Court of Appeal for Ontario

Date: 2018-06-22 Docket: C64184 Judges: Simmons, Huscroft and Miller JJ.A.

Between

Alana Boodhoo and Janet Boodhoo Plaintiffs/Appellants

and

Marivic Manuel, Albert Manuel and Fernando Padilla Defendants/Respondents

Counsel

Stephen Dyment, for the appellants

Jarvis Ortega, for the defendants

Heard and released orally: June 22, 2018

On appeal from: the judgment of Justice Laura Bird of the Superior Court of Justice, dated July 17, 2017.

Reasons for Decision

[1] The trial judge dismissed the Boodhoos' claims against their neighbours, the Manuels, arising from the Manuels' installation of a furnace and a hot water heater with venting on the side of the Manuels' house. Among other things, the Boodhoos claimed that emissions from the side venting are: (1) obnoxious; (2) created fumes and vapours that caused one of the Boodhoos to feel ill; (3) caused an ice buildup on their walkway; and (4) had the potential to cause a future danger to the siding of their house.

[2] The proceeding was commenced by application but converted by order to an action. Prior to the delivery of the Statement of Claim, the Manuels moved the venting to the back of their house.

[3] The trial judge analyzed the Boodhoos' claims as a claim in nuisance. She found that the Boodhoos' complaints did not rise to the level of being a substantial interference with the Boodhoos' enjoyment of their property. In particular, she found that: (1) the Boodhoos' expert had not conducted any testing concerning carbon dioxide and other gas emissions; (2) the claims of feeling ill, were bald and not supported by medical evidence; (3) any ice buildup was not significant; and (4) the claims about future damage to the exterior of the house were speculative. She dismissed the action.

[4] The Boodhoos do not appeal the dismissal of their claim for damages. Rather, they appeal from the dismissal of their claim for a mandatory order requiring the Manuels to move the venting to the top of their house.

[5] We see no merit in this appeal. To the extent that the legal basis for the appellants' claim rested in nuisance, the trial judge made no errors in law or palpable and overriding errors of fact in assessing their claim. Absent a finding of nuisance, the appellants failed to demonstrate any legal basis for issuing a mandatory order. On our reading of the trial judge's reasons, the issues in the order directing the trial of an action were subsumed within her reasoning and finding that nuisance was not established.

[6] The appeal is dismissed.

[7] Costs of the appeal are to the respondents, on a partial indemnity scale fixed in the amount of $5,000, inclusive of disbursements and applicable taxes.

"Janet Simmons J.A."

"Grant Huscroft J.A."

"B.W. Miller J.A."