Injunctions to Enforce Public Rights

• Author: Jeffrey Berryman
• Pages: 228-268

228

CHA PTER 9

INJUNCTIONS

TO ENFORCE

PUBLIC RIGHTS

A. INT RODUCTION

In this chapter we exa mine 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 crimi nal law. In other situations a

private citizen may w ish to do the same. The law provides for an ex

relator action in which a private citizen is allowed to bring an action

in the name of the attorney general. Often, legislation may specif‌ically

allow the individual to br ing forward an injunction application to en-

force public rights in his own capacit y.

A different enforcement of public rights concerns the abilit y of an

individual to seek an injunction against governmental and administra-

tive action. Through prerogative writs and a general action for judicial

review, admi nistrat ive law ha s developed sophisticated and complex

analytical policies with which to scrutinize governmental action. The

adoption of injunctions and declarations, initially derived from private

law adjudication, have become important remedies i n the courts’ arsenal

1 See Ontario (Attor ney General.) v. Dieleman (1994), 20 O.R. (3d) 229 (Gen. Div.)

[Dieleman].

Injunctions to En force Public Rights 229

to ensure that admi nistrative agencies stay within their statutory juri s-

diction and carr y out their mandates in accordance with the dictates

of the rule of law. Of more recent origin is the use of injunctions to

support rulings of admi nistrative agencies. Lastly, we will review the

important function played by injunctions a s a remedy to protect consti-

tutional and Charter rights.

B. INJUNCTIONS TO ENJOIN PUBLIC

NUIS ANCES

An initial problem with public nuisance is def‌ining its doctrinal param-

eters. A widely accepted def‌inition is one given by Lord Denni ng:

[A] public nuisance is a nuisance which i s so widespread in its r ange

or so indiscr iminate in its ef fect that it would not be reasonable to

expect one person to t ake proceedings on his ow n responsibilit y to

put a stop to it, but that it should be taken on the re sponsibility of the

community at large.2

The Supreme Court of Canada described a public nuisance as; “any ac-

tivity which unreasonably interferes with the public’s interest in ques-

tions of health, safety, morality, comfort or convenience,” and “[t]he

conduct complained of must amount to . . . an attack upon the rights

of the public generally to live their lives unaffected by inconvenience,

discomfort or other forms of interference.”3 To determine whether an

act constitutes a public nuisance, one must look at a variety of factors,

including “the inconvenience caused by the activ ity, the diff‌iculty in-

volved in lessening or avoiding the risk, t he utility of the activity, the

general practice of others, and the character of t he neighbourhood.”4

These def‌initions suggest th at a public nuisance is merely a wider pri-

vate nuisance. While there are ma ny similarities b etween the two ac-

tions, a public nuisance encompasses more th an a mere interference

with private property. A public nuisance involves an unreasonable

interference with public rights that may include health, safety, com-

fort, and morality. Although rooted in the criminal law, there is now

no longer a requirement that a public nuisance must also constitute

2 Attorney Ge neral ex rel. Glamorgan County Council and Pontardawe R.D.C. v. P.Y.A.

Quarries Ltd., [1957] 2 Q.B. 169 at 191 (C.A.).

3 Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at para. 52.

4 Ibid. at para. 53.

THE LAW OF EQUITABLE RE MEDIES230

a crime.5 Traditional area s that have been held to constitute a public

nuisance include the obstruction of highways,6 the creation of exces-

sive noise7 and large crowds,8 t he pollution of beaches9 and adjoining

properties,10 odour,11 f‌looding,12 and the control of soliciting for the

purposes of prostitution.13

1) Actions Brought by the Attorney General to Restrain a

Public Nuisance

As guardian of the public interest, the attorney general may bring a n ac-

tion to enjoin a public nuisance on her own initiative. More commonly,

an action is brought by way of an ex relator action where the attorney

general lends her name to a private indiv idual who then brings the

action. While the private individua l bears the cost and car riage of the

action, the attorney general may exercise a super visory role, reviewing

pleadings and discover y, and may also stay the proceedings or take

control of them at any stage. The decision to bring a public nuisance

action, or to allow an ex relator action, is the attorney general’s alone

and is not generally reviewable before the courts.14

The wrongs for which the attorney general normally brings an ac-

tion for public nuisance usually involve either some interference with

5 See the discu ssion by J. Cassels, “Prostit ution and Public Nuisance: De sperate

Measures a nd the Limits of Civil Adjud ication” (1985) 63 Can. Bar Rev. 764.

6 See Tate & Lyle Industries Ltd . v. Greater London Cou ncil, [1983] 2 A.C. 509

(H. L.); Brit ish Columbia (Attorney General) v. Mount Currie In dian Band (1991),

54 B.C.L.R. (2d) 156 (C.A.); and Ogden Entertainmen t Services v. U.S.W.A., Local

440 (1998), 159 D.L.R. (4th) 340 (Ont. Ct. Gen. Div.).

7 See Manitoba (Attorne y General) v. Adventure Flight Centres Ltd. (1983), 22 Man.

R. (2d) 142 (Q.B.); and Ontario (Attorne y-General) v. Orange Productions Ltd.,

[1971] 3 O.R. 585 (H.C.J.).

8 See British Columbi a (Courts of Justice) (Re), 2011 BCSC 1815; British Columbia

(Attorney-Ge neral) ex rel. Eaton v. Haney Speedways Ltd. and Dist rict of Maple

Ridge (1963), 39 D.L.R. (2d) 48 (B.C.S.C.); and Dieleman, above note 1.

9 See R. v. The Sun Diamon d (1983), [1984] 1 F.C. 3 (T.D.); and Hickey v. Electric

Reduction Co. of Canad a, Ltd. (1970), 2 Nf‌ld. & P.E.I.R. 246 (Nf‌ld. S.C.).

10 Ramara (Township) v. Mullen, 2012 ONSC 2220.

11 Newmarket (Town) v. Halton Recycling Ltd. (2006), 274 D.L.R. (4th) 447 (Ont.

S.C .J.).

12 Lanark (County) v. Morrow, 2011 ONSC 4028.

13 See British Columbia (Attor ney General) v. Couillard (1984), 11 D.L.R. (4th) 567

(B.C.S.C.). See also Nova Scotia (Attorne y General) v. Beaver (1985), 67 N.S.R.

(2d) 281 (S.C.A.D.).

14 See Gouriet v. Union of Post Off‌ice Workers (197 7), [1978] A.C. 435 (H.L.) [Gou-

riet], but see the discus sion on standing, Section C (3), below in this cha pter.