Carfra Lawton LLP | Victoria BC

Private nuisance must be substantial and unreasonable

In Burke v Linder 2014 BCSC 1798 Mr. Justice Schultes confirmed a two part test for private nuisance: a defendant’s conduct must substantially interfere with a property interest and such interference must be unreasonable. Substantial means non-trivial. Unreasonable can be determined by factors such as the severity, frequency and duration of the interference, the character of the neighborhood and the sensitivity of the plaintiff.

In Burke the plaintiff owned a rural property in Gibsons, B.C. He complained of his neighbor’s auto/marine mechanic activities and use of a chain saw. The defendant argued he was a retired auto mechanic and his work on cars with friends was in keeping with the “redneck” character of the neighborhood.

The plaintiff’s’ claim was dismissed because he could not prove how often the noise was made or how it might affect a person of ordinary tolerance and sensitivity. The plaintiff did not persuade the court that the noise objectively caused a substantial interference with the plaintiff’s property interests.

The plaintiff had originally claimed against the Sunshine Coast Regional District for failure to enforce its own zoning bylaw. The claim was struck out by Mr. Justice Burnyeat because there was no cause of action for a district choosing not to enforce its own permissive bylaw: see Burke v Sunshine Coast Regional District 2011 BCSC 1636.

Case summary by: Caroline Alexander