antrim, at para. 26. In other words, the law asks whether it would be unreasonable to require the claimant to suffer the particular interference without compensation: Antrim, at para. 25.

89. Surveillance cameras and floodlights pointed onto residential neighbouring property can constitute the tort of nuisance: Lipiec v. Borsa, [1996] O.J. No. 3819 (Gen. Div.); Saelman v. Hill (2004), 20 R.P.R. (4th) 118 (Ont. S.C.J.); Suzuki v. Munroe (2009), 2009 BCSC 1403 (CanLII), 87 R.P.R. (4th) 68 (B.C.S.C.); Cline v. Drummond, [2017] O.J. No. 3342 (S.C.J.), affirmed [2019] O.J. No. 1639 (C.A.), leave to appeal denied [2019] S.C.C.A. No. 131.

90. Invasion of privacy and more particularly the tort of intrusion upon seclusion was recognized in Jones v. Tsige, supra. At para. 70 of the reasons of Sharpe J.A. the elements of the tort were formulated as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

91. A person’s residence represents a fundamentally important private and personal space. It is a home and a place of seclusion from the world at large. Having surveillance cameras and floodlights aimed at one’s residence is a clear and material intrusion into that space, particularly where, as I find in this case, this was done as part of a deliberate campaign of harassment. I conclude that the torts of invasion of privacy and nuisance are made out. The particular invasion would be highly offensive to a reasonable person; in the language of nuisance it would be unreasonable to require the plaintiffs to suffer the interference without compensation.