Injunctions to Enforce Public Rights
| Author | Jeffrey Berryman |
| Profession | Professor of Law. Faculty of Law University of Windsor |
| Pages | 131-159 |
CHAPTER
9
INJUNCTIONS
TO
ENFORCE
PUBLIC
RIGHTS
A.
INTRODUCTION
In
this chapter
we
examine
the
enforcement
of
public rights. These
rights
may
derive
from
common law, statute
or
constitutional provi-
sions.
An
important aspect
of the
enforcement
of
public rights
is the
role played
by the
attorney general, who, acting
as
parens
patriae,
has a
broad
jurisdiction
to
represent
the
public
interest.1
In
some situations
the
attorney general
may
wish
to
invoke equity's jurisdiction
to
enjoin
a
public nuisance
or in aid of the
criminal law.
In
other situations
a
pri-
vate
citizen
may
wish
to do the
same.
The law
provides
for an ex
relator
action
in
which
the a
private citizen
is
allowed
to
bring
an
action
in the
name
of the
attorney general.
Often,
legislation
may
specifically allow
the
individual
to
bring forward
an
injunction application
to
enforce
public rights
in his own
capacity.
A
different
enforcement
of
public rights concerns
the
ability
of an
individual
to
seek
an
injunction against governmental
and
administra-
tive action. Through prerogative writs
and a
general action
for
judicial
review, administrative
law has
developed
sophisticated
and
complex
analytical
policies with which
to
scrutinize governmental action.
The
adoption
of
injunctions
and
declarations, initially derived
from
pri-
vate
law
adjudication, have become important remedies
in the
courts'
1 See
Ontario
(A.G.)
v.
Dieleman
(1994),
20
O.R. (3d)
229
(Gen.
Div.).
131
132 THE LAW OF
EQUITABLE
REMEDIES
arsenal
to
ensure that administrative agencies stay within their statu-
tory
jurisdiction
and
carry
out
their mandates
in
accordance with
the
dictates
of the
rule
of
law.
Of
more recent
origin
is the use of
injunc-
tions
to
support rulings
of
administrative agencies. Lastly,
we
will
review
the
important function played
by
injunctions
as a
remedy
to
protect constitutional
and
Charter
rights.
B.
INJUNCTIONS
TO
ENJOIN
PUBLIC
NUISANCES
An
initial
problem with
public
nuisance
is
defining
its
doctrinal param-
eters.
A
widely accepted definition
is one
given
by
Lord Denning:
[A]
public nuisance
is a
nuisance which
is so
widespread
in its
range
or
so
indiscriminate
in its
effect
that
it
would
not be
reasonable
to
expect
one
person
to
take proceedings
on his own
responsibility
to
put a
stop
to it, but
that
it
should
be
taken
on the
responsibility
of the
community
at
large.2
This
definition suggests that
a
public
nuisance
is
merely
a
wider private
nuisance. While there
are
many similarities between
the two
actions,
a
public nuisance encompasses more than
a
mere interference with
pri-
vate
property.
A
public nuisance involves
an
unreasonable interference
with public rights that
may
include health,
safety,
comfort
and
moral-
ity.
Although rooted
in the
criminal
law,
there
is now no
longer
a
requirement that
a
public nuisance must also constitute
a
crime.3
Tra-
ditional areas that have been held
to
constitute
a
public nuisance
include
the
obstruction
of
highways,4
the
creation
of
excessive
noise5
2
A.G.
ex.
rel.
Glamorgan County Council
and
Pontardawe
R.D.C.
v.
P.Y.A.
Quarries
Ltd.
(C.A.).
3 See the
discussion
by J.
Cassels, "Prostitution
and
Public Nuisance: Desperate
Measures
and the
Limits
of
Civil Adjudication"
(1985)
63
Can.
Bar
Rev.764.
4 See
Tate
&>
Lyle
Industries Ltd.
v.
Greater London
Council,
(H.L.);
British
Columbia
(A.G.)
v.
Mount
Currie Indian
Band
(1991),
54
B.C.L.R.
(2d)
156
(C.A.);
and
Ogden
Entertainment Services
v.
U.S.W.A.,
Local
440
(1998),
159
D.L.R.
(4th)
340
(Ont. Gen.
Div.).
5 See
Manitoba (A.G.)
v.
Adventure Flight Centres Ltd.
(1983),
22
Man.
R.
(2d)
142
(Q.B.);
and
Ontario (A.G.)
v.
Orange Production
Ltd.,
[1971]
3
O.R.
585
(H.C.).
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