Dr. Elaine MacDonald

The appellant construction company appealed a Small Claims Court judgment awarding the respondent residents $14,700 in damages for nuisance, trespass, and negligence arising from noise and odour emitted by a temporary asphalt plant.

The Divisional Court upheld the finding of liability in nuisance, concluding the trial judge made no palpable and overriding errors in assessing the severity of the interference or the character of the neighbourhood.

The court also upheld the trial judge's decision to qualify the respondents' expert witness despite her employment with an environmental advocacy group.

However, the court allowed the appeal regarding trespass and negligence, finding that noise and odour are indirect intrusions that do not constitute trespass, and that the respondents suffered no compensable personal injury or property damage to ground a negligence claim.

The damages award remained unchanged.

The appellant appealed a Small Claims Court decision finding it liable in nuisance, trespass, and negligence for noise and odour emanating from its temporary asphalt plant.

The Superior Court of Justice upheld the finding of liability in nuisance, concluding the trial judge made no palpable and overriding error in assessing the severity of the interference or the character of the neighbourhood.

The court also upheld the trial judge's decision to qualify an expert witness employed by an environmental advocacy group, finding her employment did not automatically disqualify her.

However, the court allowed the appeal regarding trespass and negligence, finding that noise and odour are indirect intrusions that do not constitute trespass, and that the respondents suffered no personal injury or property damage compensable in negligence.

The damages award of $14,700 was upheld.