The Tocks' basement begins to fill with water during heavy rainfall. They notify the Metropolitan Area Board and start pumping out water. M comes in to find out that it is a blocked sewer. M unblocks sewer, but by the time it drains, the basement has suffered significant damage.
At trial, the court held that the damage was because of blocked sewer and not rainfall. Therefore it is nuisance.
On appeal, the court reversed the trial decision: No claim in nuisance against municipality for damage that comes from a service provided by statutory authority unless reasonable due diligence has not been exercised.
Is the nuisance claim against M barred by the defence of statutory authority?
Three different approaches to the defence of statutory authority:
** La Forest: Statutory authority as a defence can be overridden by policy reasons;
** Wilson et al: If the language of the statute is permissive, there must be conformity with private rights. If this conformity is not achieved, the defence of statutory authority is not applicable;
** Sopinka: The defence of statutory authority applies only if the defendant proves that it was practically impossible to avoid creating the nuisance.
SCC upholds nuisance claims, with 3 different decisions (that all agree in result, but each uses a different approach to the question of stat authority)
1. La Forest:
** Stat authority as a defence should be overridden by policy reasons.
2. Wilson et al:
** Disagreed with La Forest.
** If statutory authority defence is to be gotten rid of, that is for the legislature.
** Sets out process of analysis starting with the recognition that the flooded basement does interfere with the use and enjoyment of the property.
*** Once that’s recognized, then check to see if there is a statutory authority that is relevant
*** Looks at provisions and their permissive language.
*** Nuances statutory authority: Recovery in nuisance should be allowed unless you can show that there was either express language in the statute allowing interference with P’s space; if there isn’t express language, it may be a necessary implication from the language of the stat plus a factual finding that the damages is an inevitable consequences of the stat powers.
*** Because language of stat is permissive, it had to be done in conformity of private rights; Not done here, so no defence of stat authority.
3. Sopinka (one followed)
** Recognizes tension between private rights and an expectation that they be sacrificed for the public good.
** Given that, the onus has to be on defendant to make the statutory authority argument, and that there will be an incredibly high threshold for it to be successful.
** Followed by Ryan v City of Victoria (1999): Def of statutory authority applies only if the def proves that it was practically impossible to avoid creating the nuisance.