Canadian Tort Law/Nuisance

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Private Nuisance

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Nuisance is the frustration of someone's reasonable use of their property. Nuisance can be any sort of interference. For instance, a defendant can cause nuisance to the use of someone's house by playing music too loudly, putting obstacles to their entranceway, or causing foul odours to spread onto their property.

The nuisance must be substantial and be an unreasonable interference. These two criteria make nuisance one of the most context-specific torts. A 60 decibel noise coming from the neighbours may or may not be a nuisance, depending for instance, on whether the neighbourhood was usually quiet or noisy, and whether the plaintiff used the property for sleeping or for drum practice.

The simple fact that the defendant was "there" before the plaintiff is not a defence to nuisance. If someone builds their home beside a factory, the smells and noise of the factory may still cause a substantial interference on the reasonable use of the plaintiff's house, depending on the facts. Neither is "lawful use" necessarily a defence to nuisance. The construction of a new factory near houses may be legal according to zoning laws, but may still constitute a nuisance to those houses. Of course, the judge may take into account such things as the layout of the town in determining what constitutes a nuisance.

The tort of nuisance relates to interference with lawful use of property, not its ownership. Therefore, a tenant of a building could sue for nuisance.

In the case of a continued nuisance, the court may award a lump sum in advance as damages for future harm.