To: Senior Partner

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Date:

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Subject:

1. Executive Summary

The purpose of this memo is to establish whether Spirits of Saskatchewan is committing a private nuisance against our client, Brenda. 

Spirits of Saskatchewan are committing a private nuisance because there is substantial interference from the distillery, which is non-vital and reasonable. The pungent smells and noise from the distillery are posing a threat towards Brenda and her clients’ enjoyment and actual use of the property. The severity of harm is substantial because, in 2019, Brenda acquired $ 50,000 as gross income from her business. The $ 50,000 was a loss because she had properly advertised the business through social media, and as a result of the foul smells and noise from the distillery, she got bad reviews, and hence clients canceled, and some asked for discounts. Further, in 2020 she got $30,000, which is a loss. Spirits of Saskatchewan statutory defense will not succeed because the statutory authority did not authorize emitting dangerous effluents. 

2. Facts

Brenda lives in Valley Road, a portion of Highway 762 South of Saskatoon. She lives 10 minutes away from her grandmother. Valley Road is home to several acreages of land whereby people live and run businesses like greenhouses, berry picking operation, turf production, mini-golf houses, and restaurants. 

Celeste, Brenda’s grandmother, is 96 years old and has dementia; hence she lives in a nursing home. Brenda has recently started running a business at her grandmother’s property in Valley road. Celeste has lived on the land for sixty years, and before her admission at the nursing home, she was carrying out a small stable business, keeping an average of 3-20 horses.

Celeste has neighbors Sandra and Joe, who runs a distillery business called ‘Spirits of Saskatchewan,’ producing spirits from berries located on the property since 2010. In 2013, they expanded their business and planted a small orchard. Sandra and Joe are aware of Brenda’s presence on Celeste’s property, but they are not particularly friends.

In 2017, Brenda started running a business known as Country Road Events southeast of Celeste’s property. The business hosts weddings and business retreats during summer and fall. The business grossed $ 75,000 in 2017, and the proceeds doubled in 2018 because Brenda had several social media influencers who ran a campaign for her on the authenticity of her business. As a result of Brenda’s successful campaign, Country Road events were successfully booked from May 1 – September 30, 2019. Brenda anticipated that her business would gross to $250,000 in 2019.

Without her knowledge, Sandra and Joe in the fall of 2018 built a bigger distillery in the southwest corner of their property near the barn, which they assumed was abandoned. The new distillery is 100 meters away from the property line than the barn, which is 10 meters away from the property line. While building the distillery, Sandra and Joe consider the property’s noise and fumes; hence, they proposed locating it away from Celeste’s property. Sandra and Joe successfully obtained the necessary approvals to discharge effluents for the distillery into the stream and ultimately into the river. They also have the necessary approvals to withdraw water from the river to use in their distillery operation.

Sandra and Joe are not on social media; hence they do not know Brenda’s events business. They financed their distillery with $2,000,000, and it began production in June 2019, when Brenda’s rental business was offseason. The distillery business runs from Monday to Saturday from 9 am to 8 pm with minimal staffing requirements as it is automated.

In June, when the distillery began operating, Brenda was setting up a wedding at the barn. As she approached the barn, she began hearing a humming noise. When she exited her car, it was difficult for her to continue with her phone conversation. However, inside the barn, the noise was somewhat reduced, but she could not communicate clearly with the florist. She also noticed a foul smell and observed brownish liquid flowing from a pipe connected to the building into the stream.

The guests from the wedding complained of the noise and the foul smell that dominated the environment. Brenda tried to mitigate the bad smell with candles, fans, and essential oils, and she tried to mitigate the loud noise with an expensive sound system. The impact was reduced, but guests still complained. As a result of the foul smell, the noise, and the guests’ headaches, they gave bad reviews on yelp, google, and Brenda’s social media accounts. Due to the bad reviews, 10 large events have been canceled, and she also had to offer reduced rates to 20 other events. She did not get the expected $250,000; her business grossed to $50,000 in 2019. Brenda offered discounted rates for bookings in 2020 in an attempt to keep her business afloat. Due to low bookings in 2020, her business grossed to $ 30,000.

Brenda was unable to reach Sandra and Joe until August since they had traveled across Canada and had left their distillery in the capable hands of their employees who visited irregularly as the distillery was automated. When they communicated in August, they expressed their surprise that Brenda was operating an events business on Celeste’s property. Sandra and Joe informed her of their significant investment in the distillery and had no plans to stop or alter its use. Celeste is not aware of the dispute and would presumably have no interest in commencing a nuisance action against her neighbors who have been her friends. Brenda wants an injunction in place against Spirits of Saskatchewan for the upcoming 2021 event season.

3.  Issues

  1. What are the elements of private nuisance?
  1. Whether the personal discomfort felt Brenda and her clients constitutes sufficient interference with Brenda’s use and enjoyment to entitle them to sue for nuisance
  2. Whether Sandra and Joe can claim statutory defense for breach of riparian rights

4. Discussion

i. What are the elements of private nuisance?

A nuisance constitutes an interference with the claimant’s use or enjoyment of land that is both substantial and unreasonable. To successfully sue in private nuisance, the interference must be substantial and unreasonable.[1] A substantial interference is a non-trivial one. When the standard of non-trivial is met, the inquiry proceeds to the reasonableness analysis. The reasonableness analysis takes into consideration whether the non-trivial interference was also unreasonable in all of the circumstances.[2]Substantial interference means that the interference interferes with the actual use of the property to a significant extent. Actionable nuisances are those inconveniences that interfere with ordinary comfort materially. 

In Antrim Truck Center Ltd v Ontario, the ministry of transportation’s actions constructing a Highway that runs parallel to the plaintiff’s property was considered substantial interference. The plaintiff had a truck shop that included a gift shop, gas and diesel bar, offices, truck sales, leasing, and service center. As a result of the construction of the highway, the plaintiff’s businesses were affected adversely.[3] In determining whether the defendant’s action amounted to substantial interference, the judge held that reasonableness of interference is determined by balancing the competing interests. Whether, in all of the circumstances, the individual claimant has shouldered a greater share of the burden of the construction, it would have been reasonable to expect the individual to bear without compensation. Here, the appellant’s construction of a new highway amounted to significant permanent loss. This case is highly persuasive.

In Innes v Kotylak, the plaintiff’s soil mixing and gravel pit actions were causing interference to the Kotylaks. The Kotylaks argued that the plaintiff’s operations were disrupting their actual use and enjoyment of the land.[4]The noise and dust emitted from the site affected what they expected to be quiet rural acreage. They also alleged that the interference caused substantial loss as their horse breeding business was affected by the site’s noise. The court held that the interference was substantial and non-trivial as it affected Kotylaks’ willingness to be outside during holidays, Sundays, summer, and fall. Their occupancy period was affected by the noise and dust.

To determine whether there was a nuisance, the interference should be examined to establish whether it affected Brenda’s use and enjoyment of land substantially and unreasonably. Brenda uses the land for an events business and the business did well in 2017 and 2018. The profits doubled in 2018 when compared to 2017. As a result of noise and fumes from the distillery, her business profits have reduced substantially to $ 50,000 in 2019. Her business got bad reviews because of the fumes being emitted have caused her to reduce the rates and some people have canceled their bookings. Owing to the balancing competing interests’ test stipulated in Antrim’s case, Brenda is highly likely to establish a private nuisance.

a. Whether consent precludes an action against nuisance

As held in the Kotylaks case, consent precludes a party from claiming a nuisance.[5]In the Innes v. Kotylak case, they had signed an option to purchase agreement. One of the provisions of the agreement contained Kotylaks’ consent to the nuisance caused by soil mixing. The judge held that consent precludes nuisance. This case is binding.

In Brenda’s case, she was unaware of the new distillery’s construction as it was built during the rental offseason. Brenda is highly likely to claim as she did not consent to the construction of the new distillery. If Sandra and Joe argue that consent precludes an action because of Celeste’s consent to start a winery, such a claim will likely not succeed because Celeste did not consent to establish the bigger distillery. The bigger distillery caused the nuisance.

ii. Whether the personal discomfort felt Brenda and her clients constitutes sufficient interference with Brenda’s use and enjoyment to entitle them to sue for nuisance

“Society is generally based on the principle of ‘give and take, live and let live’ for people to live harmoniously.” However, courts consider some elements to determine whether there has been sufficient interference with amenities and tranquility. Those factors include the severity of the harm, the plaintiff’s sensitivity, the utility of the defendant’s conduct, and the nature of the locality in nature.

a. Nature of the locality in question

In Mandrake Management Consultants Ltd v Toronto Transit Commission,[6]whereby the plaintiffs were complaining of the subway’s noise that it was proving to be a nuisance to them and their employees and clients. When the locality’s nature was considered, there were restaurants and business offices to the east, the Toronto Transportation Commission substation to the south. At the entrance, there were numerous other businesses to the north.[7] If people are operating the business in a commercial locality, they must put up a greater intrusion on sensibility than those residing in an exclusive residential area. This case is highly persuasive.

Brenda is staying and running a business in Valley Road, which is considered a residential and business area in Brenda’s case. Several businesses in the area like restaurants, mini-golf houses, berry picking operations, and greenhouses. This is a commercial area. It is a commercial area; Brenda is expected to be greater intrusion than a residential place. Brenda is more likely than not to prove that the intrusion was great because Valley Road is a fairly commercial area.

Considering the locality nature, Sandra and Joe are likely to prove that Valley Road is a commercial area since restaurants, berry picking operations, and greenhouses. The standard for substantial interference is generally low in a residential place. Hence, Sandra and Joe are likely to claim that the locality’s nature permits greater intrusion successfully.

b. The severity of the harm

To prove the severity of the harm, the courts consider whether the noise and vibrations interfere with a business’s carrying on. In Mandrake Management Case[8], the subway’s noise did not affect the plaintiff’s business negatively; hence, the severity of harm did not suffice.

In Brenda’s case, the distillery’s noise is too loud, and the foul smell has caused headaches to her guests. Despite Brenda’s efforts to install an expensive sound system to mitigate the distillery’s noise, her efforts have proved futile. Also, she tried using candles, fans, and essential oils, but the foul smells have not stopped. As a result of the loud noise and the foul smell, 10 people canceled their bookings in 2019, and she had to reduce rates for 20 people. Her business grossed $ 50,000 in 2019 as opposed to her expected returns of $250,000. In 2020, her business suffered losses and grossed only $ 30,000. The impact of the distillery noises can be considered severe to her business. Hence, Brenda is likely to prove severity.

c. The sensitivity of the plaintiffs

The general rule is no action will lie in nuisance for damage, which results from abnormal sensitivity to injurious influence. In the Mandrake case, the building was old, and the method of construction was more prone to noise and vibrations. Therefore they could not claim a nuisance successfully.[9]

If Sandra and Joe claim that the barn’s proximity to the distillery is abnormal sensitivity, that has a low likelihood to succeed because even the guests from the wedding can attest that the noise and foul smell was too much. The mitigation efforts by Brenda proved futile.

In Brenda’s case, she attempted to mitigate the effects of installing an expensive sound system, but it did not work. Her proximity to the distillers cannot be considered abnormal sensitivity; therefore, she is likely to claim.

d. The utility of the defendant’s conduct

The general rule is that utility to the public is considered. In the Mandrake case, the general significance of the subway was examined. The trial judge found that the subway was essential to Toronto’s citizens and the surrounding areas in their travel to and from the downtown area.[10]The subway was also constructed with advanced technology to mitigate noise pollution, and the defendants made an effort to ensure the subway was in excellent repair. This part of the case is persuasive.

When considering utility to the public, the distillery was for business gains for Sandra and Joe. Compared with the Mandrake case, they have not put in safety measures and mitigation measures to reduce its effects on the public. Their distillery is automatic and operates Monday- Saturday from 9 am to 8 pm hence causing a lot of noise and emitting foul smells for approximately 10 hours a day. The claim against utility by Brenda is likely to succeed.

iii. Whether Sandra and Joe can claim statutory defense for breach of riparian rights

The Aboriginal title gives landowners and people who have an interest in the property the right to use, control land use, and enjoy benefits from land. Landowners do not have to prove their right Aboriginal title and rights before they can get to the courthouse to protect and enforce their rights.[11]Aboriginal rights and title exist; they are not claims. A statutory defense bars nuisance claims if the activity being claimed is authorized under provincial or federal legislation, and the nuisance is the unavoidable result of doing the authorized authority.[12]

In Saik’uz First Nation and Stellat’ en First Nation v Rio Tinto Alcan, the Kenney dam constructed by the defendants caused harm to Nechako River and their fisheries by changing water flows, temperatures, eroding the banks, diverting water, and interfering with the ecological system. The defendants claimed that they had statutory authority to use the dam, and hence a nuisance action cannot suffice against them.[13]In coming up with the holding, the BCCA asked an open question on whether the impact of the Kenney dam complained of by the plaintiffs was an unavoidable result of the water diversion authorized by Alcan’s license and associated instruments. The Court held that the statutory authority did not describe the construction methodology, and it was not known if it could have been constructed to avoid the nuisance. The First Nation case is binding in Brenda’s case.

Sandra and Joe obtained the necessary approvals to discharge the effluent from the distillery into the stream and ultimately into the river. They also have approvals to withdraw water from the river to use in their distillery operation. The distillery is constructed 100 meters away from the property line, whereas; Celeste’s property is only 10 meters away from the distillery. Besides, Sandra and Joe did not discuss their plans for the new distillery with Celeste. While preparing for the wedding, Brenda noticed a brownish liquid flowing from a pipe connected to the building into the stream. 

According to the First Nations case, the statutory authority defense cannot suffice because the statutory authority did not detail how the distillery could be constructed to minimize pollution from the distillery. Further, Sandra and Joe did not consider the proximity of Celeste’s property to the stream. The distillery emits a brown liquid and is close to Celeste’s barn. The statutory authority defense has unlikely chances of success.

5. Conclusion 

In conclusion, Brenda is likely to establish that Spirits of Saskatchewan is committing a private nuisance because the substantial interference is non-trivial and reasonable. It is reasonable because it materially affects the ordinary use and enjoyment of the property by emitting foul smell and loud noise. Secondly, the severity of harm caused by the distillery is a chance for Brenda’s case. Because Brenda is not abnormally sensitive to the harm, her private nuisance claim is likely to succeed. Thirdly, considering the utility of Spirits of Saskatchewan, it is for private use. Sandra and Joe have not put in the necessary equipment to mitigate the noise and smell effects. Hence, Brenda is likely to succeed. Finally, if Spirits of Saskatchewan claims statutory defense for the claim of nuisance, it is likely to fail because it causes harm to neighbor properties as the effluents from the industry flow into a stream.


[1] Antrim Truck Centre Ltd. V. Ontario (Transportation), 2013 SCC 13 (CanLII) [2013] 1 SCR 594

[2] Innes v Kotylak, 2018 SKQB 325 (CanLII)

[3] Supra n 1

[4] Supra n 2

[5] Ibid

[6] Mandrake Management Consultants Ltd .v. Toronto Transit Commission, 1993 CanLII 9417 (ON CA)

[7] Ibid

[8] Supra n 4

[9] Ibid

[10] Supra n 4

[11] Saik’uz First Nation and Stellat’en First Nation .v. Rio Tinto Alcan Inc., 2015 BCCA 154 (CanLII)

[12] Ibid

[13] Supra n 11

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