What Can Be Legally Done About a Harassing Neighbour?
The Tort of Nuisance Is a Very Flexible Legal Principle Involving Substantial and Unreasonable Interference In the Use and Enjoyment of Property and May Be Applicable to Harassing Neighbour Cases.
Understanding When Harassment By Neighbours Becomes Tortious Nuisance
When people are living within close proximity with one another, such as is common within our cities and towns, there can arise various struggles in the effort to get along. Sadly, some may prefer to cause strife and conflict through the use of harassing conduct with an intent to inflict annoyance and disturbance within a desire to cause disruption to the peace and enjoyment of others.
In the civil law of Ontario, meaning the type of law that involves lawsuits, the right to sue a person for harassment is absent whereas the Court of Appeal, in the case of Merrifield v. Canada (Attorney General), 2019 ONCA 205, deemed that a civil law tort of harassment fails to exist. Specifically, the Court of Appeal said:
 The decision under appeal is the first case in which a Canadian appellate court has been required to determine whether a common law tort of harassment exists. What is required in order for a new tort to be recognized or established? Neither party canvassed this issue, yet it is key to the resolution of this appeal. Accordingly, it is helpful to begin with a brief consideration of the nature of common law change, before considering whether a tort of harassment should be recognized at this time.
The nature of common law change
 Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically, as McLachlin J. explained in Watkins v. Olafson, 1989 CanLII 36 (SCC),  2 S.C.R. 750, at p. 760:
Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents. Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances. While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far-reaching changes in the rules hitherto accepted as governing the situation before them.
There are sound reasons supporting this judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.
 These wise words of caution have been reiterated by the Supreme Court in a variety of contexts including R. v. Salituro, 1991 CanLII 17 (SCC),  3 S.C.R. 654, and R. v. Mann, 2004 SCC 52,  3 S.C.R. 59. The same idea is seen in English law: see e.g. Launchbury v. Morgans,  UKHL 5,  A.C. 127.
 Thus, when the Supreme Court created a duty of honest contractual performance in Bhasin v. Hrynew, 2014 SCC 71,  3 S.C.R. 494, it did so on the basis that good faith contractual performance already existed in Canadian common law as a general organizing principle that underpins and informs existing common law rules. Creation of the new common law duty was justified on the basis that it was an incremental step that followed from the implications of the general organizing principle, a step that responded to societal needs and vindicated the reasonable expectations of commercial parties without precipitating unintended effects.
Common law change in Ontario
 The importance of incremental development of the common law was discussed in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, in which this court recognized the existence of a tort of intrusion upon seclusion.
 Far from being created from whole cloth, the intrusion upon seclusion tort was grounded in what Sharpe J.A. identified as an emerging acceptance of claims for breach of privacy. He carefully reviewed Ontario and Canadian case law, in which he discerned both supportive dicta and a refusal to reject the existence of the tort, and provincial legislation that established a right to privacy while not foreclosing common law development. He also considered academic scholarship, much of which supported the existence of a right to privacy. He drew upon American tort law, which recognizes a right to privacy, as well as the law of the United Kingdom, Australia, and New Zealand. He also noted societal change – in particular, technological developments that pose a threat to personal privacy – and the impetus for reform that it created. “[M]ost importantly,” he said, “we are presented in this case with facts that cry out for a remedy”: at para. 69.
In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.
Authority does not support the recognition of a tort of harassment
 The trial judge in this case relied on four trial-level decisions proffered by Merrifield as supporting the existence of the tort and establishing its elements: Mainland Sawmills Ltd. et al v. IWA-Canada et al, 2006 BCSC 1195, 41 C.C.L.T. (3d) 52; Savino v. Shelestowsky, 2013 ONSC 4394, 4 C.C.L.T. (4th) 94; McHale v. Ontario, 2014 ONSC 5179; and P.M. v. Evangelista, 2015 ONSC 1419.
 She erred in doing so. Taken as a whole, these cases confirm neither the existence of the tort nor its elements.
 Mainland Sawmills is the key case in the analysis. It underlies all of the subsequent Ontario trial decisions – this, despite the fact that it is a British Columbia trial level authority in which the court did no more than assume, for purposes of dealing with an application seeking to have particular claims dismissed, that the tort exists. Far from confirming the existence of the tort, the application judge in Mainland Sawmills specifically concluded that the law is unclear.
 As for the elements of the tort, these too were assumed by the application judge in Mainland Sawmills based on the plaintiffs’ submission – a submission that was based on American caselaw arising out of the tort of intentional infliction of emotional distress. In short, Mainland Sawmills is not authority for either the existence of the tort of harassment or the elements of such a tort.
 Nevertheless, Mainland Sawmills has been cited and relied on in several subsequent cases in Ontario in which the tort of harassment has been asserted.
 In Savino, the motion judge does no more than find that although a tort of harassment is “not largely accepted, the door does not appear to be entirely closed on the possibility of this tort’s existence”: at para. 15. The court cites Mainland Sawmills as one of the few cases in which the elements of the tort are set out.
 McHale appears to assume the existence of the tort and cites two cases, Lynch v. Westario Power Inc.,  O.J. No. 2927 (S.C.), and Mainland Sawmills, for the elements of the tort, only to conclude that the tort was not pleaded with sufficient particularity. Lynch specifically states that the existence of the tort of harassment is unclear and, like McHale, finds that the tort was not pleaded with sufficient particularity in accordance with Mainland Sawmills in any event.
 P.M. describes harassment as a “still-developing tort” and cites Savino and Lynch for the elements of the tort. P.M. is the only case cited by the respondent in which damages were awarded for harassment ($5,000), but the defendant in that case was the administrator of the estate of the tortfeasor and did not lead evidence.
 The trial judge concluded that the law of harassment has evolved since 2011, citing McHale, P.M., and John v. Cusack, 2015 ONSC 5004, in support. The motion judge in John acknowledges that the existence of the tort is a “live legal issue”, but assumes its existence for purposes of a summary judgment motion, ultimately dismissing the claim as frivolous and vexatious.
 This is the extent of the authority cited in support of the existence of the tort. In sum, these cases assume rather than establish the existence of the tort. They are not authority for recognizing the existence of a tort of harassment in Ontario, still less for establishing either a new tort or its requisite elements.
There is no other basis to recognize a new tort
 Given that authority does not support the existence of a tort of harassment, should this court nevertheless recognize such a new tort?
 To pose the question in this way is to suggest that the recognition of new torts is, in essence, a matter of judicial discretion – that the court can create a new tort anytime it considers it appropriate to do so. But that is not how the common law works, nor is it the way the common law should work.
 At the outset, it is important to recognize that this is not a case like Tsige, which, as we have said, is best understood as a culmination of a number of related legal developments. As we have explained, current Canadian legal authority does not support the recognition of a tort of harassment.
 We were not provided with any foreign judicial authority that would support the recognition of a new tort. Nor were we provided with any academic authority or compelling policy rationale for recognizing a new tort and its requisite elements.
 This is not a case whose facts cry out for the creation of a novel legal remedy, as in Tsige. That case concerned a highly significant intrusion into the plaintiff’s personal information. The defendant, who was in a relationship with the plaintiff’s former husband, used her workplace computer to gain access to the plaintiff’s banking records and personal information over a period of several years – actions the court found to be deliberate, prolonged, and shocking. Discipline imposed on the defendant by her employer did not redress the wrong done to the plaintiff. In these circumstances, as Sharpe J.A. put it, “[T]he law of this province would be sadly deficient if we were required to send [the plaintiff] away without a legal remedy.”
 That is not this case. In this case, there are legal remedies available to redress conduct that is alleged to constitute harassment. The tort of IIMS is one of these remedies, and it is discussed below.
 In summary, the case for recognizing the proposed tort of harassment has not been made. On the contrary, as we will explain, there are good reasons opposing the recognition of the proposed tort at this time.
As per Merrifield above, a tort law right of action for harassment is lacking in Ontario law; and accordingly, when a person is harassed by a neighbour, a lawsuit must claim the tort of nuisance as the cause of action, meaning reason for suing, rather than alleging harassment as is legally unrecognized.
The tort of nuisance is a very flexible tort capable of addressing a variety of circumstances, including harassment by neighbour cases. As for acceptance of nuisance law for matters involving harassment by neighbours there is an extensive body of cases covering the issue. Appearing strongly supportive is the case of Rathmann v. Rudka, 2001 CarswellOnt 1206 where it was said:
20 Before embarking on a review of the case law, I should like to add a few remarks. At the outset of the trial, I wondered whether a cause of action even existed on the facts. There seemed to be no substantial damage caused to the person or to property (except for the damage to the vehicles and minor damage to the fence), which are requisites at common law. However, the case authorities cited by counsel for the plaintiffs show that the courts are giving monetary damage awards to persons subjected to neighbourly misconduct and who are affected by it. Much depends on the facts, but it does appear that if the court finds misconduct which causes even mild distress, then the court is prepared to grant an award of damages to compensate the aggrieved party. And perhaps this is the way it should be. It would be an understatement to say that our daily discourse no longer reflects the manners of even our parents' generation. The same applies to our conduct. We cannot and should not expect our police forces to become engaged in situations of neighbourly misconduct. The police were called numerous times to come to the parties' premises in this case. The police have much more important work to do. Nor should we expect neighbourly misconduct to be regulated and dealt with by anti-noise by-laws and by-law enforcement officers. That just doesn't seem to work. Then what can a person do when subjected to neighbourly misconduct be it, for example, regular loud playing of music, regular loud late-night pool parties or even incessantly barking dogs, conduct which interferes with other persons right to privacy and their quiet use and enjoyment of their property. There is no recourse unless the courts are prepared to receive these complaints, and if necessary, extend the law of private nuisance to cover the realities of the present age, and attempt to assess damages as a deterrent. Should misconduct and the damaging effect thereof be proven, then a further deterrent might well be an award of costs on a solicitor and client basis. Such an award would act as both an encouragement and a deterrent to bringing frivolous actions.
Similarly, per Saelman v. Hill, 2004 CanLII 9176, offensive conduct which may consist of separately recognized or otherwise labelled wrongdoings manifest as nuisance whereas it was stated:
 I am satisfied that the defendants’ behaviour, at least in 1999 and 2000, was calculated to intimidate and upset the plaintiffs and to diminish their enjoyment of their property. The question is whether this is actionable conduct.
 I am of the view that the tort of nuisance is made out in circumstances where a neighbour deliberately, significantly and unjustifiably interferes with another neighbour’s enjoyment of his or her property. This type of conduct may be labelled as harassment, intimidation or invasion of privacy and in my view, are in essence manifestations of the well-established tort of nuisance.
 In Roth v. Roth (1991), 1991 CanLII 7220 (ON SC), 4 O.R. (3d) 740 Mandel J. dealt with a dispute between neighbours of a cottage property in which the defendants repeatedly blocked an access road, removed a dock, shed and pump used by the plaintiffs, shut off electricity and verbally harangued the plaintiffs. Justice Mandel was of the view that this conduct, taken as a whole, constituted…
…harassment of the plaintiffs in the enjoyment of their property which is of a kind that a person of normal sensitivity would regard as offensive and intolerable and is an invasion of the plaintiffs’ rights of privacy and I so find.
Even if it could be said that there is no remedy for the invasion of privacy such conduct by the defendants and the totality thereof in my view would give rise to a cause of action in harassment (see Thomas v. National Union of Mineworkers, supra, or to the female plaintiff who is the owner of the lands in nuisance (see Motherwell v. Motherwell, supra,) being the undue interference with the comfort and enjoyment of her home.
 It has been suggested in many of the older cases that for a plaintiff to succeed in nuisance, a proprietary interest in the subject property must be established. This would exclude the plaintiff Mr. Wuerch who resides with Mr. Saelman, as his partner, but without any ownership in the property. With due regard to the historical background to the tort of nuisance, the lawful occupation of a residential property should, as a matter of policy, be protected by the law of nuisance irrespective of whether a claimant can establish a proprietary interest.
 In Garrett v. Mikalachki  O.J. No. 1326, the plaintiff claimed that the defendants’ conduct constituted harassment. The parties were neighbours and engaged in a dispute concerning, among other things, the location of a fence between the properties. This escalated to incidents in which the defendants blocked an access road to the properties, machinery was left unattended outside the plaintiff’s window, incidents of shouting occurred and numerous baseless and defamatory complaints were made about the plaintiff to governmental bodies. Ferguson J. held that the allegations of “harassment” had been established. He stated at page 15:
¶136 I find that the following actions of the defendants are also actionable as harassment: shouting in the driveway, leaving the weedeater operating, blocking access for the delivery vehicles, the complaint that Mr. Garrett was operating a business from his residence, the complaints to Auto Trader, the complaints to the township council and the Ontario Motor Vehicle Industry Council; the complaint to Ms. Meggitt's insurance broker, the complaint to COMSOC.
¶137 There were other harassing incidents which tend to show that there was a joint course of conduct by the defendants to injure Mr. Garrett but not all of the incidents are serious enough or sufficiently wrongful to be actionable in my view.
¶138 I have labelled the above actionable incidents as harassment for convenience. The categorization of wrongs in this area is in flux but I find that the listed conduct is actionable within the common law categories of intentional infliction of emotional distress, nuisance or invasion of privacy, and harassment: Palad v. Pantaleon  O.J. No. 985 (Ont. D. Ct.); Roth v. Roth (1991), 1991 CanLII 7220 (ON SC), 4 O.R. (3d) 740 (Gen. Div.); Lipiec v. Borsa  O.J. No. 3819 (Gen. Div.); Motherwell v. Motherwell (1976), 1976 ALTASCAD 155 (CanLII), 73 D.L.R. (3d) 62 (Alta. C.A.); McKerron v. Marshall  O.J. No. 4048 (Ont. Sup. Ct.).
¶139 The defendants pursued a prolonged, planned, course of conduct involving harassment and meritless complaints intended to interfere with Mr. Garrett's lawful enjoyment of his residence and his employment. The defendants were motivated by malice. Their conduct was outrageous. Mr. Garrett suffered actual psychological harm which was foreseeable and intended.
 In Foster v. McCoy  N.B.J. No. 281, Garnett J. allowed a counterclaim based on nuisance for conduct in which a neighbour engaged in name calling, standing in front of the claimants’ home and staring at their door, digging holes in the lawn located on a shared right-of- way, cutting down trees and various incidents of minor trespass. He found as a fact that the acts were done with the intention of causing distress to his neighbours. I respectfully adopt Garnett J.’s analysis, following the decision of the Alberta Court of Appeal in Motherwell v. Motherwell (1976), 1976 ALTASCAD 155 (CanLII), 73 D.L.R. (3d) 62, to the effect that the principles governing the tort of nuisance are sufficiently flexible to cover harassing behaviour notwithstanding that all aspects of the recognized torts of intentional infliction of mental suffering, the right to privacy and the tort of private nuisance, may not be fully established. Justice Garnett stated:
¶44 They allege that William Foster's conduct amounts to nuisance and I agree.
¶45 In reaching this conclusion, I have canvassed the law relating to the right to privacy, the intentional infliction of mental suffering and the law of private nuisance. Each presented difficulties, however, I have concluded on the basis of Motherwell v. Motherwell (1976) 1976 ALTASCAD 155 (CanLII), 73 D.L.R. (3d) 62 that the principles governing the law of nuisance are sufficiently elastic to cover the circumstances of this case.
¶46 In that case, the Court of Appeal of Alberta considered whether harassment of the plaintiffs by frequent telephone calls from a member of their family amounted to actionable nuisance. The defendant argued, among other things, that the categories of nuisance were established and that the conduct complained of could not fit into any of those categories.
¶47 In rejecting that argument, Justice Clement, reviewed the law as it relates to nuisance and concluded that, like negligence, the categories of nuisance are not closed. He found that repeated telephone calls were as capable of interfering with one's quiet enjoyment of his property as were some of the earlier activities which the law had historically sanctioned as nuisance.
¶48 I find that the conduct of William Foster was intended to interfere with his neighbour's enjoyment of their property and it did. I find also that it amounted to actionable nuisance.
 In summary, I find that the actions of the defendants, particularly Mrs. Hill, in the summer of 1999 through to the time when an injunction was granted by Belch J. on January 25, 2001 on agreed upon terms, constituted a campaign of harassment amounting to an actionable nuisance. Most of the incidents were minor and not individually actionable. However, taken collectively, the defendants’ continued digging along the fence line, their channeling of water in order to destabilize the fence and distress the plaintiffs, the surveillance camera, floodlight, and no trespassing signs, the eavestroughing downspout directed onto the plaintiffs’ driveway, the personal confrontations and threatening behavior initiated by Mrs. Hill, all contributed to a loss of enjoyment of plaintiffs’ property. I find that an actionable nuisance has been established based on this unjustified harassment which the plaintiffs have been forced to endure.
Also of interest as per the Saelman case is that in addition to the owners of lands, for policy reasons, occupiers without a proprietary interest in the land but who are rightfully in possession of lands should be able to bring legal action in the tort of nuisance. Such was stated in paragraph 38 as above. Furthermore, also per Saelman as above at paragraph 41, a series of trivial or minor incidents as part of a campaign of harassment may become legally actionable despite that each individual incident would be insufficient.
Significantly of importance with harassing neighbours cases is that, differing from other nuisance cases, the conduct is usually fully intentional rather than accidental. While a valid nuisance case may arise through unintentional conduct where it is shown that, among other things, the unintended conduct is an unreasonable interference in the enjoyment of property of others, this being referred to in law as the social utility element, meaning reasonableness and usefulness of the disturbing conduct, with intentional harassing neighbour cases the need to review whether the disturbing conduct is reasonable and serving some form of social utility becomes moot. Such was well stated in the cases of Suzuki v. Munroe, 2009 BCSC 1403 was well as Boggs v. Harrison, 2009 BCSC 789 wherein each it was respectively said:
 Acts done with the intention of annoying a neighbour and actually causing annoyance will be a nuisance, although the same amount of annoyance would not be a nuisance if done in the ordinary and reasonable use of the property: A.M. Dugdale & M.A. Jones eds., Clerk & Lindsell on Torts, 19th ed. (London: Sweet & Maxwell, 2006) at 11782. In my view this is the natural corollary of the principle that the social utility of the activity complained of may be considered in deciding whether the activity is unreasonable. Activities designed to annoy one’s neighbours and having little or no redeeming social utility are unreasonable and should be discouraged by the law.
 The authorities make it clear that the interference complained of must be substantial, and far beyond mere inconvenience or minor discomfort. The test for determining whether the interference is unreasonable is an objective one, and requires proof that the interference is of a kind and extent that would not be tolerated by the ordinary occupier. The relevant factors to be considered include the kind and severity of the interference, the frequency and duration of the acts complained of, whether there was any legitimate objective for the defendants’ conduct and whether the defendants’ actions were intended to interfere with the plaintiffs.
 To establish a cause of action in nuisance, the plaintiff does not have to prove that the defendant committed acts of interference with the intent to interfere with the plaintiff’s use and enjoyment of his or her property. However, if such wrongful intent can be proved, that fact would strengthen the inference that the interference was unreasonable. The effect that wrongful intent can have in proof of nuisance is stated in this way in Clerk & Lindsell on Torts (2006) at 20-17:
Acts done with the intention of annoying a neighbour and actually causing annoyance will be a nuisance, although the same amount of annoyance would not be a nuisance if done in the ordinary and reasonable use of the property. . . .
Similar comments are made in Linden & Feldthusen, Canadian Tort Law (2006) at pages 579-580.
Additional Cause of Action Applicable
As explained above, in Ontario, the tort of harassment fails to exist; and accordingly, harassment by neighbour may be addressed using the tort of nuisance as a valid and recognized civil law cause of action. With this said, it is common that nuisance will overlap with one or more other causes of action. Such overlap occurred in the case of Cecchin v. Lander, 2019 CanLII 131883 where intrusive cameras and spotlights were deemed a tortious nuisance as well as a form of breach of privacy known specifically in law as an intrusion upon seclusion. In the Cecchin case, it was said:
86. As noted above, harassment is not a civil cause of action. The plaintiffs rely on the torts of nuisance and/or invasion of privacy. The latter cause of action was recognized in Jones v. Tsige (2012), 2012 ONCA 32 (CanLII), 108 O.R. (3d) 241 (C.A.). There is some overlap between the two causes in this case and hence they are addressed together in these reasons. The plaintiffs rely on three matters:
(i) Surveillance cameras pointed at their property;
(ii) Floodlights shining on their property;
(iii) Obstructive parking.
87. There was also an incident involving dog excrement appearing on their property in July 2018 (Exhibit 2, Tab 14-A & 14-B). The plaintiffs believe it to have been flung there by the defendants and there is some circumstantial evidence in that regard. However that incident in my view is insufficiently serious to constitute the tort of nuisance.
88. Private or common law nuisance consists of substantial and unreasonable interference with the claimant’s use or enjoyment of land: Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), 2013 SCC 13 (CanLII),  1 S.C.R. 594 (“Antrim”), at para. 18. A substantial interference is one that is not trivial: Antrim, at para. 19. Whether the interference is unreasonable may depend on a variety of case-specific factors but there is no checklist. Rather the overarching question is whether the interference is unreasonable taking the gravity of the harm balanced against the utility of the defendant’s conduct in all the circumstances: Antrim, at para. 26. In other words, the law asks whether it would be unreasonable to require the claimant to suffer the particular interference without compensation: Antrim, at para. 25.
89. Surveillance cameras and floodlights pointed onto residential neighbouring property can constitute the tort of nuisance: Lipiec v. Borsa,  O.J. No. 3819 (Gen. Div.); Saelman v. Hill (2004), 20 R.P.R. (4th) 118 (Ont. S.C.J.); Suzuki v. Munroe (2009), 2009 BCSC 1403 (CanLII), 87 R.P.R. (4th) 68 (B.C.S.C.); Cline v. Drummond,  O.J. No. 3342 (S.C.J.), affirmed  O.J. No. 1639 (C.A.), leave to appeal denied  S.C.C.A. No. 131.
90. Invasion of privacy and more particularly the tort of intrusion upon seclusion was recognized in Jones v. Tsige, supra. At para. 70 of the reasons of Sharpe J.A. the elements of the tort were formulated as follows:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
91. A person’s residence represents a fundamentally important private and personal space. It is a home and a place of seclusion from the world at large. Having surveillance cameras and floodlights aimed at one’s residence is a clear and material intrusion into that space, particularly where, as I find in this case, this was done as part of a deliberate campaign of harassment. I conclude that the torts of invasion of privacy and nuisance are made out. The particular invasion would be highly offensive to a reasonable person; in the language of nuisance it would be unreasonable to require the plaintiffs to suffer the interference without compensation.
As shown within the Cecchin case, the tort of nuisance exists with, and overlaps with, the tort of intrusion upon seclusion. In some circumstances, other torts may also apply and be deserving of careful review.
The topic of tortious nuisance is a very deep legal subject with many subtopics that can only be lightly touched upon within a webpage article. Legal practitioners and scholars could spend hours discussing the various twists and turns that apply to the principles and concepts mentioned here.