Public Nuisance Claims: An Increasing Risk To Canadian Businesses

• Published date: 04 February 2025
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Class Actions
• Law Firm: McCarthy Tétrault LLP
• Author: Mr Patrick Williams and Isabelle Vendette

In the last several years, plaintiffs have pursued an increasing number of public nuisance claims against Canadian businesses'particularly in product liability class actions. Relative to more conventional negligence-based claims, public nuisance claims are attractive to plaintiffs'and perilous for defendants.

Public nuisance is a tort in Canadian common law jurisdictions. But, unlike negligence, public nuisance does not require a plaintiff to prove that a defendant (1) owed the plaintiff a duty of care or (2) breached a standard of care. Thus, when public nuisance applies, it is often easier for a plaintiff to establish liability in public nuisance than negligence'and sometimes to a larger class of affected persons.

Under Québec's civil law, public nuisance does not exist as a distinct cause of action. However, it can be effectively invoked by plaintiffs who bring cases under the Civil Code of Québec's no-fault liability regime of neighbourhood annoyances, under the general rules of civil liability, or under Québec's Charter of Human Rights and Freedoms.

Across Canada, plaintiffs are now trying to expand the scope of public nuisance, which typically concerns public property and resources but has an ambiguous scope. So far, courts have resisted attempts to expand the scope of public nuisance'highlighting the value of early applications to strike the claim. But plaintiffs continue to push the boundaries of public nuisance in new cases.

Public nuisance traditionally requires interference with property or resources

Attempts to expand the scope of public nuisance are facilitated by its ambiguous scope'public nuisance "lacks a central organizing principle that defines the metes and bounds of the cause of action".¹

To establish a public nuisance, a plaintiff must identify (1) a public right and (2) an unreasonable interference with that right by the...