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.
When is a plaintiff permitted to maintain a private action for public nuisance?
Private action for public nuisance is only sustainable where the private damage is peculiar, particular, and distinct from that of the general public.
** 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. : 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.
Private action denied. Decision in favour of Electric Reduction Co of Canada.