Milo Sturm

The appellants appealed a trial judgment finding that a dock they constructed on Lake Simcoe constituted a private nuisance to the neighbouring respondent.

The trial judge had ordered a mandatory injunction for the dock's removal, punitive damages of $100,000, and substantial indemnity costs.

The Court of Appeal upheld the finding of nuisance and the mandatory injunction, noting the dock substantially and unreasonably interfered with the respondent's ability to use their boat.

The Court also upheld the punitive damages against the property owners (Garber) due to their refusal to remedy the nuisance.

However, the Court allowed the appeal in part by setting aside the punitive damages against the contractor (Nealon) and reducing the costs awarded against him to a partial indemnity scale, finding his conduct did not warrant such exceptional penalties.

The defendant was charged under the Public Lands Act with dredging and filling shore lands without a permit.

The defendant had obtained a permit from the local conservation authority for some work but proceeded to alter the shoreline below the high-water mark without the required provincial permit.

Despite being ordered to stop work, the defendant continued, claiming he needed to protect the shoreline from erosion and mistakenly believing no further permits were required.

The court found that the prohibited acts of dredging and filling were proven beyond a reasonable doubt.

The court rejected the defences of due diligence and officially induced error of law, noting that the defendant continued the unauthorized work even after being explicitly told to stop.

The defendant was found guilty.