Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff alleged that 12 blue spruce trees planted by neighbouring property owners constituted a "spite fence" causing actionable private nuisance by obstructing his panoramic views.

• Canadian law has consistently held that loss of view or prospect cannot ground a claim in private nuisance, as established in St. Pierre v Ontario.

• The two-part Antrim test requires interference to be both substantial and unreasonable, with loss of view failing to meet the threshold requirement.

• American "spite fence" authorities were deemed distinguishable since U.S. nuisance law has diverged from the traditional British model followed in Canada.

• Alleged malicious intent in planting trees relates only to the second stage of reasonableness analysis, not whether view obstruction constitutes substantial interference.

• The appeal was allowed and the Statement of Claim was struck pursuant to Rule 3.68 of the Alberta Rules of Court.

The dispute between neighbouring landowners

Darrell Nelson and James A. Whitney and Tammie L. Whitney own neighbouring properties in a subdivision south of Calgary. The Whitneys purchased their property on or about March 1, 2023, while Nelson purchased his property on or about May 1, 2024. The properties, along with two other lots in the subdivision, run up a slope and are renowned and valued for their unobstructed views of the City of Calgary and Bow Valley. A restrictive covenant registered against both properties restricts the size of building envelopes on each lot in order to preserve the views of each successive lot. Nelson's lot is higher up the slope than the Whitneys'.

Attempts to modify the restrictive covenant and subsequent events

Shortly after moving onto the property in May 2024, the Whitneys sought Nelson's consent to make changes to the restrictive covenant in order to allow development on the Whitney property outside and to the west of the hatched areas shown in the Restrictive Covenant, as well as numerous other changes. Nelson advised the Whitneys that he did not consent to changes to the Restrictive Covenant. The Whitneys persisted with four further communications between May 23rd and 29th, but Nelson did not resile from his position. On October 1, 2024, Nelson observed excavation and foundation report work commencing on the Whitney property. He was concerned that the Whitneys were proceeding with their plans to build in violation of the Restrictive Covenant. On October 16, 2024, counsel for Nelson sent a registered letter to the Whitneys demanding that they cease and desist from any construction in violation of the Restrictive Covenant. Following receipt of that correspondence, Whitney contacted counsel for Nelson and agreed to have a licensed surveyor attend at the Whitney property on November 5, 2024, to measure and confirm the extent of construction.

The planting of the trees

On October 28, 2024, the Whitneys caused 12 blue spruces to be planted on their side of the fence line. The blue spruce trees were approximately 25 feet high when they were planted. When mature they will grow to between 40-60 feet high. Between each blue spruce tree, the Whitneys caused to be planted an unknown species of deciduous tree. Nelson alleged the trees were planted so as to constitute a "spite fence" with the sole malicious intention of blocking his view. According to the Statement of Claim, the panoramic views of the mountains, city and Bow River Valley have been substantially or completely obstructed by the trees.

The legal framework for private nuisance

The tort of private nuisance occurs when a person is responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable. The Supreme Court of Canada's decision in Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation) established that the elements of a claim in private nuisance require the interference with the owner's use or enjoyment of land to be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. This threshold requirement provides a means of screening out weak claims before having to confront the more complex analysis of reasonableness.

Established Canadian law on loss of view

The court examined longstanding jurisprudence on claims involving loss of view. As stated in St. Pierre v Ontario (Minister of Transportation and Communications), from the very earliest times, the courts have consistently held that there can be no recovery for the loss of prospect, citing authorities dating back to William Aldred's Case (1610). The majority of Canadian decisions clearly accept the proposition that a loss of prospect or the loss of a view is not compensable as a private nuisance, including Sabo v AltaLink Management Ltd, 2024 ABCA 179, a decision binding on the Court. In Becze v Edmonton (City), Justice Nash stated, "In conclusion, in Canada, the law seems settled that there is no action in nuisance for loss of view." While there have been several non-binding Canadian authorities where courts deviated from the strict rule against recovery for loss of views, the court did not find them persuasive.

The ruling and outcome

Justice D.V. Hartigan of the Court of King's Bench of Alberta allowed the Defendants' appeal and struck the Plaintiff's Statement of Claim pursuant to Rule 3.68. The court concluded that the overwhelming authority in Canada stands for the proposition that a loss of view cannot be the basis of a claim in private nuisance. Recognizing the responsibility not to inhibit the development of the common law, the court did not find that this case represents a novel factual or legal framework such that it is a novel claim, and therefore found that the Statement of Claim discloses no reasonable cause of action. The question of whether the reference to malice was nothing more than a bald or bare assertion unsupported by facts did not need to be determined, since the Plaintiff had not met the requisite threshold on the first part of the Antrim test, and malice goes to the second part of the test (reasonableness). The Whitneys were successful in having the claim dismissed. If the parties cannot agree to costs, they may contact the Court Coordinator to arrange a remote hearing or make written submissions within 30 days of receipt of the decision. No specific monetary amount was ordered in this decision.