Nuisance and Trespass to Property

Ron recently represented a client on a matter involving nuisance and trespass to property.  There is a two part test to establishing private nuisance.  Nuisance is the substantial and unreasonable interference with the property by the defendant.  The plaintiff must first prove that the interference is substantial; then the plaintiff must prove that the interference is unreasonable in light of all the relevant circumstances.  The court balances the gravity of the harm against the utility of the defendant’s conduct.  The judge may consider the severity of the interference, the character of the neighbourhood, the sensitivity of the plaintiff to the harm caused, as well as the frequency and duration of the interference.  This is not an area of law that lends itself to a black and white analysis.  These matters become even more complex when assessing damages flowing from the unlawful nuisance and trespass.  The onus is on the plaintiff to establish this damage.  If the claim is for loss of productivity in a business, expert evidence will be required.  As in many areas of business litigation, the cost of proving damages at a trial may exceed the amount to be won.