NELSON v WHITNEY

The Defendants appealed a decision of an Applications Judge that dismissed their Application to strike the Statement of Claim pursuant to Rule 3.68. The Statement of Claim alleged that the Defendants planting trees in their neighbouring property was an actionable nuisance as they obstructed the Plaintiff’s views. Pursuant to Rule 6.14, the standard of review for such appeals is correctness.

Pursuant to Rule 3.68, the Court may strike all or part of a claim if it is “plain and obvious” that the pleading does not disclose a reasonable cause of action. The Court assumes the pleaded facts are true, however, unsupported or vague allegations, especially of fraud or bad faith, are not accepted without sufficient particulars. For novel claims, the Court considers the clarity of the pleadings and similar caselaw. In doing so, the Court balances the risk of unduly constraining the development of the common law by applying an overly stringent test with the need to prevent unnecessary trials where legal analysis can resolve whether a novel claim has any reasonable prospect of success.

Justice Hartigan assessed whether the claim of private nuisance was established in the Statement of Claim by applying a two part-test: whether the interference of an owner’s use and enjoyment of their land is both substantial and unreasonable. The Plaintiffs argued that the loss of their view constituted a substantial interference. Hartigan J. analyzed various cases across multiple jurisdictions on the issues; however, Hartigan J. concluded that the overwhelming authority in Canada supported the proposition that a loss of view could not be the basis of a claim in private nuisance. The Court also held that the Statement of Claim did not represent a novel factual or legal framework to support it being a novel claim. As such, Justice Hartigan determined the Statement of Claim disclosed no reasonable cause of action. The Appeal was granted and the Statement of Claim was struck pursuant to Rule 3.68.