Sutherland et al. v. Canada (Attorney General) et al., 2002 BCCA 416

• Judge: Finch, C.J.B.C., Prowse and Hall, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 03, 2002
• Jurisdiction: British Columbia
• Citations: 2002 BCCA 416;(2002), 170 B.C.A.C. 233 (CA)

Sutherland v. Can. (A.G.) (2002), 170 B.C.A.C. 233 (CA);

    279 W.A.C. 233

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. JL.008

Wilfred Sutherland and others (respondents/appellants by cross-appeal/plaintiffs) and Andrea Jones and others (respondents/appellants by cross-appeal/plaintiffs) v. The Vancouver International Airport Authority (appellant/respondent by cross-appeal/defendant) and The Attorney General of Canada (respondent/respondent by cross-appeal/appellant by cross-appeal/defendant) and Canadian Airports Council (intervenor)

(CA028817; 2002 BCCA 416)

Indexed As: Sutherland et al. v. Canada (Attorney General) et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Prowse and Hall, JJ.A.

July 3, 2002.

Summary:

The plaintiffs sued the defendants for damages in nuisance for noise pollution resulting from the construction and operation of the north runway at the Vancouver Inter­national Airport.

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 1024, allowed the action and awarded damages. The airport authority appealed both liability and damages. The Attorney General of Canada and certain plaintiffs cross-appealed respecting damages.

The British Columbia Court of Appeal allowed the appeal and dismissed the plain­tiffs' action.

Editor's Note: See also prior related cases at [1997] B.C.T.C. Uned. G23, and 164 B.C.A.C. 27; 268 W.A.C. 27.

Statutes - Topic 5501

Operation and effect - Delegated legisla­tion - Orders-in-council - General - The British Columbia Court of Appeal dis­cussed the nature of orders-in-council - See paragraphs 70 to 73.

Torts - Topic 1005

Nuisance - General principles and defini­tions - Nuisance defined - The British Columbia Court of Appeal stated that the same conduct may constitute both public and private nuisance - See paragraph 27.

Torts - Topic 1007

Nuisance - General principles and defini­tions - Private nuisance defined - A new North Runway at the Vancouver Interna­tional Airport opened in 1996 - Flight paths to the east of the new runway passed directly over the plaintiffs' properties - The British Columbia Court of Appeal affirmed that the noise resulting from the operation of the North Runway constituted a private nuisance (unreasonable and sub­stantial interference with the use and en­joyment of their lands), for which the plaintiffs could sue in their own names, without the assistance of the Attorney General of British Columbia - See para­graphs 2, 4 to 6, 17 to 35.

Torts - Topic 1260

Nuisance - Particular nuisances - Noise and vibration - Airports - [See Torts - Topic 1007 ].

Torts - Topic 1520

Nuisance - Actions - General - Who may bring action - Private nuisance - [See Torts - Topic 1007 ].

Torts - Topic 1800

Nuisance - Defences - Statutory authority - The British Columbia Court of Appeal stated that when the defence of statutory authority was pleaded, the statute must authorize the work, conduct or activity complained of, either expressly or by necessary implication - The proper ques­tion was what work, conduct or activity was authorized by statute, not who was authorized to carry it out - See paragraphs 67, 86.

Torts - Topic 1800

Nuisance - Defences - Statutory authority - The British Columbia Court of Appeal stated that private parties could rely on the defence of statutory authority, if the work in question was authorized by statute - See paragraph 86.

Torts - Topic 1800

Nuisance - Defences - Statutory authority - A new North Runway at the Vancouver International Airport opened in 1996 - Flight paths to the east of the new runway passed directly over the plaintiffs' prop­erties - The noise from the runway's oper­ation created a private nuisance - The British Columbia Court of Appeal held that the location, construction, use and opera­tion of the North Runway was auth­orized by a statutory scheme - Further, the noise nuisance associated with the run­way's operation was its inevitable result, and therefore implicitly authorized by statute as well - Thus the Crown was immune from liability for the nuisance created by its tenant (the airport authority) - See para­graphs 77 to 119.

Cases Noticed:

Stein v. Gonzales (1984), 31 C.C.L.T. 19 (B.C.S.C.), refd to. [para. 27].

Armstrong v. Langley (City) (1992), 16 B.C.A.C. 174; 28 W.A.C. 174; 69 B.C.L.R.(2d) 191 (C.A.), refd to. [para. 29].

Attorney General v. P.Y.A. Quarries Ltd., [1957] 2 Q.B. 169; [1957] 1 All E.R. 894 (C.A.), refd to. [para. 32].

Tock and Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181; 104 N.R. 241; 82 Nfld. & P.E.I.R. 181; 257 A.P.R. 181, refd to. [para. 52].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 52].

Reference Re Validity of Regulations in Relation to Chemicals, [1943] S.C.R. 1, refd to. [para. 70].

Coyle v. British Columbia (Minister of Education), [1978] 6 W.W.R. 279 (B.C.S.C.), refd to. [para. 72].

Jagtoo et al. v. 407 ETR Concession Co. et al., [1999] O.T.C. 207 (Sup. Ct.), refd to. [para. 75].

Allan v. Guld Oil Refining Ltd., [1981] A.C. 1001 (H.L.), refd to. [para. 86].

Solloway v. Okanagan Builders Land Development Ltd. (1976), 71 D.L.R.(3d) 102 (B.C.S.C.), refd to. [para. 86].

Mississauga (City) v. Greater Toronto Airports Authority et al. (2000), 138 O.A.C. 1; 50 O.R.(3d) 641 (C.A.), refd to. [para. 91].

Dunne v. Company of the Proprietors of the Birmingham Canal Navigation (1872), 8 L.R. Exch. 42, refd to. [para. 114].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes, Appendix IV, pp. 274 to 277 [para. 69].

Dussault, L. and Borgeat, L., Administra­tive Law, A Treatise (2nd Ed. 1985), vol. 1, p. 268 [para. 72].

Halsbury's Laws of England (1995) (4th Ed. - Reissue), vol. 44(1), paras. 1499, 1500 [para. 73].

Hogg, Peter W., and Monahan, Patrick, Liability of the Crown (3rd Ed. 2000), pp. 136 [para. 65]; 595 [para. 66].

Counsel:

A.P. Seckel and A.D. Borrell, for the appellant, Vancouver International Air­port Authority;

G.C. Carruthers and G.D. Rosenfeld, for the respondent, Attorney General of Canada;

D.W. Roberts, Q.C., and J.R. Shewfelt, for the respondents, Wilfred Sutherland et al.;

B. Morgan and M. Jamal, for the intervenor, Canadian Airports Council.

This appeal was heard at Vancouver, British Columbia, on May 14-17, 2002, by Finch, C.J.B.C., Prowse and Hall, JJ.A., of the British Columbia Court of Appeal.

The following decision of the court was delivered by Finch, C.J.B.C., on July 3, 2002.