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.