C. Public Nuisance

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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Public nuisance is not primarily a tort concept. A public nuisance is a crime for which public remedies including injunctive relief at the behest of the attorney general are available. A public nuisance may, however, also have tortious consequences if it causes special damage to an individual person. In those situations, a private action for damages or an injunction may be available to the injured person. The central issues in public nuisance are its definition and the various public and private remedies that are available. Both have generated difficulty.

1) The Definition of a Public Nuisance

The common law definition of a public nuisance has found its way into the Criminal Code55as a common nuisance. Section 180(2) of the Criminal Code states:

[E]very one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby

(a) endangers the lives, safety, health, property or comfort of the public; or

(b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.

This definition captures the common law meaning of public nuisance and illustrates the extreme generality of the concept. It covers a wide range of eclectic activities and it is very difficult to give the concept greater clarity and precision than is found in section 180(2). Some further guidance is, however, provided by the recognition that public nuisances generally fall into two broad categories.56The first category includes interferences with the rights and interests of the public which all persons share in common. The classic examples of public nuisances in this category include obstructing a

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public highway with a stalled motor vehicle, barriers, protest marches, excavations or heavy smoke, blocking access to a public park, blocking a navigable waterway, destroying a provincial forest, polluting a river or stream, polluting the air with smoke and fumes, obstructing a public sidewalk with temporary structures, demonstrators or line-ups of people, selling food that is unfit for human consumption, and running a bawdy house. These are all instances of either an interference with public rights of way or an interference with the public’s interest in property, safety, health, or comfort. It is not, however, every trivial interference with the public’s rights that amounts to a public nuisance. A degree of tolerance and a spirit of give and take is as necessary in this context as it is in private nuisance. Consideration must be given to all the surrounding circumstances, including the utility of the defend-ant’s conduct, the nature and extent of the interference with the public’s rights and interests, and the burden of avoiding or abating the nuisance. A temporary obstruction of a street to deliver goods, the closure of a highway to carry out repairs, and the partial obstruction of a sidewalk with construction scaffolding are unlikely to amount to a public nuisance. In this category of public nuisance there is less emphasis on the number of persons directly affected. An obstruction of the highway or the pollution of a river may directly affect only a few people but, nonetheless, the right of the public to passage on that highway and the right of the public to fish in that river have been infringed and the courts are not hesitant to find a public nuisance.

The second category of public nuisance arises from a widespread interference with the use and enjoyment of private land. In this situation, a public nuisance arises where the defendant’s activities have created a multiplicity of private nuisances that may be remedied either by each landowner as a private nuisance or, cumulatively, by public remedies as a public nuisance.57The primary problem in this category of cases is to decide, in the particular circumstances, how many private nuisances make a public nuisance. One approach suggests that a combination of private nuisances become a public nuisance when they affect a "class" of persons or a "neighbourhood."58There is no precision in these terms but the cases seem to suggest that a combination of somewhere around ten private nuisances is normally sufficient. Another view suggests that there is a public nuisance where the interference with private property is so widespread in its range and so indiscriminate in its effect that it

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may reasonably be characterized as a public responsibility59that should be remedied by governmental rather than private action.

In most cases the two approaches will lead to the same result. A public nuisance has, for example, been recognized where a quarry caused dust, noise, and vibrations to many landowners over a widespread area60and where the operation of...

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