Private Nuisance Claims Against a Neighbour in Ontario

Few things wear you down like a neighbour's lingering smell, smoke drifting into your yard, or a constant hum that keeps you from using your own home. You may wonder whether the law treats this as more than bad manners, and whether you can make it stop.

Ontario law does have a name for this kind of problem: private nuisance. This article explains what it means, how it differs from a negligence claim, what a court can order, and which other routes, such as municipal by-laws, may be quicker. It is general information, not advice on your situation.

What private nuisance means

The Court of Appeal for Ontario has described private nuisance as an act that indirectly causes physical injury to land, or substantially interferes with its use or enjoyment, where the injury or interference is unreasonable in light of all the surrounding circumstances.

Two points matter in plain terms. First, the interference has to be substantial, so ordinary, passing annoyances are unlikely to be enough. Second, it has to be unreasonable once everything is considered.

Nuisance looks at the effect on your property rights, not at whether the neighbour was careless. Unlike negligence, it does not characterize the neighbour's conduct. So a neighbour who is being careful may still be causing a nuisance if the effect on you is unreasonable.

Everyday situations people raise

Whether a particular situation qualifies depends on the facts. Common complaints include:

• Persistent smoke or odour drifting onto your property.
• Dust or debris from nearby activity.
• Vibration or loud, repeated noise.
• Bright outdoor lighting shining into your home.
• Water or soil problems that damage your land.

Each of these could, in some cases, be a substantial interference with how you use your land. Whether it is unreasonable turns on all the surrounding circumstances. A lawyer can look at how long it has gone on, how serious it is, and what evidence you have.

What a court can order

If the matter goes to court, there are two main kinds of remedy.

• An order to stop or change the activity. A judge of the Superior Court of Justice may grant an interlocutory injunction or mandatory order where it appears just or convenient to do so.
• Money. A court that can grant an injunction may also award damages in addition to, or in place of, the injunction.

If you are claiming only money, the Small Claims Court hears claims up to the prescribed amount, which is $50,000, not counting interest and costs. Claims for an order to stop the activity are a different matter and are generally heard in the Superior Court of Justice.

By-laws may be a faster route

A lawsuit is slow and can be costly, so many people start with the municipality. A local municipality may prohibit and regulate noise, vibration, odour, dust and outdoor illumination by by-law, and may require permits for these matters. A municipality may also prohibit and regulate public nuisances.

Where the problem involves dumping fill, removing topsoil or changing the grade of land, a local municipality may regulate that too, and may require permits and impose conditions.

What each by-law says, including quiet hours and how to complain, differs from one municipality to the next. Check your own municipality's by-laws or call its by-law enforcement office.

Time limits and what to do next

The basic limitation period is two years from the day the claim was discovered. A claim is discovered on the earlier of the day you actually knew the relevant matters and the day a reasonable person in your position ought to have known them. No proceeding may be started after the 15th anniversary of the act or omission, whatever the date of discovery.

Because an ongoing problem can raise tricky questions about when the clock started, do not wait. Steps to consider:

• Keep a dated log of each incident, with times and how it affected you.
• Take photos, videos or air and noise readings where you can.
• Save any messages or letters exchanged with the neighbour.
• Raise the problem politely and in writing first, if it is safe to do so.
• Contact the municipality about any by-law that may apply.
• Speak with a lawyer about the limitation period and your options before starting a claim.

Frequently asked questions