April 3, 2025
Can the City Sue me for Negligence or Nuisance?
The jurisprudence on municipal law is well flushed out when it comes to a city’s obligations to its patrons, but when we flip this around to consider a citizen’s obligation to the city (or more broadly, the community as a whole), the law is much more nuanced. Picture a scenario wherein a business owner breaches bylaw after bylaw, causing a municipality to rack up hundreds of thousands of dollars in enforcement costs. Can those expenses be recovered via an action in tort?
Negligence
Establishing a duty of care is the starting point when suing for negligence.[1] We know that a city or municipality owes it citizens a duty of care. This begs a novel legal question, does a citizen owe a municipality a duty of care? To establish a duty of care, the city must show that the citizen should have had the city in mind when making decisions to avoid causing the city the harm of having to enforce them. Given the example above of a business owner, this would mean establishing that the business owner should have had the municipality in mind when making business decisions.
While it may seem like a reasonable cause of action, to date there are no examples where a municipality has successfully sued a business owner or a citizen, in relation to a breach of bylaws, which allowed the municipality to seek damages for its enforcement costs.
Even if a duty of care were to be successfully established, the municipality would have to show that because of the citizen or business owner’s breach of said standard of care, the city suffered damages.
Nuisance
Public Nuisance
There are two torts of nuisance, public and private nuisance. One might assume that a municipality may have a cause of action under public nuisance, but this would be incorrect. The general rule is that actions for public nuisance can only be brought by the Attorney General acting as an officer of the Crown.[2] An individual may sue in public nuisance directly, but only with the Attorney General’s consent where that individual can establish that he or she suffered “special” or “peculiar” damage.[3] Unlike, in private nuisance, to establish a cause of action for public nuisance no interest in land must be shown.[4]
It would be relatively challenging for a municipality to demonstrate standing to bring an action for public nuisance.
Private Nuisance
The cause of action for private nuisance arises out of the effect of an activity. Intent is not required to find nuisance, though some knowledge of the hazard is. A defendant may be found liable in nuisance where:
- The defendant interferes with the plaintiff’s use and enjoyment of their lands.
- The interference is of a substantial character.
- The interference is unreasonable in the circumstances.
- The plaintiff suffers damages as a result of the interference.[5]
Therefore, for a municipality to successfully sue for private nuisance it must establish these four criteria, which is a relatively high bar. The applicable remedy for a municipality vexed by a citizen therefore remains in enforcement of its statues and bylaws, but not in tort.
[1] Anns v Merton London Borough Council, 1978 CanLIIDocs 125.
[2] British Columbia v Canadian Forest Products Ltd, 2004 SCC 38, [2004] SCR 74 at para 67.
[3] Hickey v Electric Reduction Co of Canada (1970), 21 DLR (3d) 368 (Nfld SC) at 372.
[4] Hunter v Canary Wharf Ltd, [1997] AC 655 (HL).
[5] Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 at para 19.
Please note that JSS Barristers insights are provided for informational purposes only. They are not intended as legal advice or a legal opinion. Please contact authors or JSS Barristers if you would like to obtain legal advice on this or other legal issues.