The British Columbia Court of Appeal (BCCA) recently considered the question of public liability for the unlawful exercise of statutory authority.[1] The BCCA articulated a narrowed test for nuisance in the case of government defendants and foreclosed the possibility of tort liability for “regulatory nuisance” altogether.
Government Response to Sinkholes in Seawatch
In 2018, several large sinkholes began appearing in Seawatch, British Columbia. The municipality commissioned an engineering report which concluded that the area was no longer safe to live in. In early 2019, the municipality declared a State of Local Emergency pursuant to ss. 12 and 13 of the Emergency Program Act and ordered the residents of Seawatch to evacuate their homes.[2] Since then, the province has funded the building of a permanent fence around Seawatch, and the State of Local Emergency has been continually renewed every seven days.[3]
At trial, the province was found liable in nuisance for its unlawful interference with the Seawatch residents’ property on the basis that: (1) the province funded and encouraged the building of the fence around Seawatch; and (2) it unlawfully continued the State of Local Emergency.[4]
Issues on Appeal
On appeal, the only issue was the appropriate test for a government defendant’s liability in nuisance where it purported to exercise statutory authority or engage in actions of an “administrative” nature.[5]
Justice Abrioux, writing for a three-judge panel, concluded that the trial judge erred in his liability analysis and in expanding the “boundaries of the law of nuisance to include governmental actions that are purely regulatory in nature.”[6] The province’s appeal was allowed, and the action was dismissed.[7]
It was irrelevant to this appeal whether or not the continuation of the State of Local Emergency or the funding of the fence constituted unlawful acts by the province. Instead, the BCCA assumed that the province exercised administrative or regulatory authority unlawfully and evaluated on that basis whether the province could be liable in nuisance under the appropriate test.
Narrowing the Test: Tying Nuisance Liability to Use, Ownership or Occupation of Land
Historically, nuisance has been a somewhat blurry concept.[8] In 2008, the Supreme Court of Canada (SCC) established a test for nuisance, which required a plaintiff to prove that the defendant interfered with their “use or enjoyment of land” in a manner that was “both substantial and unreasonable.”[9] Nonetheless, nuisance continues to be described as a “vague doctrine” which is “difficult to define accurately.”[10]
In Justice Abrioux’s interpretation, the purpose of the tort of nuisance is to allow courts to order competing priorities of interest in land.[11] Both the defendant and the plaintiff, in his view, must have a point of origin or an interest in land which is tied to the dispute. Nuisance must originate somewhere, arising from “some kind of use of the land from which the interference emanates.”[12]
Ultimately, the BCCA reasoned that the trial judge erred in his interpretation of the test because there is no authority that holds a public entity liable in nuisance where that entity did not own, occupy, or use land when it interfered with the enjoyment or use of the plaintiff.[13]
Refusing to Recognize the Tort of “Regulatory Nuisance”
The BCCA accepted the province’s argument that the decisions to pay for the fence around Seawatch and to approve the municipality’s State of Local Emergency orders are “administrative” decisions that interfere with property rights.
Justice Abrioux’s reasons offer a narrowed scope of liability in the case of a government defendant. For the plaintiff to succeed, it must show that the public defendant has an interest in related land. Previously, it was an undecided question of law whether a public defendant must own, use or occupy land.[14] Limiting public liability in this manner logically separates the tort liability of the province as a lawmaker vs. a neighbour – as the regulator of privately owned land vs. the occupier of related or adjacent land.
This appeal marks the first time that an appellate court has applied the Welbridge principle to the law of nuisance. The Welbridge principle is a well-established rule in negligence law, standing for the proposition that a government’s “purported exercise of statutory powers without authorization is not, in itself, tortious.”[15] There is no duty of care owed by governments to act reasonably in the exercise of statutory authority.[16]
Where the exercise of statutory authority is at issue, the appropriate remedy is presumably a judicial review of the administrative decision. For instance, there is some suggestion that the Seawatch residents in this case should have sought judicial review of the province’s continued approval of the State of Local Emergency order.[17]
Conclusion
Although the BCCA does not comment on whether the province acted lawfully, Justice Abrioux’s reasons conclude with the recognition that the province neglected its supervisory role by allowing the perpetual State of Local Emergency to endure. The respondents have sixty days from March 2, 2023, to seek leave to appeal to the SCC. However, news coverage suggests that further litigation may be cost-prohibitive.
Latham now stands for the proposition that the unreasonable exercise of regulatory or administrative authority cannot create nuisance liability unless the additional elements of nuisance are made out, including the government defendant’s competing interest in land.
[1] British Columbia (Minister of Public Safety) v Latham, 2023 BCCA 104 [“Latham”], at para 33.
[5] Latham, at paras 49-50 and 91.
[6] Latham, at para 8, 32, 89 and 96.
[9] Latham, at para 38, citing Antrim Truch Centre Ltd. v Ontario (Transportation), 2013 SCC 13, at para 19
[10] Latham, at para 36, citing LaSante v Kirk, 2023 BCCA 28 at para 60.
[11] Latham, at paras 33, 39-40, and 72-73.
[15] Latham, at para 66, citing Welbridge Holdings Ltd. v Greater Winnipeg, 1970 CanLII 1 (SCC) at 969
[16] Latham, at para 66, citing Holland v Saskatchewan, 2008 SCC 42.
