It is said that good fences make good neighbours, but what can a person do when a neighbour persistently and unabashedly engages in offensive and disruptive conduct without remorse or apology? While building a fence cannot solve all neighbour disputes, the legal system can be used effectively to address such situations in a manner that, hopefully, decisively puts an end to any ongoing dispute, through a claim of private nuisance.

In Ontario, private nuisance is a tort that is primarily applicable in situations wherein one party interferes with another party’s enjoyment of their private property, such as a home. Private nuisance does not include claims of defacement or interference with enjoyment of publicly owned lands, as such claims are categorized as public nuisance. As private nuisance constitutes a civil claim, remedies that may be awarded by the court include monetary compensation and issuance of orders and directives that a party behave (or not behave, as the case may be), in a particular manner. In this blog, we explore the tort of private nuisance, including to whom it is available, how and when it applies, and remedies that may be awarded to compensate a party found to have suffered wrong or harm as a result of it.

Neighbour Engages in Reprehensible Behaviour for More Than Five Years

The case of Delavalle v Acciavatti involved a neighbour dispute that had been ongoing for a minimum of five years. The plaintiffs in the case owned and lived in a home that is adjacent to the property owned by the defendant (i.e., the properties abut one another as immediate neighbours). Both homes are located in a highly sought after, residentially zoned neighbourhood that is popular with families in the city.

The plaintiffs had long complained of issues they were experiencing with their neighbours, ranging from noise and odour disruptions emanating from the property to illegal discharge of firearms and failure to contain a rat infestation to their own home. In fact, the police had been called to the defendant’s property in response to issues they were causing their plaintiff neighbours on more than 100 occasions over the course of only four years, to the extent where local police became well-familiar with the defendant, his property and the ongoing problems he has been causing in his neighbourhood.

Fed-up Neighbours Sue in Private Nuisance

In 2022, the plaintiffs had endured enough of their neighbour’s shenanigans. As a result, they commenced a claim of, among other things, private nuisance. In particular, the plaintiffs alleged that the defendant had engaged in a persistent campaign of disruptive, illegal, illicit and egregious conduct that included making and/or allowing guests of his property to make extensive noise at all hours of the day and night; trespassing and allowing his dangerous dogs to trespass onto the plaintiffs’ property at any time of the day or night; engaging and allowing guests of his property to engage in illegal activities such as domestic violence, discharge of firearms and use of prohibited narcotics; discharging and allowing guests of his property to discharge firearms on his property without regard to the safety of the plaintiffs and their property, given that several bullets fired from the defendant’s property had in fact struck the plaintiffs’ property; and encouraging and allowing overpopulation of his property such that more than 20 people sometimes resided in a residential property that is not suited to that purpose, amongst other complaints.

What Constitutes a Private Nuisance?

As stated by the court in its judgment in respect of this case, a private nuisance comprises interference with another’s use and enjoyment of their own land that is both unreasonable and substantial.

Who Can Make a Claim of Private Nuisance?

Any private person who is the registered owner and occupier of a private residence or private property has standing to sue for another party for private nuisance. Conversely, any party who is the registered owner and occupier of a private residence or private property also has the capacity to be sued in private nuisance.

The Legal Test to Establish Private Nuisance

To prove private nuisance before an Ontario court, the person who alleges the nuisance must prove, on a balance of probabilities (i.e., to a certainty of 51%), that the behaviour engaged in by the purported offender is non-trivial and is unreasonable in all of the circumstances. In assessing the non-triviality of the alleged offences, the court will consider the nature, duration and severity of the interference; the character of the neighbourhood in which the properties are located; the sensitivity of the alleged victims (i.e., would a reasonable, objective person be as bothered by the alleged interference or is this party particularly sensitive); and the usefulness and utility of the activities in which the alleged offender engaged.

Assessment of Private Nuisance in the Context of This Case

In this case, the court determined that the plaintiffs had indeed experienced multiple categories of nuisance. The court characterized the categories of private nuisance applicable in this case as noises, odours, trespasses and bullets.

In respect of noises, the court noted 11 different sounds that constituted private nuisance, including but not limited to noise associated with police attendance at the property, including noise from sirens and commotion related to police chases and arrests made on or around the defendant’s property; incessant barking emanating from the defendant’s property at all hours of the day and night; the sound of gunshots coming from the defendant’s property; and loud music and sounds of partying coming from the defendant’s property at all hours of the day and night, regardless of the day of the week.

In respect of odours, the court found that “foul odours and noxious fumes continuously emanate from the” defendant’s property as a result of several sources, including the fact that the defendant owned multiple dogs and he allowed them to defecate/urinate wherever they chose, including on the plaintiff’s property; garbage that had accumulated on the defendant’s property despite multiple orders from the city’s Municipal Enforcement Team to remove same; and odours associated with smoking of burning drugs, including narcotics.

In respect of trespass, the court was satisfied that in addition to allowing his dogs and guests to trespass on the plaintiffs’ property, the police were also sometimes required to trespass upon the plaintiffs’ property in pursuit of the defendant, his guests or his dogs. As for bullets, the court was satisfied that several bullets fired from the defendant’s property had struck the plaintiff’s property over the years, including in two locations of the chimney of the plaintiffs’ property.

Was the Behaviour Engaged in Trivial or Non-Trivial?

The court had no difficulty concluding that the behaviour in which the defendant had engaged, persistently, over the course of years, was not trivial. The plaintiffs’ lives had been significantly impacted by the defendant’s behaviour, in that they continued to suffer substantial interference with their enjoyment and use of their property, given the actions to which they were subjected. The plaintiffs were totally prevented from using either their front or back yard because of the defendant’s actions, and they no longer felt comfortable living in their property or inviting guests to their home. Moreover, the plaintiffs had been forced to relocate their bedroom from its position on the upper level of their home to the basement, in an effort to address safety issues caused by stray bullets and avoid the extensive noise that continually emanated from the defendant’s property at all hours of the night. The plaintiffs were unable to open their windows to allow fresh air into their home because of the noise and odour issues stemming from the defendant’s property, and the condition of the defendant’s property and total negligence in containing debris and refuse to his property meant that the plaintiffs were routinely required to clean up debris and dog feces that made its way from the defendant’s property, to theirs.

Considering these factors in the context of the test for non-triviality, the court noted that interference caused to the plaintiffs was frequent and severe. Moreover, the property was located in a beautiful residential neighbourhood that was filled with families who should not expect to be regularly subjected to the kinds of interference the plaintiffs in this case experienced. As to the sensitivity of the plaintiffs, the court was satisfied that “the nature, degree and frequency of the interferences are such that any reasonable person who regard them as offensive and intolerable”. The interferences caused by the defendant did not in any manner serve a utile function that could excuse them. Furthermore, the conduct in which the defendant and his guests engaged was found by the court to be so disturbing, disruptive and dangerous as to have created a neighborhood-wide sense of disturbance and unease.

What Are the Appropriate Remedies for Private Nuisance?

Appropriate remedies for private nuisance are granted on a case-by-case basis and the court has broad discretion to craft a remedy suited to the situation. Courts may award monetary damages, injunctions and orders to deter the offender from continuing to engage in the behaviour complained of. In determining the appropriate remedy, the court will consider the circumstances of the case, any applicable laws, the evidence provided and any other relevant factors.

In this case, the court noted that the defendant had to be aware of the effect of his actions on the plaintiffs, his neighbours, given the sheer volume of police visits and police reports that had been generated as a result of his behaviour. Moreover, the nuisance had persisted for many years and was very serious given that some of the nuisances involved illegal activities, including firing of guns, which could cause serious harm to innocent parties. In short, the court was satisfied that both plaintiffs had been significantly affected by the nuisances in mental, emotional and physical ways. Given the severity of the violation, the court was satisfied that a significant damage award was necessary to deter the defendant from continuing to offend the plaintiffs. As a result, each plaintiff was awarded $180,000. Each of the plaintiffs was also awarded $10,000 in compensation for damages for the mental distress caused to each of them by the defendant, and a further $20,000 to compensate each plaintiff for the defendant’s trespass onto their property. The court also awarded each plaintiff $50,000 in punitive damages.

In conclusion, each plaintiff was awarded a total of $260,000 in monetary compensation (more than half a million dollars in total), in addition to which the court issued a declaration stating that the defendant’s conduct constituted a nuisance to their neighbours, and also awarded an injunction that restrained the defendant from engaging in a lengthy list of offensive behaviour, including but not limited to creating any noise during the night, entering or allowing any animal to enter the plaintiff’s property for any reason, allowing any animal on his premises to continually make noise for extended periods of time, discharging a gun on the premises at any time, allowing debris or refuse from his property to contaminate the plaintiffs’ property, and threatening the plaintiff neighbours for any reason.

Contact Campbell Litigation Today for Advice on Your Neighbour Dispute

If you are engaged in a dispute with your neighbour and seek to understand more about claims of private nuisance, then you are in need of excellent legal guidance to help you navigate your options. Fortunately, Campbell Litigation is here to help. From our offices in Waterloo, Ontario, Campbell Litigation is pleased to provide knowledgeable, capable legal services to clients throughout Southwestern Ontario.

Contact us today, either online or via telephone at (519) 886-1204, and one of our friendly staff will be pleased to schedule a confidential consultation.