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The legal category of nuisance may be easier to use for long distance air pollution after a recent comment by the Ontario Court of Appeal. In Antrim Truck Centre Ltd. v. Ontario (Transportation), 2011 ONCA 419 (CanLII), Justice Epstein ruled that nuisance claims can be successfully made, no matter the distance between the source and the damage, if causation can be proved:

“[116]      Furthermore, as a practical matter, I do not see why proximity should be an element of the test for nuisance.  I accept that for some types of activity that affect another’s property, it may become more difficult to establish nuisance the farther the activity is from the affected land.  The activity in this case, the alteration of road configuration, may be one such activity.  However, this does not mean that one who has suffered an interference with the use and enjoyment of his or her land should be barred from seeking compensation for that interference simply because its source is geographically distant from the affected property.  For example, one could hardly suggest that the owner of a smoke stack bellowing chemicals into the air should be immune from an action in nuisance brought by the owner of a tourist resort who was able to demonstrate that its trees were dying as a result of the effluent, simply because the resort was hundreds of miles away from the polluter: see Smith v. Inco Ltd.[2]

I wonder if that will make civil claims easier against the tar sands?

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