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Successful applicant awarded reduced costs after partial success on injunction application.
Costs decision following an application in which the municipality obtained a permanent injunction restricting the respondent’s use of an outdoor wood burning furnace for part of each year due to interference with neighbouring properties.
Both parties sought partial indemnity costs and relied on settlement positions to justify their claims.
The court rejected the respondent’s argument that his prior settlement offer placed the municipality in a worse position than the judgment, noting that the offer required payment of legal fees and equipment installation costs.
While the municipality succeeded in obtaining an injunction, the relief granted was narrower than requested because the restriction applied only for part of the year.
Considering partial success and the factors in Rule 57.01 of the Rules of Civil Procedure, the court awarded reduced costs to the municipality.
Permanent injunction granted restricting outdoor wood furnace operation during warmer months due to smoke.
The applicant municipality sought a permanent injunction under section 440 of the Municipal Act, 2001 to restrain the respondent from operating an outdoor wood-burning furnace, alleging it contravened a by-law prohibiting emissions that unreasonably interfere with the normal enjoyment of property.
Neighbours complained of thick smoke infiltrating their homes and preventing outdoor activities.
Applying nuisance law principles, the court balanced the severity of the interference against the utility of the furnace.
The court found the smoke constituted an unreasonable interference during the warmer months and granted a permanent injunction prohibiting the operation of the furnace between April 1 and October 15 annually.
