What Is Public Nuisance?
In Ontario, most cases that arise from a slip, trip or fall will be pursued under the Occupier’s Liability Act, which is a law outlining the duty to take reasonable steps to ensure a property is reasonably safe. This law specifically replaced the ‘common law’ duty of occupiers that was developed by the courts.
However, there is still a common law Tort of ‘public nuisance’ that has not been replaced by the Occupier’s Liability Act.
A public nuisance is “any activity which unreasonably interferes with the public's interest in questions of health, safety, morality, comfort or convenience”.
In order to present a case of public nuisance, a Plaintiff must suffer a “special damage” arising from an obstruction that lasts “an unreasonable amount of time in unreasonable circumstances”.
Factors that will be considered in defining “unreasonable” include: utility of defendant’s conduct; nature of the locality; severity of the harm; sensitivity of the Plaintiff; malice; quality of damage or interference; frequency and duration; and time of day.
The case law on nuisance also establishes that the property owners do not need to be involved in creating the nuisance but may be held liable for continuing or adopting a nuisance created by another person.
Public nuisance is unique and is a separate category in Tort from negligence. When considering public nuisance, the courts begin their inquiries based on the harm suffered and not on the property owner's conduct. Therefore, the 'reasonable steps' to keep premises safe are not relevant to a claim of a public nuisance.
The analysis undertaken by the trial judge will begin with the harm suffered. The judge will then consider if the cause of the harm interferes with the public interests at large. The analysis will work from there to establish who is responsible for the public nuisance that existed, and it will be an ineffectual defence to state that negligence has not been established.