03/02/2020 2016 BCSC 686 Pritchard v. Van Nes accept them as true. [43] Mr. Pritchard seeks aggravated general damages and punitive damages in respect of the defamatory Facebook posts. Discussion Nuisance Claim Liability for Nuisance [44] I will note at the outset that in closing submissions counsel for the plaintiff acknowledged that the nuisance allegations are not intended as the real focus of this action. [45] The principles that underlie claims in nuisance were reviewed by the Supreme Court of Canada in St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, at para. 77: At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct. Nuisance is defined as unreasonable interference with the use of land. Whether the interference results from intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as a nuisance. The interference must be intolerable to an ordinary person. This is assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff's use and the utility of the activity. The interference must be substantial, which means that compensation will not be awarded for trivial annoyances. [References omitted.] [46] The tests, then, are whether Ms. Van Nes’ actions interfered with the use and enjoyment of Mr. Pritchard’s land, and if so whether such interference was unreasonable. [47] I find the waterfall structure meets those tests. I do not have the benefit of any objective evidence such as noise level measurements. Nor do I have any evidence from any persons other than the plaintiff and his wife as to the noise level. However, I do not have any reason to conclude that the plaintiff was overly sensitive. On the whole, I accept Mr. Pritchard’s evidence that the noise was a substantial interference causing him some distress, discomfort, and annoyance over the past four years. I find that the noise level caused by the waterfalls during the night was unreasonable, by objective standards. The severity of the nuisance, however, falls towards the lower end of the range giving rise to damages. [48] I also find that, over the period of roughly two years, as alleged, the numerous times that Ms. Van Nes’ dog trespassed onto and defecated on the plaintiff’s property, constituted a nuisance. [49] I characterize the misbehaviour of the defendant’s sons, the late night noise from parties, and the issues surrounding parking to constitute unneighbourly acts that fall short of being nuisances. I have no doubt that these incidents aggravated the plaintiff and exacerbated his feelings of frustration over the waterfall and the dog, but alone or taken as a whole these unneighbourly acts do not warrant a finding of tortious liability sounding in damages. Damages for Nuisance https://www.bccourts.ca/jdb-txt/sc/16/06/2016BCSC0686.htm 10/26