B.C.C.A. Dismisses Airport Nuisance Claims
On July 3, 2002, the British Columbia Court of Appeal issued reasons in Sutherland v. Vancouver International Airport Authority. The court allowed the appeal and dismissed the plaintiffs’ claims for nuisance arising from aircraft using a new runway at the Vancouver International Airport that opened in 1996.
The claim was commenced in 1997 as an intended class proceeding. When the application for certification was dismissed in November 1997, the owners of several hundred properties were added as plaintiffs. The claims of the owners of three properties were tried over 41 days in the fall of 2000. Judgment was given in July 2001 awarding the plaintiffs damages ranging between $40,000 and $75,000 per property. The trial judge found that the noise from the aircraft using the new runway constituted a nuisance and concluded that the defence of statutory authority was not available to either the airport authority or the federal crown.
Although the court agreed that the aircraft noise constituted a nuisance, it allowed the appeal, concluding that the defence of statutory authority had been established. The court concluded that the operation of the runway at its precise location was authorized by a statutory scheme implemented by the federal government under various acts and regulations, and the nuisance was the inevitable result of its location and operation.
Allan Seckel and Andrew Borrell (litigation and class actions) of Fasken Martineau DuMoulin LLP represented the airport authority. George Carruthers and Glenn Rosenfeld of the Department of Justice represented the Attorney General of Canada. Brian Morgan and Mahmud Jamal of Osler, Hoskin & Harcourt LLP represented the intervenor, Canadian Airports Council. Darrell Roberts, Q.C., and John Shewfelt of Miller Thomson LLP represented the plaintiffs.