Wm. L. Chafe and Son Limited v. Murphy, 2011 NLCA 18

Date: 20110221 Docket: 09/93 Citation: Wm. L. Chafe and Son Limited v. Murphy, 2011 NLCA 18 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : WM. L. CHAFE AND SON LIMITED APPELLANT AND : GEORGE MURPHY AND IRENE MURPHY RESPONDENTS Coram: Welsh, Mercer and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General), 200301T4414 Appeal Heard: November 17, 2010 Judgment Rendered: February 21, 2011 Reasons for Judgment by Mercer, J.A. Concurred in by Welsh and Hoegg, JJ.A. Counsel for the Appellant: John Dawson and John Taylor-Hood Counsel for the Respondents: Stephen May and Mandy Woodland Mercer, J.A.:

[ 1 ] This appeal considers the application of the law of negligence and nuisance to a claim in which losses were suffered when a fire originating in an electrical system spread from one commercial building to adjoining premises. BACKGROUND [ 2 ] The Appellant (Chafe) owned two interconnected buildings, civic numbers 328 and 330 on Water Street, St. John’s from which it operated a clothing store. The Respondents (the Murphys) owned the building at 324 Water Street from which they operated a retail gift store. The Murphys had purchased the property in 1995.

The Murphys did not have an electrical inspection of the property performed at the time of purchase or subsequently. The previous owner had considerable electrical work undertaken in 1982 by a qualified electrician. [ 3 ] At approximately midnight on June 28, 2007 a fire occurred in the cellar or crawlspace area of the Murphys’ property. The fire quickly spread to adjoining properties including the Chafe buildings which sustained extensive damage. [ 4 ] Chafe sued the Murphys for losses and damages to its property, inventory and equipment and further claimed loss of revenue from business interruption.

The Chafe’s claim was stated to be based on negligence, nuisance and the strict liability principle established in Rylands v. Fletcher . In negligence Chafe alleged that the Murphys breached their duty of care to adjoining property owners to maintain the electrical system at their property in a safe and proper condition. Chafe further alleged that the spread of fire from the Murphys’ property constituted a nuisance. TRIAL DECISION [ 5 ] The trial judge first addressed the evidence of various expert witnesses as to where the fire started and what caused it.

He stated: [5] All … agreed that [the] fire started where electrical wires crossed over the top of a large beam in the crawlspace. … Braidx is a type of wiring which came into common use in the middle of the twentieth century. ….. … I am satisfied that a failure of the insulating wrapping or coating on this Braidx conductor compromised this insulative wrapping to the point whereby electricity flowing therein was able to arch or short circuit between the two wire strands.

This short circuiting resulted in sparks, which ignited adjacent combustible material whence the fire propagated. [ 6 ] It had been contended at trial by an expert witness called by Chafe that a failure to staple the Braidx conductors to the side of the floor joists in the manner required by the applicable electrical code caused the conductors to sag and then chafe in response to vibration within the Murphys’ building. Such chafing was said to have caused the deterioration of the conductors’ insulative coating which resulted in the fire.

The trial judge reviewed the evidence in this regard, which included the allegation that the relevant electrical work performed in 1982 had not been inspected and approved by inspectors of the City of St. John’s as required. The trial judge found that the City’s permit and inspection requirements had been complied with in 1982.

Considering the examination of the crawlspace which would have been integral to such inspection and considering other testimony that the fire itself may well have destroyed evidence that the conductors had been stapled the trial judge rejected the above contention of the expert witness called by Chafe respecting the cause of the fire. He stated: [14] In

summary, therefore, I am satisfied that the theory of the Plaintiff’s expert, to the effect that the damage to the offending conductors which ultimately resulted in arching, sparks and fire was caused by the negligent installation of the offending conductor, has not been proven by the Plaintiff. In other words, while I know that a breach of the insulative wrapping of the Braidx wire caused the arching and the sparks, I do not know what caused the deterioration of that insulative wrapping. Mr.

Edward Corbett, the master electrician whom I accepted as an expert in electrical causes of fire, postulated that there could have been several causes for the degradation of the insulation thereby causing the fire, including, (1) overloading of the circuits; (2) deterioration by age; (3) the possibility the wire was struck by a nail at some time; or (4) rats or other rodents gnawing on the covering. Due to the fact the wire only served to carry current to two standard light bulbs, I am satisfied overloading did not cause the fire. There was no evidence which supported the other possible factors outlined by Mr.

Corbett as being the actual cause of the degradation of the insulative covering on the subject conductor. [ 7 ] The trial judge turned to the further contention that the Murphys were negligent for having failed to inspect and/or replace defective wiring.

He noted the evidence regarding inspection and further observed: [15] … Both George Murphy and Irene Murphy testified that after they purchased the building they experienced no problems with the electrical system of the building and it functioned normally. [ 8 ] The trial judge later stated his finding on this evidence as follows: [28] I am satisfied on the evidence that the Murphys had no indication of any deficiency in the electrical system of the building to cause them to be suspicious of its integrity and any danger that it might pose to themselves or to any adjoining property owners.

I am satisfied that they were not even aware there was electrical wiring in the crawlspace of the building. … [ 9 ] The trial judge opened his review of the applicable law respecting the alleged negligence by reference to the following paragraph: An occupier of premises is under a duty to take reasonable care to prevent damage to persons and property on adjoining premises. The harm may result from failure to repair his premises or from negligent conduct in the use of them. Halsbury’s Law of England , 4th ed., v. 33 (London: Butterworths, 1997) p. 460, para. 639

[10] The trial judge was not satisfied however that the case cited in Halsbury established that proposition and therefore proceededto analyse whether Canadian law warranted the conclusion that a duty of care as alleged was owed by a property owner to adjoiningproperty owners. He quoted extensively from authorities culminating in Cooper v. Hobart, 2001 SCC 79 , [2001] 3 S.C.R. 537which established the framework to determine whether a duty of care should be imposed in a new situation.

In that case a two stageanalysis – the Anns test – was required addressing the following questions: “(1) was the harm that occurred the reasonably foreseeableconsequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the firstpart of this test, that tort liability should not be recognized here?” Cooper v. Hobart – para. 30. The trial judge quoted the furtherdirection given in Cooper v. Hobart respecting the second stage, namely: [37] This brings us to the second stage of the Anns test.

As the majority of this Court held in Norsk, at p. 1155, residual policyconsiderations fall to be considered here. These are not concerned with the relationship between the parties, but with the effect ofrecognizing a duty of care on other legal obligations, the legal system and society more generally. Does the law already provide aremedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class?

Are there other reasons ofbroad policy that suggest that the duty of care should not be recognized? … [11] The trial judge observed that the second stage of the above test brought into consideration some of the same factors applicableto the determination of the standard of care, namely the balancing of the likelihood of harm and its gravity as against the purpose of theact causing the harm and the cost or burden to eliminate the hazard. He cited Linden, Allen M. and Feldthusen, Bruce, Canadian TortLaw, 8th ed. (Markham, Ont.: Butterworths, 2006) at 130.

The trial judge continued as follows: [24] … This forces me to a consideration of the impact of finding, as the Plaintiff requests of the existence, a generalized duty on thepart of property owners to inspect their electrical systems, presumably on some periodic basis in order to ensure that the electricalsystems are not a hazard to cause fire, which fire would be injurious to adjoining properties which properties would broadly fall withinthe concept of a “neighbour” under the original Donahue v.

Stevenson conception of the neighbour concept. [25] I believe I can take judicial notice of the fact that most electrical wiring in residential and commercial buildings is not immediatelyexposed and open to view or easy inspection. Rather, it is buried in walls and behind other barriers and is not easily or cost effectivelyaccessible for inspection. If the law were to impose a duty on a purchaser to inspect and replace defective wiring, what would be theimpact upon the resale market for residential and commercial buildings?

Would not a purchaser want to inspect all the wiring system inorder to determine whether it needs to be repaired or upgraded prior to formulating his or her price offer for the building? Would not theowner of the building be concerned about damage to the building caused by an inspection which might ultimately determine that there isabsolutely nothing wrong with the wiring?

Who is to be liable for the costs of a reinstatement of the building necessitated by such aninspection? [26] The Plaintiff additionally postulates that notwithstanding an inspection at the time of purchase there is a duty upon owners ofproperties to cause inspections of their electrical wiring to determine that there has not been some injury or deterioration to it likely tocause a fire hazard. How frequently is such an inspection to take place?

Are there factors which give rise to an early duty to inspect or isthe duty to inspect an absolute one? [27] In my view, the cost implications of imposing a duty of regular inspection, regardless of the existence of any indicators of fault inthe electrical system, would be an excessive imposition of cost upon existing owners or prospective owners wishing to inspect a propertyprior to the purchase of it.

This has to be balanced against the chance or likelihood that harm will culminate and the gravity or severity ofthe potential harm that will ensue, if the accident transpires. … The impracticality of imposing a universal obligation to conduct full-blown electrical system inspections at the time of every sale of an existing property or periodically during the course of ownership of anexisting property is clearly evident.

The costs would be astronomical when balanced against the chance or a likelihood of electricallycaused fire and the gravity or severity of the potential harm that would ensue, if the accident transpires.

In my view, therefore, there is avalid policy reason, notwithstanding the fact that damage to adjoining properties by defective wiring in one’s own property may bereasonably foreseeable, to deny a generalized liability where an electrically caused fire emanating [from] one’s property spreads toanother. … [12] Based on the foregoing, and the absence of evidence that the Murphys had any indication of deficiencies in the electricalsystem, and the lack of an electrical code requirement which would have caused discovery of the defective wires, the trial judge foundno negligence on the part of the Murphys. [13] With respect to the claim in nuisance the trial judge held that the definition of nuisance imported realization or awareness onthe part of the alleged tortfeasor of the activities which gave rise to the nuisance.

The trial judge was not satisfied that there was suchawareness on the part of the Murphys and therefore was not satisfied that the tort of nuisance had been proven. [14] The trial judge addressed the argument at trial that the Murphys should be held strictly liable for the damage to Chafe inaccordance with the principle in Rylands v. Fletcher. That principle imposes strict liability if there is a non-natural use of land and anescape. The trial judge cited with approval the conclusion in Canadian Tort Law that ordinary activities are not considered to be non-natural under Rylands v. Fletcher.

He noted that there was no escape of electrical current from the Murphy property and concluded thatthe principle in Rylands v. Fletcher was inapplicable. [15] The trial judge filed additional reasons dismissing Chafe’s claim for damages for business interruption. APPEAL ISSUES

(1) Did the trial judge err in his findings of fact including those respecting the allegations of improper installation of wiring, the lackof an electrical inspection by the City of St. John’s and the Murphys’ lack of knowledge of electrical deficiencies?

(2) Did the trial judge err in law in failing to find that a property owner owes a duty of care to maintain the property’s electrical systemsuch that it does not pose a hazard to adjoining property owners?

(3) Did the trial judge err in finding that the Murphys were not aware of any deficiencies with the electrical system and were thereforenot liable in negligence for damages arising therefrom?

(4) Did the trial judge err in his reference to public policy considerations in his evaluation of the law of negligence?

(5) Did the trial judge err in finding that the Murphys were not liable in nuisance as they were not aware of any deficiencies with theelectrical system?

(6) Did the trial judge err in law and in fact in dismissing the claim for damages due to business interruption? ANALYSIS [16] This Court is bound by the standard of appellate review laid down by the Supreme Court of Canada, summarized recently byCameron J.A. in Cleary v. Courtney, 2010 NLCA 46 as follows: [15] The standards of review applied by this Court were discussed in Ring v. Canada et al., 2010 NLCA 20, at para. 6: The standard of review applied by an appellate court depends upon the nature of the matter being reviewed.

A pure question of law isreviewed on a standard of correctness and an appellate court is free to replace the opinion of the trial judge with its own. Findings of fact,on the other hand, cannot be reversed unless the trial judge has made a palpable and overriding error. A determination of whether a legalstandard was met involves the application of a legal standard to a set of facts which is a question of mixed fact and law.

A question ofmixed fact and law is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricableerror in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error inlaw and the applicable standard is correctness. These principles are well established: Housen v. Nikolaisen, 2002 SCC 33 ,[2002] 2 S.C.R. 235. Findings of credibility are part of the fact finding process and are subject to the same standard of review, as are inferences drawnfrom the facts.

If inferences drawn by the trial judge are reasonable, an appellate court should not intervene just because otherinferences could also have been reasonably drawn: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 74. … [17] In this case there was conflicting expert evidence respecting the manner of installation of the electrical wiring and its effectupon causation of the electrical fire. Consistent with the foregoing principles it is the trial judge who determined the weight to be givento such evidence in drawing inferences and making findings of fact.

The trial judge may choose to accept or reject all or part of anyexpert evidence and such determination by the trial judge is entitled to deference unless there has been a palpable and overriding error. Sports Villas Resort Inc., Re, 2000 NFCA 11, (2000), 185 Nfld. & P.E.I.R. 281. [18] I now turn to the issues on appeal. FACTUAL FINDINGS [19] Various factual findings of the trial judge were challenged on appeal. One such finding was that of lack of knowledge by theMurphys of the alleged electrical deficiencies on their property. There was a clear evidentiary basis for the trial judge’s finding in thisregard.

Specifically there was no evidence cited that the Murphys were aware of any problems with the wiring. Nor was there anyindication that the Murphys chose to be willfully ignorant of obvious problems. Whether there ought to have been inspections of theproperty is addressed below. [20] The notice of appeal disputed the trial judge’s dismissal of the contention of an expert called by Chafe which attributed the fireto negligent installation of the Braidx wiring in the crawlspace – see para. 6 above. It is clear however that the trial judge consideredcarefully the evidence of that expert.

He chose not to accept that evidence in view of the evidence to the contrary proffered by otherexpert witnesses. The reasons for his conclusion were logical and coherent and must be sustained. Equally, the trial judge’s finding thatthere had been an inspection performed by the City of St.

John’s in 1982 is a logical inference from the evidence of the electrician whoperformed the 1982 electrical upgrades and the expert witnesses who opined that the electrical utility would not have reconnected theservice without an inspection and approval by the City. [21] The trial judge’s findings respecting the point of origin of the fire and its cause, being the deterioration of the insulativewrapping of the Braidx wiring, were amply supported by the expert evidence and were not challenged on this appeal.

The trial judgefurther found that the cause of the deterioration of the insulative wrapping had not been proven – see Trial Decision para. 14 as quoted inpara. 6 above. That conclusion logically followed from the trial judge’s rejection of the contention of negligent installation and hisacceptance of the evidence of the expert Edward Corbett.

There is accordingly no palpable error in this regard. [22] Counsel for Chafe further argued that the trial judge erred in his consideration of an inspection of the property one year prior tothe Murphys’ acquisition inasmuch as the “inspection” was part of a property appraisal and was not conducted by a qualified electricalinspector. No copy of the appraisal was available at trial nor could the appraiser recall any details of his examination of the premises.

As noted by the trial judge, the appraiser testified that he would have entered the area in question and would have advised the formerowner of any electrical deficiencies he would have noted. I agree with counsel that such evidence is at best of limited weight. Howeverthere is no indication that the trial judge attached much significance to it. His stated reasons for dismissing the claims in negligence,nuisance and under the strict liability principle in Rylands v. Fletcher did not reference that evidence nor were they dependent uponacceptance of that evidence.

There is no logical basis for disturbing the trial decision because of its limited reference to such evidence. NEGLIGENCE [23] To succeed in a claim based on negligence a plaintiff must establish that “a duty of care exists; there has been a breach of theduty of care; and damage has resulted from the breach”. Ring v. Canada (Attorney-General), 2010 NLCA 20 at para. 50. The first

step in the negligence analysis is to address whether a duty of care was owed by the alleged tortfeasor to the plaintiff. If a duty of carewas owed it can only be discharged by the exercise of the standard of care required by the common law. Baker v. Russell, 2008 NLCA51 at para. 20. The standard of care at common law is that which “would be expected of an ordinary, reasonable and prudent person inthe same circumstances. Ryan v.

Victoria (City), (SCC), [1999] 1 S.C.R. 201 at para. 28. [24] The trial judge considered whether there existed a duty of care on the part of property owners to inspect their electricalsystems. Applying the Anns test he ultimately concluded that overriding policy considerations precluded recognition of that duty. Withrespect I cannot agree that application of the Anns test was warranted in addressing that issue. It was noted in Cooper v. Hobart andaffirmed in Childs v.

Desormeaux, 2006 SCC 18 that before engaging in the Anns analysis the Court must decide whether the case iswithin an established category in which the jurisprudence has already recognized a duty of care. The Anns analysis is only employed innovel situations. As stated in Canadian Tort Law: In considering whether the duty being challenged is a novel one and subject to the new Anns analysis, it should first … be determinedwhether it is in one of the categories that have been established or within a category analogous to an established category…. Analogousduties need not be tested by the new Anns formula either.

Judges should not be narrow-minded but open-minded in the task ofconsidering whether a truly new category or whether an analogous category is involved …. There are not that many imaginative newduty claims available. Most have been thought of before. It must also be remembered that not every new fact situation can beconsidered a new category of case. Duty is a general notion describing a class or type of case, not a particular fact situation.

The minutedetails of impugned conduct is not the stuff of duty but the task of the breach analysis. pp. 302-303 [25] In considering whether a proposed duty is within an established or analogous category the court is not restricted by thelitigant’s description of that duty. The court must decide whether the issue before it is truly the determination of whether there exists acertain broad duty covering a class of cases or whether it is in fact the ascertainment of the applicable standard of care, i.e., what wouldconstitute the reasonable care required to discharge a recognized duty of care.

In my view, the inspection of electrical systems orplumbing systems or a building’s structural integrity are instances of what may be required in particular situations to prove thatreasonable care was taken by a property owner to prevent damage to persons and property on adjoining premises. It is established at lawthat a property owner/occupier has a duty to take reasonable care to prevent such damage. Halsbury’s Law of England, para. 9 above. That duty was affirmed in Cunard and Wife v. Antifyre, Limited, [1933] 1 K.B. 551 (Div.

Ct.) in which, owing to the defendants’failure to repair, a piece of guttering fell through the glass roof of the plaintiffs’ kitchen which projected beyond the back wall of thepremises occupied by the defendants. Talbot J. held that the plaintiffs’ claim did not lie in nuisance: and that the plaintiff’s true cause of action (if they have one) is for negligence, for failure by an occupier of property to take reasonablecare that his property does not get into such a state as to be dangerous to adjoining property or persons lawfully thereon. p. 557 [26] As authority for that proposition Talbot J. cited Donoghue v.

Stevenson, (FOREP), [1932] A.C. 562 and LeLievre v. Gould, [1893] 1 Q.B. 491 (C.A.) in which latter case the English Court of Appeal specifically affirmed the duty of a propertyowner to take due care not to do that which could injure nearby properties or persons. [27] In addition to the foregoing line of cases which establish the general duty of property owners/occupiers to take reasonable careto prevent damage to adjoining properties there is a separate line of cases addressing liability for the escape of fire. See Klar, Lewis N.,Tort Law, 4th ed. (Toronto: Carswell, 2008) at 635-639.

The early common law imposed strict liability upon owner/occupiers for firewhich escaped from their premises. That was mitigated in England by enactment of the Fires Prevention (Metropolis) Act, 1774 (theAct) which excluded liability for fires which “accidentally begin”. That Act does not cover a fire which begins or is spread bynegligence. H. & N. Emmanuel Ltd. v. Greater London Council et al., [1971] 2 All E.R. 835 (C.A.). There being no apparent localcustom or practice to the contrary, the Act was part of the English law received in this jurisdiction as of 1832.

See Port Coquitlam v.Wilson, (SCC), [1923] S.C.R. 235 respecting the application of the Act in British Columbia. These authorities stand forthe proposition that an owner/occupier is responsible for damages caused by the escape of fire if the fire is caused by his or hernegligence and that the onus of proving negligence falls upon the plaintiff. See Franks v.

Sanderson, (BC CA),[1988] 5 W.W.R. 113 (B.C.C.A.). [28] It follows from the above-noted general authorities and those pertaining to the escape of fire that an owner/occupier does owe aduty to take reasonable care to prevent damage, and in particular, damage caused by fire, to persons and property on adjoining premises. [29] Accordingly I now turn to the contentions that the Murphys omitted to do that which a reasonable person would have done inrespect of the electrical system on their property. [30] Reference was made to the St.

John’s Electrical By-Law, By-Law No. 1321 which provided: 20(1) It shall not be lawful to have any defective or hazardous electrical work or defective or hazardous electrical installation in anybuilding in the City of St. John’s. There is no requirement or recommended procedure provided for periodic inspection of buildings in St. John’s to ensure compliance. Itis well established that contravention of a statute, and thereof a by-law, is not an independent basis for tort liability. In The Queen(Can.) v.

Saskatchewan Wheat Pool, (SCC), [1983] 1 S.C.R. 205 the Supreme Court of Canada rejected the view thatbreach of a statute constituted negligence per se, giving rise to absolute liability. The civil consequences of a breach of a statute aredetermined within the law of negligence. The statute would be relevant insofar as it indicates a standard of reasonable conduct: Legislative standards are relevant to the common law standard of care, but the two are not necessarily co-extensive.

The fact that astatute prescribes or prohibits certain activities may constitute evidence of reasonable conduct in a given situation, but it does notextinguish the underlying obligation of reasonableness.

Ryan v. Victoria (City) at para. 29. And see Exploits Valley Air Services Ltd. v. College of the North Atlantic (Board ofGovernors), 2005 NLCA 54 at para. 26. [31] A finding of negligence must be based on a failure to take reasonable care and therefore relates to the actual or constructiveknowledge of the alleged tortfeasor prior to the fire. Reasonable care, the established standard in negligence is an objective standard – itis the care that would have been taken in the circumstances by a person of ordinary intelligence and prudence.

A reasonable person willconduct himself or herself so as to prevent the creation of reasonably foreseeable risks of harm. Resurfice Corp. v. Hanke, 2007 SCC 7, 2007 S.C.C. 7. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known orforeseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. Ryan v.

Victoria(City) at para. 28. [32] Counsel for Chafe contended that the Murphys did not take reasonable care in that they failed to inspect their electrical system,though there was a reasonably foreseeable risk of harm. The evidence and findings of the trial judge however do not support theconclusion that the defect in the electrical system causing the fire was reasonably foreseeable. The Murphys had continued thelongstanding commercial use of the property.

There was no evidence of prior problems with the electrical system and the trial judgespecifically found that the Murphys had no indication of any deficiency in the electrical system. [33] With respect to the potential for harm it must be borne in mind that the use of electric wiring for domestic or, as in this case,commercial use is an ordinary incident of modern life. In the absence of cause for concern the continued use of an existing electricalsystem cannot be regarded as inherently dangerous. See Collingwood v.

Home & Colonial Stores Ltd., [1936] 3 All E.R. 200 (C.A.)commenting on that aspect of the principle in Rylands v. Fletcher. [34] Counsel for Chafe disputed the trial judge’s determination respecting the costs of electrical inspections, and its effect upon therecognition of a duty of care. Cost implications are a factor in determining whether the standard of reasonable care was met. There washowever no evidence cited respecting the costs of periodic inspections. [35] It is often useful in determining whether a person’s conduct was reasonable to have regard to evidence of general practice.

Inthis case there was no evidence of general practice with respect to electrical inspections of commercial properties. As noted above thereare no regulatory directions respecting periodic electrical inspections. [36] Having regard to the foregoing it is my conclusion that in the circumstances of this case the Murphys did not breach thestandard of care required by them.

NUISANCE [37] In discussing the claim based in nuisance the trial judge cited including the following text passage: Basically, what the courts are doing here is furnishing compensation to those whose use and enjoyment of private land or public rights isbeing interfered with by the unreasonable use of another’s land. (My underlining) Canadian Tort Law, pp. 559-560 [38] The trial judge reasoned as follows: [31] It is to be noted that an essential element of the tort of nuisance is that the tortfeasor’s use of his own land must be unreasonableand must interfere with the use and enjoyment of the private land of another.

The definition imports some sort of realization orawareness on the part of the tortfeasor of his activities which give rise to the nuisance. I am not satisfied in the case at hand that therewas any such awareness on the part of the Defendants of any activities conducted by them on their own property which would or couldcause a nuisance to the Chafe Property.

I am therefore not satisfied that the tort of nuisance has been committed. [39] Counsel for Chafe submits that awareness on the part of the alleged tortfeasor is not an essential element of nuisance and that itis solely the effect of the impugned conduct that is determinative. Counsel referred to Pilgrim v. Milner (1997), (NL CA), 155 Nfld. & P.E.I.R. 221 (NFCA) in support of that assertion. In deciding that case, which decided whether landowners had aright to water from a system owned by an adjacent property owner, it was unnecessary for this Court to discuss all aspects of the law ofnuisance.

Nevertheless the Court did comment on the nature of the impugned conduct as follows: [24] … But, there was no material damage to the land (the lots of the appellants), nor were noxious substances diverted to the land tointerfere with the occupier's enjoyment of it. This case does not turn on whether the behaviour of Milner or of the appellants in theirnegotiations was reasonable.

It cannot be an unreasonable interference with the use and enjoyment of land of the appellants to do whatone has every legal right to do when it does not interfere with a right of the appellants - who had no right to the flow of water in thepipes. [40] This comment confirms that, as referenced by the trial judge, the reasonableness of the use of land by the alleged tortfeasor isrelevant in determining whether nuisance has been established.

As stated by Klar: the fact that the defendant’s conduct is consistent with ordinary uses of land is a factor in determining whether it is a reasonable orunreasonable interference for the purpose of balancing conflicting uses. p. 742, citing 270233 Ontario Ltd. v. Weall & Cullen Nurseries Ltd. (1997), 41 C.C.L.T. (2d) 239 (Ont. C.A.)

To the same effect is Canadian Tort Law which states: The ultimate question to be asked is whether the defendant is using the property reasonably having regard to the fact that the defendanthas a neighbour. p. 573 [41] The determination of whether certain conduct constitutes a nuisance therefore turns on the balancing of the interests of adjacentlandowners having regard to the reasonableness of the impugned conduct. This was clearly stated by LaForest J. in Tock v. St.

John’sMetropolitan Area Board, [1989] 2 S.C.R. 181 as follows: The assessment whether a given interference should be characterized as a nuisance turns on the question, simple to state but difficultto resolve, whether in the circumstances it is reasonable to deny compensation to the aggrieved party. The courts have traditionallyapproached this problem of reconciling conflicting uses of land with an eye to a standard based, in large part, on the formulations ofKnight Bruce V.-C. in Walter v. Selfe (1851), 4 De G. & Sm. 315, 64 E.R. 849, and Bramwell B. in Bamford v.

Turnley (1862), 3 B. & S.66, 122 E.R. 27, at pp. 83-84 and at pp. 32-33 respectively. There it was observed that the very existence of organised society dependedon a generous application of the principle of "give and take, live and let live". It was therefore appropriate to interpret as actionablenuisances only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by thoseof plain and sober tastes.

In effect, the law would only intervene to shield persons from interferences to their enjoyment of property thatwere unreasonable in the light of all the circumstances. p. 1191 And see Pugliese v. Canada (National Capital Commission) (1977) (ON CA), 3 C.C.L.T. 18 at pp. 51-52 (Ont. C.A.) [42] In this case the reasonableness of the Murphys’ conduct that falls to be considered is the use of their property’s electricalsystem in operating a retail store in a retail district. Both the store operation and the related usage of the electrical system were longestablished and were not alleged to be unreasonable per se.

There was no evidence of prior problems with the electrical system. [43] In my view in order for ordinary conduct, such as the use of the electrical system in operating a store, to constitute a privatenuisance a single isolated act causing damage should not be regarded as sufficient. See Bolton v. Stone, [1949] 2 All E.R. 851 perJenkins L.J.; Alberta v. Hay, 2002 ABQB 282 , [2002] 5 W.W.R. 653 at para. 82. In such circumstances a pattern ofmisfeasance or nonfeasance should be required – Copithorne v.

Transalta Utilities Corp., 2005 ABQB 169 – or the alleged tortfeasorshould otherwise know or ought to have known that he or she was “causing or permitting a state of affairs from which damage is likely toresult”. Bolton v. Stone at pp. 855-856. That was likewise the conclusion in Nikka Overseas Agency v. Canada Trust Co. et al.(1961), (BC SC), 31 D.L.R. (2d) 368 (B.C.S.C.) in which Lord J. discussed the earlier English decision in Spicer v.Smee, [1946] 1 All E.R. 489, a case cited by Counsel for Chafe. I agree with the conclusion of Lord J. that Spicer v.

Smee is not inaccordance with subsequent Canadian authority and that “if the defendant did not create the nuisance he must, if he is to be heldresponsible, have continued it, which I think means simply neglected to remedy it when he became or should have become aware of it”per Lord Wright in Sedleigh-Denfeild v. O’Callaghan, [1940] A.C. 880 at p. 905. [44] Accordingly, I conclude in the circumstances of this case that the trial judge did not err in dismissing the claim in nuisance.

DAMAGES [45] As liability has not been established for the reasons stated above it is unnecessary to address the issue pertaining to damages.

SUMMARY 1) The trial judge made no palpable and overriding error in his findings of fact; 2) The trial judge erred in finding that a duty of care was not owed by the Murphys to adjoining property owners; 3) The Murphys did not breach the applicable standard of care; 4) The trial judge made no error in dismissing the claim in nuisance. [46] Accordingly, the appeal is dismissed. The Murphys shall have their costs in this Court to be taxed on a party and party basis. ________________________ K.J. Mercer, J.A. I concur: _______________________ B.G. Welsh, J.A. I concur: ________________________ L.R. Hoegg, J.A.