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“Harold Perry is a shaken man.

And unless he moves his business, he will be for the rest of his working days.

With a ruling from Ontario’s highest court yesterday, his legal battle to stop the rumblings of Toronto subway cars beneath his Bedford Rd. offices came to an abrupt stop.

Three Ontario Court of Appeal judges unanimously overturned a lower-court ruling that the Toronto Transit Commission must pay Perry damages for being a nuisance and remove a ‘frog’ that forms the crossover of two rail lines at the busy St. George station, right outside his door.

The judges also blasted the trial judge for suggesting the ‘frog’ be removed, saying it was a cavalier idea that could have compromised the safety of TTC passengers and besmirched the transit authority’s reputation.

People working in a commercial area can’t expect the same degree of tranquility they would find in a residential neighbourhood, the court said.

While they may cause disruption, transportation networks provide a public service so essential that it outweighs noise complaints or other difficulties for people who work nearby, the judges said.”

–The Toronto Star, 1993(1)

Governments aren’t the only ones who have eroded common law property rights in the name of the public good. The courts themselves have modified both the rules governing liability and the remedies available to those whose rights have been violated, all too often leaving people powerless to oppose environmental degradation.

As demonstrated throughout Part One, ancient common law property rights shielded the environmental interests of property owners from those who would attack them. Rights brought with them strict environmental responsibilities: the use of one’s own property could not interfere with another’s use and enjoyment of his property. However, as industry developed, those who feared the costs and constraints of property and property rights tried to redefine them. Property, they contended, was to be used and not merely enjoyed. Property rights should therefore safeguard the right to develop property as well as the right to be protected from others’ uses. They argued, in other words, that a person’s property rights should serve as both a sword to slash others’ rights and a shield to defend his own, with the courts as arbiters.

While courts in the United States often sympathized with such arguments, British and Canadian courts maintained more conservative views.(2) Even they, however, sporadically made concessions to industrialization.

An English court first legalized a previously unacceptable nuisance in 1858. In Hole v. Barlow, a man objected to his neighbour’s brick-making. The baking process, he complained, created noxious vapours that rendered his home “uncomfortable, unhealthy, unwholesome, and unfit for habitation.”(3) The trial judge’s instructions to the jury betrayed his greater concern for polluting industries than for their victims:

[I]t is not every body [sic] whose enjoyment of life and property is rendered uncomfortable by the carrying on of an offensive or noxious trade in the neighbourhood, that can bring an action. If that were so . . . the neighbourhood of Birmingham and Wolverhampton and the other great manufacturing towns of England would be full of persons bringing actions for nuisances arising from the carrying on of noxious or offensive trades in their vicinity, to the great injury of the manufacturing and social interests of the community. I apprehend the law to be this, that no action lies for the use, the reasonable use, of a lawful trade in a convenient and proper place, even though some one may suffer annoyance from its being so carried on.(4)

When the jury determined that the brick burning was indeed “reasonable,” Mr. Hole appealed on the grounds that the judge had misdirected the jury. But the Court of the Common Pleas found no fault in the judge’s instructions. One judge defended them as follows: “The common-law right which every proprietor of a dwelling-house has to have the air uncontaminated and unpolluted, is subject to this qualification, that necessities may arise for an interference with that right pro bono publico [for the public good], to this extent, that such interference be in respect of a matter essential to the business of life, and be conducted in a reasonable and proper manner, and in a reasonable and proper place.” “[P]rivate convenience,” he concluded, “must yield to public necessity.”(5)

This radical departure from precedent delighted polluters, who frequently cited it in trying to defend their nuisances. The character of a neighbourhood, they argued, should determine whether an activity was permissible; manufacturing districts were convenient, reasonable, and proper places in which to create noise or emit fumes.

Such reasoning did not sit well with a higher British court, however: the Exchequer Chamber overruled it four years later. In that case, which similarly involved the “noxious and unwholesome vapours, fumes, stinks and stenches” resulting from brick-making, the court found that Hole v. Barlow had not been well decided.(6) What would constitute a “reasonable” use or a “convenient” place, the majority of the judges wondered? As far as they were concerned, a place where an activity would incommode someone else would be inconvenient. Changing the law to allow one to cause nuisance to another, they warned, would “lead to great inconvenience and hardship.”(7)

Regardless of the court’s rejection of Hole v. Barlow, polluters continued to cite it in defence of their nuisances. In 1865, a copper smelter tried to use it as a defence against the claims of a local manor owner, saying that the industrial character of the neighbourhood made it a reasonable and proper place to carry on its business. The House of Lords rejected the company’s argument but did concede that courts should consider the character of the neighbourhood in some cases. In a decision that courts would refer to frequently in future years, one law lord distinguished between nuisances resulting in personal discomfort and those resulting in material injury or financial harm. Courts, he said, should consider the character of the neighbourhood only in the former cases:

If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. . . . [T]he submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.(8)

The compromise as laid down in that case was accepted in both England and Canada; it still applies today. Courts continue to distinguish between nuisances resulting in “mere” personal inconvenience, discomfort or annoyance and those causing actual damage to health or property. The former, unless substantial, may be justified by the character of the neighbourhood in which they occur. The latter, in contrast, readily entitle a complainant to his remedy.(9) In 1989, two Canadian Supreme Court judges summarized the law as follows:

The courts attempt to circumscribe the ambit of nuisance by looking to the nature of the locality in question and asking whether the ordinary and reasonable resident of that locality would view the disturbance as a substantial interference with the enjoyment of land. . . . [T]hese criteria find their greatest application in cases where the interference complained of does not consist of material damage to property but rather interference with tranquility and amenity. . . . In the presence of actual physical damage to property, the courts have been quick to conclude that the interference does indeed constitute a substantial and unreasonable interference with the enjoyment of property.(10)

This approach shows common sense. One living in the country expects purer air than one living in a city. Likewise, one living in a residential neighbourhood expects greater quiet than one living in a manufacturing district.

Canadian courts have also accommodated industrialization by robbing victims of their most powerful remedies. At one time, those whose property rights had been violated could count on obtaining injunctions against those responsible. In fact, at one time certain courts had no choice but to issue injunctions. Not until 1858 did the British Parliament empower Chancery courts to award damages in lieu of injunctions. Ontario’s 1877 Judicature Act gave Ontario courts the same authority.

Courts have often cited the public interest when exercising their new power. Early this century, one Ontario judge – Mr. Justice Middleton – became notorious for placing his concern for the public good before the rights of individuals.(11) He did so in 1914, when Vaux and Jessie Chadwick went to court to stop Toronto from using its new electric pumps at a nearby water pumping station. While he acknowledged that the pumps’ vibration, humming, and buzzing constituted a nuisance, he refused to issue an injunction. The pumping of water, he explained, “is necessary for municipal purposes.”(12) And so he would choose the option, granted by the Judicature Act, of substituting damages for an injunction.

Mr. Justice Middleton did not limit this special treatment to municipalities; private polluters soon discovered that they, too, could benefit from his concerns for the general welfare. Between 1916 and 1920, a number of farmers sued copper and nickel smelters near Sudbury, Ontario, complaining that sulphur dioxide in the smelters’ smoke damaged their crops and soil, contaminated their water, and injured their animals. Mr. Justice Middleton tried six of the cases together. In a decision that broke new ground in Canadian law, he allowed the pollution to continue in the name of the common good. Since mines inevitably produced smoke, he reasoned, forbidding smoke could ruin the industry. That must not happen: “The Court ought not to destroy the mining industry – nickel is of great value to the world – even if a few farms are damaged or destroyed.” The judge even suggested that the farmers benefited from the mines: closing the mines would destroy the community, and thus the market for the farmers’ goods, forcing the farmers to move. Such remarks must have sounded offensively patronizing to the farmers, who would not have sought injunctions had they determined the mines to be in their best interest. Nor, likely, would the farmers have taken much comfort from the judge’s conclusion, which sounded more like that of a government than a court of law: “There are circumstances in which it is impossible for the individual so to assert his individual rights as to inflict a substantial injury upon the whole community.”(13)

Concern for the public good similarly influenced the court in a mid-1930s case in which a man from Kingsville, Ontario, sued a tobacco processing plant whose fumes sickened his family. Although the Court of Appeal found that the tobacco company had indeed created a nuisance, it refused to grant an injunction against it. The court worried that an injunction would disadvantage the defendant and the community far more than it would benefit the plaintiff: the factory employed 200 people, who would lose their jobs as a result. “[T]his,” said one judge, “is to be avoided if at all possible. The public good can never be absent from the mind of the Court when dealing with a matter of discretion.”(14)

Fortunately, the above decisions are exceptions to the rule. Textbooks continue to hold that “It is no defence that the nuisance, although injurious to the individual plaintiff, is beneficial to the public at large.”(15) Injunctions remain the favoured remedy in both English and Canadian property rights cases, especially where trespass or a violation of riparian rights has occurred, and generally, but somewhat less categorically, in nuisance cases.(16) The Ontario High Court noted in 1984 that “the defence of ‘general benefit of the community’ . . . is not available in answer to a claim for nuisance. There has been consistent rejection of that notion by the highest Canadian courts.”(17) Five years later a Canadian Supreme Court judge confirmed the courts’ reluctance to override common law property rights. “The courts,” he said, “strain against a conclusion that private rights are intended to be sacrificed for the common good.”(18)

A number of factors have contributed to the courts’ reluctance to substitute damages for injunctions. Judges have long understood that many injuries cannot be monetized. How, one law lord wondered as early as 1859, can someone prove the exact quantity of pecuniary loss he has sustained? What, for example, is the value of a business’s lost customers?(19)

Only victims themselves can know what value they place on a good night’s sleep, or how much money they would be willing to accept for breathing foul air. When a judge or jury awards damages, however, the victims do not determine the amount. Substituting damages for an injunction therefore amounts to forcing the victim to sell his property rights at a price set by the court. It amounts, in short, to giving a defendant the power of expropriation.

In contrast, injunctions allow the victim to negotiate his own price. If his environment is priceless, he may simply tell the polluter to go away. Alternatively, he may bargain away his rights or reach a compromise that benefits both him and the polluter.(20)

Furthermore, only injunctions can prevent the recurrence of property rights violations. In allowing damages to replace injunc-tions, courts in effect license continuing wrongs – a role which they generally reject. A British judge warned in 1894 that the court must not become “a tribunal for legalizing wrongful acts. . . . [T]he Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict.”(21) With some important exceptions, his successors have paid him heed.

Notes

1. Toronto Star, “Court derails man’s bid to stop subway noise.”

2. For information on the American experience of courts transforming the common law to benefit industry, see Horwitz, The Transformation of American Law 1780-1860, especially 2, 3, 17, 19, 31, 37, 40, 70, 99. Epstein challenges Horwitz’s view in “The Social Consequences of Common Law Rules,” 1729.

For information on the Canadian experience, see Risk, “The Law and the Economy in Mid-Nineteenth-Century Ontario,” 122; and Nedelsky, “Judicial Conservatism in an Age of Innovation,” 281-310.

3. Hole v. Barlow (1858), 4 C.B. (N.S.) 334, 140 E.R. 1113 at 1114 (C.P.).

For a discussion of this case in the context of the weakening of nuisance law in the nineteenth century, see Brenner, “Nuisance Law and the Industrial Revolution,” 408-32.

4. Hole v. Barlow, ibid. at 1114.

5. Ibid. at 1118.

6. Bamford v. Turnley (1860), 3 B. & S. 62, 122 E.R. 25, aff’d (1862), 3 B. & S. 66, 122 E.R. 27 (Ex.).

7. Ibid. at 30.

8. The Directors, etc. of the St. Helen’s Smelting Co. v. William Tipping (1865), 11 H.L.C. 642, 11 E.R. 1483 at 1486.

According to both Brenner and Nedelsky, St. Helen’s Smelting Co. v. Tipping was “arguably the most important nuisance case of the era” (op. cit., 413 and 316 respectively).

9. For further information, see Estrin and Swaigen, Environment on Trial, 110; Canadian Environmental Law Research Foundation, “An Overview of Canadian Law and Policy Governing Great Lakes Water Quantity Management,” 115; Campbell et al., “Water Management in Ontario,” 503-4; and Nedelsky, op. cit., 287-8, 317.

10. Tock et al. v. St. John’s Metropolitan Area Board (1989), 64 D.L.R. (4th) 620 at 639-40.

11. McLaren calls the notion that a judge may consider the social utility of a nuisance before issuing an injunction against it “the brain child” of Mr. Justice Middleton; he later refers to the notion as “the Middleton thesis” (“The Common Law Nuisance Actions and the Environmental Battle,” 554-5).

12. Chadwick v. City of Toronto (1914), 32 O.L.R. 111 at 113.

13. Black v. Canadian Copper Co., etc. (1917), 12 O.W.N. 243 at 244, aff’d (1920), 17 O.W.N. 399 (C.A.).

Dewees and Halewood point out that a court injunction would not have shut down the nickel industry. Seasonal, locational and techno-logical alternatives in use elsewhere would have enabled Canadian Copper (INCO’s predecessor) to reduce not only local agricultural damage but also the acid damage wreaked on Canadian lakes and forests (“The Efficiency of the Common Law,” 3, 14, 16-9).

No one today accepts acid damage as necessary. The great eco-nomic and environmental costs of acid rain – not generally recognized until the 1970s and 1980s – might have been avoided had property rights been enforced early this century.

14. Bottom v. Ontario Leaf Tobacco Co. Ltd., [1935] O.R. 205 at 206 (C.A.).

15. Heuston and Buckley, Salmond & Heuston on the Law of Torts, 79.

16. In Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287 at 322-3, one justice explained that a court should substitute damages for an injunction only if the injunction would be oppressive and the injury was small and could be easily estimated and compensated by money. That 1894 decision has since been frequently followed.

For more information on when courts grant injunctions, see Sharpe, Injunctions and Specific Performance, 6, 180-201; Nedelsky, op. cit., 301-3; and Estrin and Swaigen, op. cit., 108-10. For information on the extent to which British courts favoured early industrial development see McLaren, “Nuisance Law and the Industrial Revolution,” 341-65.

17. Buysse et al. v. Town of Shelburne (1984), 6 D.L.R. (4th) 734 at 740.

18. Tock v. St. John’s Metropolitan Area Board, op. cit. at 651.

19. The Directors, &c., of the Imperial Gas Light and Coke Company v. Samuel Broadbent (1859), 7 H.L.C. 600, 11 E.R. 239 at 243.

20. Property rights case law illustrates both that people with clearly defined rights have long negotiated with would-be polluters and that they frequently place limits on how much they are willing to bargain away.

Wood v. Sutcliffe tells of a dispute between the users of a Yorkshire stream. In the first decades of the nineteenth century, worsted wool spinners had used the pure stream to wash wool and generate and condense steam. When an upstream factory began to pollute the stream, the spinners threatened to sue. To avoid litigation, the factory owners offered to annually pay the spinners £2 per horse-power for the right to pollute the water. The spinners agreed, and sunk a well from which they could draw the pure water they needed. But the spinners were not content to let the stream deteriorate further, and launched lawsuits against other polluters in both 1849 and 1851. (1851), 2 Sim. (N.S.) 163, 61 E.R. 303. Also see Wood and Another v. Waud and Others (1849), 3 Ex. 748, 154 E.R. 1047.

Walker v. McKinnon Industries Ltd. chronicles the dispute in St. Catharines, Ontario, between a florist and a neighbouring foundry. Although fumes and soot from the foundry blocked the sunlight from the florist’s greenhouses and injured his plants, the florist at first chose to negotiate rather than sue. World War II raged, and the courts seemed unlikely to restrain a company that manufactured urgently needed munitions. The florist and the foundry owners reached agreements regarding damages and temporary easements for the pollution. When the pollution continued after the war ended, however, the florist launched a court action for both damages and an injunction. [1949] 4 D.L.R. 739 (Ont. H.C.), aff’d [1950] 3 D.L.R. 159 (Ont. C.A.), aff’d [1951] 3 D.L.R. 577 (P.C.).

The possibility of a polluter obtaining the consent of his victims has been raised in other cases, including Embrey v. Owen (1851), 6 Exch. 353 at 370 and Roberts v. Gwyrfai District Council, [1899] 2 Ch. D. 608 at 608, 610. Also see Campbell et al., “Water Management in Ontario,” 504.

21. Shelfer v. City of London Electric Lighting Company, op. cit. at 311, 315-6.

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