Tock v. St. John's Metropolitan Area Board

Tock v. St. John's Metropolitan Area Board
Collection
Supreme Court Judgments
Date
1989-12-07
Report
[1989] 2 SCR 1181
Case number
20267
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John
On appeal from
Newfoundland and Labrador
Subjects
Torts
Notes
SCC Case Information: 20267
Decision Content
Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181
Neil Tock and Linda Tock Appellants
v.
St. John's Metropolitan Area Board Respondent
indexed as: tock v. st. john's metropolitan area board
File No.: 20267.
1989: January 31; 1989: December 7.
Present: Dickson C.J. and McIntyre*, Lamer, Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.
on appeal from the court of appeal for newfoundland
Torts -- Nuisance -- Public body -- Defence of statutory authority ‑‑ Basement flooded when sewer blocked -- Installation and operation of sewer sanctioned by statute -- Whether or not municipality liable for damages in nuisance -- The Municipalities Act, S.N. 1979, c. 33, s. 154(1), (2), (3).
Appellants' house was serviced by the water and sewer system operated by the respondent board. On a day of exceptionally heavy rainfall, appellants discovered that a large amount of water had entered their basement, immediately notified the Board and vainly attempted to pump the water out themselves. Two employees of the Board inspected the storm sewer, determined that it was blocked and a crew located and removed the blockage. The water drained from the basement shortly afterwards but substantial damage had been incurred.
The trial judge found that appellants' right of enjoyment of their property had been seriously interfered with and allowed their claim in nuisance. He also found that the collection and drainage of water from rain or other sources constituted a non‑natural user of land within the meaning of the rule in Rylands v. Fletcher. The Newfoundland Court of Appeal reversed this judgment. The issue of negligence was not in issue at the Court of Appeal or in this Court. At issue here was whether the rule in Rylands v. Fletcher was applicable. Also at issue was whether a nuisance existed and if the defence of statutory authority applied in the circumstances to absolve the municipality of liability arising in nuisance.
Held: The appeal should be allowed.
Per Lamer, Wilson and L'Heureux‑Dubé JJ.: The rule in Rylands v. Fletcher had no application here.
The flooding of the appellants' basement would clearly have been an actionable nuisance if the parties had been two private individuals. Different considerations applied, however, because respondent was a municipality. The crucial question was whether or not the respondent was able to rely on the defence of statutory authority. The Municipalities Act, which authorized the respondent to construct, operate and maintain the sewage system, conferred a power but did not impose a duty. This distinction is relevant to the question of respondent's liability in nuisance.
The following principles, which were established in the early cases, should be reaffirmed. Firstly, if the legislation imposes a duty and the nuisance is the inevitable consequence of discharging that duty, then the nuisance is itself authorized and there is no recovery in the absence of negligence. Secondly, if the legislation merely confers an authority but is specific as to the manner or location of doing the thing authorized and the nuisance is the inevitable consequence of doing the thing authorized in that way or in that location, the nuisance is itself authorized and there is no recovery absent negligence. On the other hand, if the legislation confers an authority on a public body and also gives it a discretion, not only whether or not to do the thing authorized but also how to do it and in what location, then if that public body decides to do the thing authorized, it must do it in a manner and at a location which will avoid the creation of a nuisance. If the public body implements the thing authorized in a way or at a location which gives rise to a nuisance, it will be liable therefor, whether there is negligence or not. The more recent cases, to the extent that they are inconsistent with these principles, should not be followed.
The inevitable consequences doctrine will only protect the public body if the statute ordered the thing to be done or authorized it to be done in a particular manner or location. It should not be extended to cases where the public body was perfectly free to exercise its statutory authority without violating private rights. It is only in cases where the public body has no choice as to the way in which or the place where it engages in the nuisance‑causing activity that the inevitable consequences doctrine protects it. For only in such cases can it be said that the legislature has authorized any nuisance which is the inevitable consequence of the public body's carrying out its mandate.
The legislation in this case was purely permissive. It authorized a sewage system to be constructed but did not specify how or where it was to be done. The respondent was accordingly obliged to construct and operate the system in strict conformity with private rights. It did not do so. The defence of statutory authority is not available to it and the appellants are entitled to recover.
Per Dickson C.J. and La Forest J.: The rule in Rylands v. Fletcher cannot be invoked where the user is not inappropriate to the place where it is maintained.
The flooding here would constitute a compensable nuisance if this case had been between private individuals. It was not reasonable to deny compensation to the appellant because the damage was suffered at the hands of a body exercising statutory authority. The law of nuisance as it relates to the defence of statutory authority should be reformulated in functional terms.
A claim for nuisance arising out of the action of a public body that has been sanctioned by statute should be dealt with rather like claims in nuisance between two private individuals. Given all the circumstances, is it reasonable to refuse to compensate the aggrieved party for the damage he has suffered? If the legislature wishes to shift the risk from a public authority to the individual, it can do so in express terms. The legislature should not be presumed to authorize a serious nuisance and no weight should be accorded a showing by the public body that damage was inevitable. The determination that damage was inevitable does not provide a rationale for concluding that it is reasonable to demand of the person whom misfortune has singled out that he or she pay for the damage concerned. The costs of damage that is an inevitable consequence of the provision of services that benefit the public at large should be borne equally by all those who profit from the service.
The defence of statutory authority is not deprived of all vigour. A public body will not be subject to a claim in nuisance because a work is constructed in a particular place if the legislature has authorized it to be built there. Nor can landowners complain about ordinary disturbances or loss of amenity that necessarily results from the construction or operation of a statutorily authorized work, provided it is built and operated with all reasonable care and skill.
A useful distinction exists between isolated and infrequent occurrences which inflict heavy material damage on a single victim and those ordinary disturbances which have a broad and general impact on the public at large. Damage attributable to a calamitous event should be viewed as a part of the overall cost of providing a beneficial service to the community and should be placed on the body that undertakes it. That body can defray the cost among its subscribers or increase the frequency of inspections to forestall the occurrence of such calamities.
Per Sopinka J.: The state of the law with respect to the defence of statutory authority should not be departed from except for good reason and on the basis of substantial unanimity. The rationale of this defence is that if the legislature expressly or implicitly says that a work can be carried out which can only be done by causing a nuisance, then the legislation has authorized an infringement of private rights. If no compensation provision is included in the statute, all redress is barred. A work is authorized by statute, whether the statute is mandatory or permissive, if the work is carried out in accordance with the statute.
The burden of proof with respect to the defence of statutory authority is on the party advancing the defence. It is not an easy one and factual difficulties will be resolved against the defendant. The defendant must negate that there are alternate methods of carrying out the work and the fact that one is considerably less expensive will not avail. If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance. It is insufficient for the defendant to negate negligence. The standard is a higher one. It was not met in this case.
Cases Cited
By Wilson J.
Distinguished: Rylands v. Fletcher (1868), L.R. 3 H.L. 330; The King v. Pease (1832), 4 B. & Ad. 30, 110 E.R. 66; considered: Vaughan v. Taff Valley Railway Co. (1860), 29 L.J. Ex. 247; Hammersmith and City Railway Co. v. Brand (1869), 38 L.J.Q.B. 265; Geddis v. Proprietors of the Bann Reservoir (1878), 3 App. Cas. 430; Metropolitan Asylum District v. Hill (1881), 6 App. Cas. 193; London, Brighton, and South Coast Railway Co. v. Truman (1885), 11 App. Cas. 45; City of Manchester v. Farnworth, [1930] A.C. 171; Stephens v. Village of Richmond Hill, [1956] O.R. 88; City of Portage La Prairie v. B.C. Pea Growers Ltd. (1963), 45 W.W.R. 513, aff'd (1964), 50 W.W.R. 415, aff'd [1966] S.C.R. 150; Royal Anne Hotel Co. v. Ashcroft (1976), 1 C.C.L.T. 299, aff'd [1979] 2 W.W.R. 462; Wiebe v. Rural Municipality of De Salaberry (1979), 11 C.C.L.T. 82; referred to: Guelph Worsted Spinning Co. v. City of Guelph (1914), 18 D.L.R. 73; District of North Vancouver v. McKenzie Barge & Marine Ways Ltd., [1965] S.C.R. 377; City of Campbellton v. Gray's Velvet Ice Cream Ltd. (1981), 127 D.L.R. (3d) 436; Temple v. City of Melville (1979), 105 D.L.R. (3d) 305; Fairview Suede and Leather Specialists Ltd. v. City of Dartmouth (1980), 40 N.S.R. (2d) 313; Buysse v. Shelburne (1984), 28 C.C.L.T. 1; Schenck v. The Queen in Right of Ontario (1981), 34 O.R. (2d) 595 (H.C.), aff'd (1984), 49 O.R. (2d) 556 (C.A.), aff'd sub nom. Schenck v. Ontario (Minister of Transportation and Communications), [1987] 2 S.C.R. 289.
By La Forest J.
Distinguished: Rylands v. Fletcher (1868), L.R. 3 H.L. 330; referred to: Rickards v. Lothian, [1913] A.C. 263; Pride of Derby and Derbyshire Angling Association Ld. v. British Celanese Ld., [1953] Ch. 149; Walter v. Selfe (1851), 4 De G. & Sm. 315, 64 E.R. 849; Bamford v. Turnley (1862), 3 B. & S. 66, 122 E.R. 27; St. Helen's Smelting Co. v. Tipping (1865), 11 H.L.C. 642; Royal Anne Hotel Co. v. Ashcroft, [1979] 2 W.W.R. 462; City of Portage La Prairie v. B.C. Pea Growers Ltd., [1966] S.C.R. 150; Russell Transport Ltd. v. Ontario Malleable Iron Co., [1952] 4 D.L.R. 719; Vaughan v. Taff Valley Railway Co. (1860), 29 L.J. Ex. 247; Geddis v. Proprietors of the Bann Reservoir (1878), 3 App. Cas. 430; City of Manchester v. Farnworth, [1930] A.C. 171; Schenck v. The Queen in Right of Ontario (1981), 34 O.R. (2d) 595 (H.C.), aff'd (1984), 49 O.R. (2d) 556 (C.A.), aff'd sub nom. Schenck v. Ontario (Minister of Transportation and Communications), [1987] 2 S.C.R. 289; Bishop v. Town of Gander (1986), 60 Nfld. and P.E.I.R. 310; Vergamini v. Regional Municipality of Hamilton‑Wentworth (1986), 54 O.R. (2d) 494; Arif v. City of Fredericton (1986), 77 N.B.R. (2d) 34.
By Sopinka J.
Referred to: City of Manchester v. Farnsworth, [1930] A.C. 171; City of Portage La Prairie v. B.C. Pea Growers Ltd., [1966] S.C.R. 150; Schenck v. Ontario (Minister of Transportation and Communications), [1987] 2 S.C.R. 289; Royal Anne Hotel Co. v. Ashcroft, [1979] 2 W.W.R. 462; Temple v. City of Melville (1979), 105 D.L.R. (3d) 305; City of Campbellton v. Gray's Velvet Ice Cream Ltd. (1981), 127 D.L.R. (3d) 436; Allen v. Gulf Oil Refining Ltd., [1981] 1 All E.R. 353; Tate & Lyle Industries Ltd. v. Greater London Council, [1983] 1 All E.R. 1159.
Statutes and Regulations Cited
Municipalities Act, S.N. 1979, c. 33, s. 154 (1), (2), (3).
Authors Cited
Fleming, John G. The Law of Torts, 5th ed. Sydney: Law Book Co., 1977.
Fleming, John G. The Law of Torts, 6th ed. Sydney: Law Book Co., 1983.
Linden, Allen M. Canadian Tort Law, 4th ed. Toronto: Butterworths, 1988.
Linden, Allen M. "Strict Liability, Nuisance and Legislative Authorization" (1966), 4 Osgoode Hall L.J. 196.
McLaren, John P. S. "Nuisance in Canada", in A. M. Linden, ed., Studies in Canadian Tort Law. Toronto: Butterworths, 1968.
Prosser, W. L. "The Principle of Rylands v. Fletcher," in Selected Topics on the Law of Torts. Buffalo: Hein & Co., 1982.
Salmond on the Law of Torts, 17th ed. by R. F. V. Heuston. London: Sweet & Maxwell, 1977.
Street, Harry. The Law of Torts, 6th ed. London: Butterworths, 1976.
Williams, David W. "Non‑natural Use of Land" (1973), 32 Cambridge L.J. 310.
APPEAL from a judgment of the Newfoundland Court of Appeal (1986), 62 Nfld. & P.E.I.R. 133, 190 A.P.R. 133, allowing an appeal from a judgment of Adams C.J. Dist. Ct. (1983), 45 Nfld. & P.E.I.R. 197, 132 A.P.R. 197. Appeal allowed.
Kevin Stamp, for the appellants.
Thomas J. O'Reilly, Q.C., and Paul M. McDonald, for the respondent.
//La Forest J.//
The reasons of Dickson C.J. and La Forest J. were delivered by
LA FOREST J. -- This appeal raises the important question whether a municipal authority which operates and maintains a sewer may, in the absence of negligence on its part, incur liability to a person whose property is damaged as a result of flooding caused by a random blockage of the sewer.
Facts
The appellants, Neil and Linda Tock, have a house in East Meadows in the St. John's Metropolitan Area. The respondent, the St. John's Metropolitan Area Board, operates the water and sewer system in the area.
In the early afternoon of October 10, 1981, a day of exceptionally heavy rainfall, the Tocks discovered that a large amount of water had entered their basement. They immediately notified the Board and attempted, in vain, to pump the water out themselves. Two employees of the Board came to inspect the storm sewer in the vicinity and determined that the sewer was blocked. A crew was summoned and by early evening it had located and removed the blockage. Within ten to fifteen minutes of the removal, the water drained from the basement which had, by this time, incurred substantial damage.
The Tocks brought an action against the Board in the District Court of Newfoundland. They claimed that the obstruction was caused by the negligence of the Board in the construction or maintenance of the storm sewer, relying on the doctrine of res ipsa loquitur. They also invoked the rule in Rylands v. Fletcher (1868), L.R. 3 H.L. 330, and in the alternative, alleged that the Board was liable on a claim for nuisance.
The Courts Below
The trial judge, Adams C.J. Dist. Ct., held that the flooding was caused by the blockage and not by the exceptionally heavy rainfall. He went on to dismiss the claim in negligence, holding that the Board had not been negligent in the construction, maintenance or operation of the storm sewer. He did, however, hold that the escape of the water into the Tock's residence constituted a serious interference with their right of enjoyment of their property and, in consequence, allowed the claim in nuisance. In his opinion, the collection and drainage of water from rain or other sources constituted a non-natural user of land within the meaning of the rule in Rylands v. Fletcher. In the result, the trial judge awarded the Tocks a total of $13,456.11 in damages.
The Newfoundland Court of Appeal reversed this judgment. Gushue J.A., writing for a unanimous court, held that the rule in Rylands v. Fletcher had no application. In his view, the provisioning of an indispensable service such as a water and sewer system could not be held to constitute a non-natural user of land within the meaning of the rule.
On the question of nuisance, Gushue J.A. expressed the view that a claim in nuisance would not lie against a municipal corporation for damage resulting from a service provided under statutory authority if that body could establish that the occurrence complained of was inevitable in the sense that it could not have been avoided by the exercise of all reasonable and available expertise and care in the design, construction and operation of the service. On the facts, he concluded that the Board had satisfied the onus of demonstrating that it had done everything that could reasonably be expected to avoid the occurrence.
The question of negligence was not in issue in the Court of Appeal. Nor was it raised on the appeal to this Court. I turn then to an examination of the other grounds.
The Rule in Rylands v. Fletcher
As noted above, the Court of Appeal held that the trial judge erred in holding that the construction of a sewer system would trigger the application of the rule in Rylands v. Fletcher on the ground that the sewer constituted a non-natural user of land. I share the conclusion of the Court of Appeal.
The definitive statement of the meaning to be ascribed to Lord Cairn's qualification in Rylands v. Fletcher, at pp. 338-39, that strict liability would only attach in respect of "non-natural user" of land is generally agreed to be that of Moulton L.J. in Rickards v. Lothian, [1913] A.C. 263, at p. 280. Moulton L.J. thus expressed himself:
It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.
The courts, as noted by Fleming, The Law of Torts, 6th ed., at p. 308, have, on the basis of this qualification, interpreted the notion of non-natural user as a flexible concept that is capable of adjustment to the changing patterns of social existence.
In the evolution of the patterns of social existence since the formulation of the rule in Rylands v. Fletcher, one of the most salient developments has been the ever-increasing degree of involvement by all levels of government in land planning. The point is nicely put by Williams in his article "Non-natural Use of Land" (1973), 32 Cambridge L.J. 310, at p. 319, when he argues that the existence of planning authorities which ensure that virtually all development of land occurs pursuant to planning decisions "puts the question of land use into a completely different context to that in which Messrs. Rylands and Horrocks built their little reservoir".
Public sewerage and drainage systems are an indispensable part of the infrastructures necessary to support urban life, and it is clear in my mind that the storm sewer in question here was constructed pursuant to planning decisions of the very sort alluded to in Williams' comments. As such, it would be difficult to conceive of a user of land falling more squarely within those that may be said to be ordinary and proper for the general benefit of the community; see the obiter remarks of Lord Denning to the same effect in Pride of Derby and Derbyshire Angling Association Ld. v. British Celanese Ld., [1953] Ch. 149, at p. 189.
In summary, if, as argued by Prosser at p. 147 of his essay "The Principle of Rylands v. Fletcher," in Selected Topics on the Law of Torts, the touchstone for the application of the rule in Rylands v. Fletcher is to be damage occurring from a user inappropriate to the place where it is maintained (Prosser cites the example of the pig in the parlour), I would hold that the rule cannot be invoked where a municipality or regional authority, acting under the warrant of statute and pursuant to a planning decision taken in good faith, constructs and operates a sewer and storm drain system in a given locality.
To characterize a given use of land as appropriate to that locality does not, however, provide an answer to the question whether damage occasioned by that activity constitutes a nuisance. It is to that question that I now turn.
Nuisance
Generically, as Salmond on the Law of Torts, 17th ed. by R. F. V. Heuston, at p. 50, notes, "nuisances are caused by an act or omission, whereby a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land". The same passage makes it clear that a nuisance may take a variety of forms, ranging from actual physical damage to land to interference with the health, comfort or convenience of the owner or occupier of land.
The assessment whether a given interference should be characterized as a nuisance turns on the question, simple to state but difficult to resolve, whether in the circumstances it is reasonable to deny compensation to the aggrieved party. The courts have traditionally approached this problem of reconciling conflicting uses of land with an eye to a standard based, in large part, on the formulations of Knight Bruce V.-C. in Walter v. Selfe (1851), 4 De G. & Sm. 315, 64 E.R. 849, and Bramwell B. in Bamford v. Turnley (1862), 3 B. & S. 66, 122 E.R. 27, at pp. 83-84 and at pp. 32-33 respectively. There it was observed that the very existence of organised society depended on a generous application of the principle of "give and take, live and let live". It was therefore appropriate to interpret as actionable nuisances only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes. In effect, the law would only intervene to shield persons from interferences to their enjoyment of property that were unreasonable in the light of all the circumstances.
The courts are thus called upon to select among the claims for interference with property and exclude those based on the prompting of excessive "delicacy and fastidiousness", to employ the terms of Knight Bruce V.-C. The courts attempt to circumscribe the ambit of nuisance by looking to the nature of the locality in question and asking whether the ordinary and reasonable resident of that locality would view the disturbance as a substantial interference with the enjoyment of land. Among the criteria employed by the courts in delimiting the ambit of the tort of nuisance are considerations based on the severity of the harm, the character of the neighbourhood, the utility of the defendant's conduct, and the question whether the plaintiff displayed abnormal sensitivity.
It is important to bear in mind, however, that these criteria find their greatest application in cases where the interference complained of does not consist of material damage to property but rather interference with tranquility and amenity, i.e., what Westbury L.C. in St. Helen's Smelting Co. v. Tipping (1865), 11 H.L.C. 642, at p. 650, classified as "nuisance ... productive of sensible personal discomfort ... anything that discomposes or injuriously affects the senses or the nerves". Where "material damage" is concerned, it is clear that the criteria adverted to above are to be applied with great circumspection; see Russell Transport Ltd. v. Ontario Malleable Iron Co., [1952] 4 D.L.R. 719, at pp. 729-30 per McRuer C.J.H.C. In the presence of actual physical damage to property, the courts have been quick to conclude that the interference does indeed constitute a substantial and unreasonable interference with the enjoyment of property. As put by Westbury L.C. in St. Helen's Smelting Co. v. Tipping, supra, at pp. 650-51:
... the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.
On the basis of the foregoing considerations, I conclude that the escape of water at issue here would clearly constitute a compensable nuisance were this a case opposing two private individuals. The same view was taken by McIntyre J.A., later of this Court, in the very similar case of Royal Anne Hotel Co. v. Ashcroft, [1979] 2 W.W.R. 462 (B.C.C.A.) The question thus becomes that of determining whether it is reasonable to deny compensation to the appellants because of the fact that they suffered the damage at the hands of a body exercising statutory authority. This requires a consideration of the defence of statutory authority.
Statutory Authority
Briefly put, the test applied by the courts when faced with the decision whether a nuisance may be defended on the ground that it was created pursuant to the exercise of statutory authority takes the form of inquiring whether the statute expressly or impliedly authorizes the damage complained of, and whether the public or other body concerned has established that the damage was inevitable. This was the test applied by this Court in City of Portage La Prairie v. B.C. Pea Growers Ltd., [1966] S.C.R. 150.
The approach to this defence, though considerably refined, is a legacy of the Victorian age. The gist of the doctrine as it then emerged was to the effect that in the absence of negligence no action would lie for damage occasioned by a body acting within the confines of its statutory authority. Negligence, it may be noted, was understood in a special sense as the failure on the part of the body to observe all precautions consistent with the carrying out of the activity in question; see Vaughan v. Taff Valley Railway Co. (1860), 29 L.J. Ex. 247, passim. The locus classicus is that of Blackburn L.J. in Geddis v. Proprietors of the Bann Reservoir (1878), 3 App. Cas. 430 (H.L), at pp. 455-56:
For I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorized, if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented it is, within this rule, "negligence" not to make such reasonable exercise of their powers. I do not think that it will be found that any of the cases (I do not cite them) are in conflict with that view of the law.
In his essay "Strict Liability, Nuisance and Legislative Authorization" (1966), 4 Osgoode Hall L.J. 196, at p. 202 ff., Professor, now Justice, Linden makes the point that the formulation of the doctrine of immunity reposed on a supposed divination of legislative intent, for the statutes which authorized undertakings were normally silent as to the effect of the legislation on tort liability. As he notes, the emergence in the 19th century of a doctrine conferring substantial immunities on public authorities corresponded to then pressing policy reasons. He states at p. 199:
Perhaps the most important policy reason for the creation of the immunity was the desire to promote industrial expansion and to refrain from saddling infant industries with legal responsibility for their non-negligent conduct. Legislative authority was generally used in cases involving semi-public activities such as railways, roadbuilding, canals and hospitals. These types of enterprise were even more vital to the economy than were other industries and thus deserving of additional protection from civil liability.
It is clear, however, that the concern that the imposition of tort liability would nullify the ability of public and semi-public bodies to carry out what was authorized by the legislature has waned in this century, giving way, in considerable measure, to the notion that it is unreasonable to immunize these bodies from tort liability. As Linden, op. cit., at p. 202 puts it, the broad immunity previously given public bodies is now in the process of "contraction and decay". The rationale for this shift may be said to lie in the perception that, when an individual suffers damage attributable to such a body, it is only just that the cost of this damage should be absorbed by it and thus become a charge on all those who benefit from the service, rather than being laid at the feet of the hapless individual who has been injured or incurred damage; see McLaren, "Nuisance in Canada," in A. M. Linden, ed., Studies in Canadian Tort Law, at p. 372.
This shift away from the notion that public authorities as such should enjoy an immunity from liability in tort was effected by means of a number of techniques developed by the courts for eliciting the supposed intent of the legislature; see McLaren, op. cit., at pp. 372-73; Linden, op. cit., at pp. 201 et seq. Thus, liability has turned on the question whether the statute should be characterized as mandatory or permissive, the basis for the distinction being the premise that, where the legislature has merely accorded a power as opposed to having mandated the doing of a particular thing in a given locality, it is to be supposed that the power is meant to be exercised in strict conformity with individual rights.
Again, rather than applying a presumption that the authorizing statute impliedly sanctioned the invasion of individual rights, the courts have sought to determine whether the nuisance would inevitably arise from the construction or operation of the authorized work. Damage is said to be "inevitable" when the body responsible for it establishes to the satisfaction of the court that it was demonstrably impossible to avoid the damage inasmuch as it had carried out its operations with a degree of skill and care commensurate with current scientific and technical knowledge, but with due allowance for practical considerations bearing on time and expense. On proof of inevitability, a plaintiff is denied redress. Viscount Dunedin put it this way in City of Manchester v. Farnworth, [1930] A.C. 171 (H.L.), at p. 183:
When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.
Though the words of Viscount Dunedin have now taken on the aura of dogma, the question of what is meant by inevitability invites scrutiny.
In the case before us, the Court of Appeal took the view that a statutory body would establish the inevitability of damage on a showing that it had not been negligent in its operation of the system in question. This emerges from the following passages from its decision, at p. 136 and p. 139:
As a general rule, municipal authorities have not been held liable in nuisance by the courts if the municipality has been authorized by the Legislature to construct and maintain an undertaking or work, the nature of which may involve interference with the rights of individuals, where negligence has not been demonstrated.
. . .
I think it unnecessary to go to either extreme to establish inevitability because in my view what is really meant by inevitability is "unavoidability". Thus, a municipal corporation, acting under statutory authority, may successfully defend an action in nuisance if it can establish that the occurrence complained of was inevitable in the sense that it could not have been avoided by the exercise of all reasonable and available expertise and care in the design, construction and operation of the works from which the nuisance emanated. This obviously comes very close to stating that the onus on the municipality is to disprove negligence . . . .
. . .
It is established that there was no negligence by the municipality and I am unable to conclude that the municipality created any nuisance. As stated, the mere fact of the interference with the respondent's land does not in my view create a nuisance because, while unfortunate, there was no "unreasonableness" which can be ascribed to the appellant municipality.
The problem with this approach is that it directs the focus of the inquiry solely on the conduct of the defendant. Yet the fundamental issue before the court in a claim for nuisance is not whether the defendant has acted prudently. Rather, the issue for determination is whether, on a consideration of all the circumstances, it is reasonable or unreasonable to award compensation for the damage suffered. McIntyre J.A., as he then was, put the point well in Royal Anne Hotel Co. v. Ashcroft, supra, when after noting (at pp. 465-66) that the most carefully designed industrial plant operated with the greatest care could cause a nuisance, he added, at p. 467:
In my opinion the rationale for the law of nuisance in modern times, whatever its historical origins may have been, is the provision of a means of reconciling certain conflicting interests in connection with the use of land, even where the conflict does not result from negligent conduct. It protects against the unreasonable invasion of interests in land.
The meaning of what constitutes an "unreasonable" invasion accordingly cannot turn on the sole question whether the defendant has taken reasonable care in the circumstances.
I would therefore respectfully reject the view of the Court of Appeal that the test whether a given occurrence is "inevitable" turns on whether the accident was bound to occur despite the exercise of "reasonable and available expertise and care in the design, construction and operation of the works from which the nuisance emanated". The test for inevitability does not, in my view, centre on whether a particular infrastructure with all its deficiencies is bound to produce occurrences of the nature complained of. What Viscount Dunedin's statement in the City of Manchester case invites the courts to do, as I see it, is to take a broad view of the matter and to ask whether, having regard both to the technical knowledge available to the public body concerned, and the limitations of cost, it was demonstrably impossible for it to provide the service without causing a nuisance. This is obviously a question of quite a different order from asking whether it was demonstrably impossible for that body, with the equipment it had in place or with the level of service it chose to provide, to avoid causing the damage through the exercise of due care.
The invitation proffered by Lord Dunedin has been accepted by a number of Canadian courts; see especially Royal Anne Hotel Co. v. Ashcroft, supra; Schenck v. The Queen in Right of Ontario (1981), 34 O.R. (2d) 595 (H.C.), aff'd (1984), 49 O.R. (2d) 556 (C.A.), aff'd sub nom. Schenck v. Ontario (Minister of Transportation and Communications), [1987] 2 S.C.R. 289; Bishop v. Town of Gander (1986), 60 Nfld. and P.E.I.R. 310 (Nfld. S.C.) These courts, while according due respect to the traditional garb in which the defence of statutory authority was clothed, were not dissuaded from reformulating the law to meet modern conditions and values. Some courts, however, including, with deference, the Court of Appeal in this case, appear to have been misled by the traditional verbiage and failed to follow this development; see, for example, Vergamini v. Regional Municipality of Hamilton-Wentworth (1986), 54 O.R. (2d) 494 (Ont. Dist. Ct.)
The truth is that there is an air of unreality and contrivedness to the defence of statutory authority in this context, however one may seek to rationalize it. Where the statute in question does not expressly exempt a body for damages in nuisance, or, in the alternative, does not provide for a compensation scheme of its own or contain other clear legislative indications, I doubt that divination of an unexpressed intent of the legislature can shed much light on the question whether the person who has suffered damage should be denied compensation. At this remove from the 19th century, therefore, it would seem appropriate to reformulate the law in more functional terms. To give one instance, I would reject the notion that the distinction as to whether a statute is permissive or mandatory is, without more, determinative. Thus, if one looks at the statute authorizing the storm drain in question here, it is clear that the statute is framed in permissive terms. By application of the traditional test, this would ground the presumption that the sewer was meant to be built in strict conformity with private rights, whereas, had the statute been mandatory, the operative presumption would have been that the statutory powers were merely to be exercised without negligence, as that term was defined earlier. But I cannot see how liability for nuisance can credibly be said to depend on whether the legislature has conferred a general power to build sewers that, on all accounts, it must be taken to know will be built as and where the demand arises, or whether it goes to the trouble of passing a special enactment to authorize each sewer in turn. Whatever statutory route is taken will result in the construction of sewerage and drainage facilities in the same locations, and the nature of the authorization cannot, in all reason, have any bearing on the question whether compensation is owed, or is not owed, for damage suffered as a consequence of the operation of the sewer.
Turning to the question of inevitability, it seems to me that, in strict logic, most nuisances stemming from activities authorized by statute are in fact inevitable. Certainly, if one is to judge from the frequency with which storm drain and sewer cases occur in the reports, it would seem a safe conclusion that blockage of such systems is inevitable if one accepts this to mean that it is demonstrably impossible to operate these systems without such occurrences. But what escapes me is why any particular importance should be accorded this fact when weighing a nuisance claim against a statutory authority. The fact that the operation of a given system will inevitably visit random damage on certain unfortunate individuals among the pool of users of the system does not tell us why those individuals should be responsible for paying for that damage.
This rationale was recently adverted to by Robins J. in Schenck v. The Queen in Right of Ontario, supra, where fruit farmers successfully sued the Ontario Government in nuisance for damage resulting to their orchards adjacent to provincial highways from the application of salt to the highways to permit winter travel. In reasons successively approved by the Ontario Court of Appeal and this Court, Robins J. perceptively observed that arguments about inevitability are essentially arguments about money. This was recently followed in Bishop v. Town of Gander, supra, which involved a ruptured water main. There, Barry J. had this to say, at p. 332:
In the case of Schenck v. The Queen (supra), the basis of the argument against the assumption of liability by the municipality, as in this instance, was essentially one of money, i.e. the high cost of paying the resulting damages or of avoidance of the risk of damage. If courts were to accept that contention, municipalities would be able to economise on such expensive capital works as water systems without resp