Executive Summary: Key Legal and Evidentiary Issues

• Court found no legal liability on Canada or Greenfield for the alleged nuisance experienced by the Havelkas.

• The project’s disruptions were considered a prima facie nuisance but justified under statutory authority.

• No negligence was proven against Greenfield in executing the government’s construction project.

• Statutory immunity applied, shielding both Canada and Greenfield from liability.

• The Havelkas' self-represented testimony was extensive but countered by official records and reports, despite some late disclosure.

• Loss of view from the new wharf was ruled non-compensable under established nuisance law.

Background and claims

Jiri and Mary Havelka, both highly educated professionals, moved from Toronto to Port La Tour, Nova Scotia, in 2013, seeking a quiet rural life. They purchased the only residence near a federally operated Small Craft Harbour. In March 2019, the Government of Canada initiated a project to tear down and rebuild the wharf, adjacent to the Havelkas’ home. Greenfield Construction Ltd. was contracted to carry out the work, which was substantially completed by October 31, 2020, with some residual work continuing as late as February 2022.

The Havelkas alleged that the construction caused substantial and unreasonable interference with their use and enjoyment of their property, including adverse effects on their mental and physical health. They described their experience as “living on a construction site,” citing loud pile-driving, heavy machinery blocking their driveway, dust, odours, and bright lighting. The couple filed an Amended Application on October 29, 2020, claiming the Respondents committed the tort of nuisance and acted negligently. They sought special, general, aggravated, and punitive damages, injunctive relief to halt construction, prejudgment interest, and costs.

Defences raised

Greenfield denied liability, asserting it did not act negligently and that any interference was incidental to lawful contract fulfillment. It also argued that the Attorney General of Canada was vicariously liable for its actions as an agent of the federal government.

Canada filed an Amended Notice of Contest on May 11, 2022, arguing that no nuisance had been established and relying on statutory defences under:

• the Crown Liability and Proceedings Act,

• the Federal Courts Act,

• the Protection of Property Act, and

• the Fishing and Recreational Harbours Act.

Canada also invoked statutory immunity, contending that relief sought against its “servants” was barred unless available against the Crown itself.

Trial and evidentiary considerations

The trial took place over 18 days from September 6, 2022, to August 20, 2024. The Havelkas, self-represented, submitted detailed affidavits and video/photo evidence. Canada presented an affidavit from Sylvia MacDonald, P.Eng., Project Manager with Public Services and Procurement Canada, while Greenfield submitted an affidavit from Breanne Tozier, Vice President. Both were found credible, though they had limited physical presence on-site.

Some Site Inspection Reports from November 28, 2019, to November 27, 2020, were not disclosed until April 2024. These were eventually delivered to the Applicants and entered into the record. The court accepted them as business records under section 23 of the Nova Scotia Evidence Act, though noted their limited content and the absence of cross-examination of their author.

Legal findings

The court accepted that the construction caused periods of prima facie nuisance, including blocked access, noise, and disruption to daily routines. However, it held that:

• the project was clearly authorized by legislation, including section 5 of the Fishing and Recreational Harbours Act and sections 6 and 7 of the Department of Public Works and Government Services Act,

• reasonable, if not wholly effective, steps were taken to mitigate nuisances,

• no negligence was proven in Greenfield’s work, and

• Greenfield acted as a servant of Canada and was protected by statutory immunity.

The court considered case law including Antrim Truck Centre Ltd. v. Ontario, Ryan v. Victoria (City), and St. Pierre v. Ontario (Minister of Transportation and Communications). While the Havelkas argued that the new wharf altered their ocean view, the court reaffirmed that such a loss is not compensable under nuisance law.

Conclusion

Justice Rosinski dismissed all of the Havelkas’ claims. He ruled that Canada and Greenfield were not legally responsible for the alleged nuisance. The court also declined to award relief for the claimed loss of view, citing established Supreme Court precedent. Written submissions on costs were invited according to a set schedule.