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NUISANCE - Practice and procedure

Monday, October 15, 2018 @ 11:28 AM  

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Appeal by the plaintiffs from summary judgment dismissing their claim against Manitoba. The underlying claim related to the operation of certain concession services and facilities within a provincial park. Between 1991 and 2003, Manitoba reduced the hours during which the plaintiffs' business could operate and sell alcohol within the park. The reduction decision followed complaints by nearby residents regarding late night noise, vandalism and violence. In 2006, the plaintiffs commenced litigation, seeking damages based on the tort of nuisance. In 2016, Manitoba obtained summary judgment dismissing the action. The motion judge found that the nuisance claim had no prospect of success, as Manitoba had acted reasonably, and in accordance with its authority under the parties' lease. The plaintiffs appealed.

HELD: Appeal allowed. The case law relied upon by the motion judge did not support the finding that the claim in nuisance was bound to fail. Additionally, the motion judge erred in his application of the legal test for nuisance by focusing on the reasonableness of Manitoba’s actions to the exclusion of whether the interference with the plaintiffs' use and enjoyment of the property was unreasonable. The error in principle caused further errors in rejecting the plaintiffs' submissions regarding alternative solutions to address the complaints targeting their business. With respect to Manitoba's limitation defence, if the reduction constituted a nuisance, then such tort, if proven, was one of continuing injury precluding a finding that the limitation period had expired.

Grand Beach Management Services Inc. v. Manitoba, [2018] M.J. No. 209, Manitoba Court of Appeal, H.C. Beard, C.J. Mainella and J. leMaistre JJ.A., August 27, 2018. Digest No. TLD-October152018001