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Hickey v Electric Reduction Co of Canada (1970), 21 DLR (3d) 368 (Nfld SC)

Facts:

Fishermen (Hickey: P) seek a private nuisance action against phosphorous plant (D) for pollution of waters, killing fish. P claimed that it wasn’t just fishers, but that the nuisance applied to everyone.

Issue(s):

When is a plaintiff permitted to maintain a private action for public nuisance?

Ratio:

Private action for public nuisance is only sustainable where the private damage is peculiar, particular, and distinct from that of the general public.

Analysis:

Furlong CJ:
** Yes, there could be a public action for private nuisance, but this isn’t one of those situations.
*** Public right to fish in the sea: any interference is a public nuisance.
*** Pollution is a public nuisance, so this should not be dealt with as a private tort action. You have to suffer a DIFFERENT injury than everyone else. Different in TYPE, not just different in EXTENT.

Per McRae v British Norweigian Whaling [1927-31]: The right to fish in the sea is a public right available to all the King’s subjects. Therefore, here the usual remedies to vindicate a public right must be employed.

Per Fillion v New Brunswick Int’l Paper Co. [1934]: Where a nuisance or injury is common to the whole public the remedy is by indictment but that no private right of action exists unless there is a special or particular injury to the plaintiff. Here, the pollution of the waters of Placentia Bay, which harmed the public fishery, is an interference of a public right. Any person who suffers peculiar damage has a right of action but where the damage is common to all persons of the same class, then a personal right of action is not maintainable.

Holding:

Private action denied. Decision in favour of Electric Reduction Co of Canada.


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