What Constitutes Nuisance

Since May of 2022, residents of the Outer Battery neighbourhood of St. John’s have been embroiled in a heated dispute regarding one resident’s home security system. As readers may be aware, the resident in question has mounted large floodlights on his home, measuring 20,000 lumens 24/7, and which some residents have compared to “looking at the Sun.”

As their neighbourhood has been kept in perpetual daylight, residents have expressed their growing frustration over mental health concerns, difficulty sleeping, and the unpleasant sensory experience of living among such intense lighting. The City of St. John’s has indicated that nothing can be done under the City of St. John’s Act (section 377 of which addresses public nuisance), to resolve what is seen as a private nuisance between neighbours.

This dispute has prompted protests and petitions, and has led to an arrest for trespassing and property damage after one man attempted to physically tamper with the security lights. In light of these reactions, it is worth asking for would-be complainants: what criteria do courts consider when analyzing a civil claim of nuisance?

An actionable nuisance claim must involve interference with the enjoyment or use of one’s land, and the interference must be substantial and unreasonable (Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation, 2013 SCC 13 at paragraph 19). The interference can take the form of physical damage to one’s property, or can be an intangible nuisance such as offensive odours, noises, or in this case, lighting.

What constitutes a “substantial” interference is an inconvenience that rises above that of a slight annoyance. The occasional barking of a neighbour’s dog, for example, is more likely to be considered a trivial irritation than a substantial interference. In order to meet the latter threshold, the inconvenience must alter the nature of a plaintiff’s property.

Should the court accept the interference as substantial, it must then consider whether the interference complained of is unreasonable given all the circumstances. To do so, courts will consider various factors, such as the severity of the harm, the character of the area, the sensitivity of the plaintiff, and the utility or necessity of the interference, to determine whether it would be unreasonable to deny a remedy to those aggrieved.

The severity of a given interference is often gauged by considering the evidence of those afflicted, as well as the duration and frequency of the conduct, all in contemplation of what an ordinary person might reasonably be expected to tolerate.
Is the character of a given area such that interference of the sort is typical or to be expected? For example, loud and frequent noise characteristic of an industrial zone would likely be considered unreasonable were the same sounds occurring in a quiet suburban neighbourhood.

Courts will consider whether the plaintiff displays an abnormal sensitivity toward the offensive conduct. What qualifies as an abnormal sensitivity, while context-specific, generally refers to a personal trait distinct from that of most ordinary residents.

For example, in MacNeill v. Devon Lumber Co, 1987 CarswellNB 90, the plaintiff was irritated by dust from a neighbouring cedar mill. On appeal, their damages award was reduced as they had an allergy to cedar dust, which was deemed a specific condition not reflective of the ordinary person in that particular location. If there are multiple complainants in a given matter, however, it seems inherently more difficult to categorize widespread, shared objections as owing to each individual’s particular sensitivities.

These factors do not represent an exhaustive checklist when considering nuisance claims, as all circumstances must be considered. Conduct which is, “malicious or careless” is also of significance in determining reasonableness (Antrim at paragraph 29). Canadian courts have found, “Activities designed to annoy one’s neighbours and having little or no redeeming social utility are unreasonable and should be discouraged by the law” (Suzuki v. Munroe, 2009 BCSC 1403 at paragraph 100). However, if a defendant’s conduct does, in fact, provide a social utility or benefit, it may be deemed reasonable.
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As of January 27th, 2023, the floodlights have been turned off in the Outer Battery. Whether they remain off, and, consequently, whether our courts will eventually be considering the above factors regarding these controversial lights, remains to be seen. 

- Scott Lynch