Nuisance is a common law tort, and it is a form of strict liability that is not concerned with fault or misconduct. Rather, it is a social ordering law based on imposing responsibility or legal liability when an owner’s use of his or her property unreasonably interferes with the use and enjoyment of land by others. Generally speaking, whether the landowner’s unreasonable use was intentional, negligent or innocent is of no consequence if the harm can be categorized as a nuisance. What is unreasonable reflects the ordinary usages of people living in society, and determining unreasonableness involves balancing competing rights of landowners. See Pugliese v. Canada (National Capital Commission) (1977), 17 O.R. (2d) 129, [1977] O.J. No. 2370 (C.A.), vard [1979] 2 S.C.R. 104, [1979] S.C.J. No. 34; Sedleigh-Denfield v. O’Callaghan, [1940] A.C. 880, [1940] 3 All E.R. 349 (H.L.).
[34] The law of nuisance also imposes responsibility on a land-owner for the natural state or conditions of his or her property if the owner is aware or ought to have been aware that the state of the property is a nuisance to neighbours: Sedleigh-Denfield v. O’Callaghan, supra; Schoeni v. King, [1944] O.R. 38, [1943] O.J. No. 493 (C.A.); Doucette v. Parent, [1996] O.J. No. 3493, 14 O.T.C. 354 (Gen. Div.); Hayes v. Davis, [1989] B.C.J. No. 2381 (S.C.); Leakey v. National Trust for Places of Historic Interest or Natural Beauty, [1980] 1 All E.R. 17, [1980] Q.B. 485 (C.A.); Guinan v. Ottawa (City), [2010] O.J. No. 6019, 2010 ONSC 807 (S.C.J.).
[35] Doucette v. Parent, supra, was a case involving a diseased tree, and although Justice Valin dismissed the claim for damages arising from natural conditions, he described the applicable law, at para. 32, as follows:
The Leakey test, established specifically for hazards occurring on an occupier’s land, and the more general “reasonable use” test referred to by Fleming and Street and cited with approval by McIntyre J. in St. Pierre [[1987] 1 S.C.R. 906], are essentially compatible. The common element appears to be whether or not the defendant had or ought to have had knowledge regarding a potentially dangerous situation created by the defendant’s trees vis-à-vis his neighbour. With respect to latent defects, a defendant is not liable in nuisance unless he/she fails to remedy it without undue delay when he/she becomes aware of it or with ordinary and reasonable care should become aware of it.
[36] Under the law of nuisance, property owners are entitled to resort to self-help remedies to eliminate a continuing nuisance caused by roots and branches from trees, or the court may order that the nuisance be abated or removed: Yates v. Fedirchuk, [2011] O.J. No. 4718, 2011 ONSC 5549 (S.C.J.),
*source: Ontario Reports
