[1] David Bahra is the president of TMS, a company that manufactures high-end commercial lighting fixtures. Kulwant Singh is the president of KJS, a company that operates a fleet of transport trucks. Since 2007, the two companies have occupied adjacent lands in a prestige industrial/commercial neighbourhood in Brampton. Mr. Bahra complains that since KJS moved into the neighbourhood, it has interfered with his company’s manufacturing operation. He says that KJS’ trucks have driven onto his company’s driveway and struck and displaced concrete barriers lining the driveway, designed to prevent trespasses. He also says that for five years, from when KJS moved in until it paved its parking lot, KJS’ trucks raised dust from its unpaved lot that blew into his factory and settled on the lighting fixtures being manufactured there.

[2] Mr. Bahra’s companies have brought the present action against Mr. Singh and his companies to recover damages they say they suffered due to the nuisance from the dust, to the trespasses from the trucks, and to prevent KJS’ trucks from continuing to trespass. Mr. Singh submits that his trucks’ trespasses have been occasional and trivial, that the dust did not interfere in any substantial way with TMS’s use of its property, so as to amount to an actionable nuisance, and that damages have not been proven.

ISSUES

[3] The issues to be decided in the action are:

Did dust from KJS’ parking lot cause a substantial interference with TMS’ use of its property, amounting to an actionable nuisance and, if so, what damages, if any, did TMS suffer?
Has KJS trespassed on TMS’ property with Mr. Singh’s knowledge and, if so, what damages, if any, has TMS suffered?

BACKGROUND FACTS

[4] Mr. Bahra is an owner, director, and president of TMS Lighting Ltd., a manufacturer of high-end commercial light fixtures. He is also the president of the plaintiff Bahra Holdings Inc. which, since 2002, has owned the property at 247A Sommerlea Road in Brampton (“the TMS property”) where TMS operates its factory. Bahra Holdings paid $949,000.00 for the TMS property, which it chose in a prestige neighbourhood so that TMS would have clean premises in which to manufacture its lighting fixtures, and presentable premises in which to display its manufacturing operation to customers.

[5] Mr. Singh is a director and shareholder of 1707416 Ontario Inc. (“the numbered company”), as well as a director, shareholder, and manager of KJS Transport Inc. (“KJS”), a transport company that owns a fleet of transport trucks and trailers. On August 31, 2006, the numbered company bought the property at 247 Sommerlea Road (“the KJS property”), immediately adjacent and to the south of the TMS property. It has used the KJS property since then as an office, a warehouse, and a depot and parking lot where its trucks and trailers load and unload freight.

[6] For convenience, TMS Lighting Ltd. and Bahra Holdings Inc. will be referred to collectively as TMS, and Mr. Singh, the numbered company, and KJS Transport Inc. will be referred to as KJS.

[7] KJS’ parking lot does not have the turning radius necessary for the company’s eighteen-wheel trucks to enter and back up to its loading docks. Its trucks therefore drive routinely onto TMS’ driveway when performing these manoeuvres.

[8] In order to prevent KJS’ trucks from driving onto its driveway, TMS installed 6 inch high concrete curb stones along the outer edge of its driveway. KJS’s trucks rolled over the curb stones, eventually destroying them. TMS later installed larger, 3 foot high, concrete blocks to replace the curb stones. KJS’ trucks continue to strike these blocks, moving them onto TMS’ driveway, where they interfere with the ability of TMS’ own drivers and suppliers to access TMS’ loading doors at the back of its property. TMS must therefore dispatch its employees with fork-lift trucks to re-position the blocks.

[9] Until KJS’ parking lot was paved, its surface consisted mainly of gravel, soil, and sand. When KJS’ trucks and trailers drove over it, they raised dust, which the wind blew onto the TMS property. During the summer months, if TMS left its factory doors and windows open for ventilation, the dust blew in and settled on the lighting fixtures being manufactured or awaiting shipment. If TMS closed its windows and doors, its fans still sucked in some of the dust from the outside, and the heat inside the factory became intolerable, forcing work to slow down or stop.

POSITIONS OF THE PARTIES

(a) TMS’ position

[10] TMS says that its management complained to KJS’ management about the dust as early as the summer of 2007. It was not until four years later, in late June 2011, three years after it had issued its Claim and after it had set its action down for trial, that KJS finished paving its parking lot, bringing the dust problem to an end. By then, TMS says, the dust had caused it to lose substantial revenues from lost productivity when its employees were required to:

a) clean dust from products being assembled and packed;

b) re-paint or re-finish products contaminated by dust;

c) package products to protect them from dust; and

d) interrupt their work due to intolerable heat inside their factory when the doors and windows were closed to prevent dust from entering.

[11] TMS says that losses in its employees’ productivity have continued on a smaller scale as a result of KJS’ truck’s continued trespass onto TMS’ driveway, when TMS is required to deploy its employees with fork-lift trucks to re-position its concrete blocks.

[12] It is not disputed that TMS’ gross revenue were $9,223,104.51 from April 1, 2007, when KJS bought its property, to June 30, 2011, when KJS finished paving its parking lot (“the claim period”). TMS estimates that it suffered losses of between 2 and 7% of its gross revenues during this period, or between $184,000.00 and $645,000.00, due to the lost productivity of its employees.

[13] TMS asserts that it continues to suffer losses by reason of the continued trespass of KJS trucks onto its driveway. It claims damages for its past losses and a permanent injunction to restrain KJS from continuing to trespass on its property.

(b) KJS’s position

[14] Mr. Singh denies that TMS’ management complained about the dust in 2007. He says that their only discussion before he received TMS’ Statement of Claim in 2008 concerned an application he had made to the City of Brampton for a license to repair his trucks on his property, which TMS opposed.

[15] Mr. Singh acknowledges that the City charged KJS with a zoning violation for maintenance deficiencies, including failure to pave its parking lot, but he denies having known that the charge resulted from TMS’ complaint. KJS also admits that its trucks caused dust to rise from its parking lot but denies that this substantially interfered with TMS’ use of its property.

[16] KJS says that it took reasonable and timely steps to address the dust problem. After TMS complained and KJS was charged under the city by-law, KJS laid a half inch of crushed stone on its parking lot, bringing its property into compliance with the by-law. It later arranged for an asphalt surface to be laid, which eliminated the dust problem. It opposes TMS’ claim for damages and submits that an injunction is an unnecessary and oppressive remedy.

[17] KJS, while admitting that its trucks have occasionally driven onto TMS’ driveway, denies that this has caused any loss to TMS beyond the inconvenience that it brought upon itself by trying to prevent the trespasses.

ANALYSIS AND EVIDENCE

1. Did the dust from KJS’ parking lot substantially interfere with TMS’ use of its property and constitute a nuisance?

a) The jurisprudence

(i) The legal definition

[18] In St. Pierre v. Ontario (Minister of Transportation & Communications),[^1] in 1987, McIntyre J., for the court, accepted as a working definition of private nuisance, the following one found in an early edition of Street on Torts:

A person, then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable. [Emphasis added]

[19] As the Court of Appeal noted in Smith v. Inco Ltd., in 2011, it follows from this definition that the interference which nuisance entails can take two different forms, namely, physical injury to land or substantial interference with its use. Courts have taken a different approach to each. The Court in Smith v. Inco Ltd. stated:

As evident from the definition relied on in St. Pierre, while all nuisance is a tort against land predicated on an indirect interference with the plaintiff’s property rights, that interference can take two quite different forms. The interference may be in the nature of “physical injury to land” or it may take the form of substantial interference with the plaintiff’s use or enjoyment of his or her land. The latter form of nuisance, sometimes described as “amenity nuisance” is not alleged here: see Street on Torts at p. 429 at p. 429; The Law of Nuisance in Canada at pp. 69-71; Conor Gearty, “The Place of Private Nuisance in a Modern Law of Torts” [1989] Cambridge L.J. 214….

The courts have taken a somewhat different approach to nuisance claims predicated on physical damage to property and those claims based on amenity or non-physical nuisance. Where amenity nuisance is alleged, the reasonableness of the interference with the plaintiff’s property is measured by balancing certain competing factors, including the nature of the interference and the character of the locale in which that interference occurred. Where nuisance is said to have produced physical damage to land, that damage is taken as an unreasonable interference, without the balancing of competing factors. [Emphasis added][^2]

[20] KJS disputes that dust from its parking lot caused actual physical damage. The only evidence of such damage was that some fixtures that TMS had manufactured were scratched when employees tried to wipe sand off them with a cloth. As the Court in Smith v. Inco Ltd. makes clear in the passages above, the damage that distinguishes “physical nuisance” from “amenity nuisance” is damage to land, not to personal property found on the land.

[21] TMS does not allege that the dust from KJS’ lot damaged its land. It is not a case like Smith v. Inco Ltd., where airborne nickel particles from the defendant’s factory became part of the soil on the plaintiff’s property, adversely affecting the value of the property because of public concerns over the potential health consequences of the particles being in the soil. I will therefore confine my analysis to the law pertaining to “amenity nuisance,” which the present case involves, based on what TMS asserts was a substantial interference with its use of its property.

[22] In Tock v. St. John’s Metropolitan Area Board,[^3] LaForest J., speaking for himself and Dickson C.J. in the Supreme Court of Canada, approved the following statement of the law of nuisance from Salmond on the Law of Torts: “nuisances are caused by an act or omission, whereby a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land.”[^4] Nuisance is a continuing cause of action, the Supreme Court held in Roberts v. City of Portage la Prairie[^5] in 1971.

[23] Nuisance does not require negligence by the defendant. In Royal Anne Hotel Co. Ltd. v. Village of Ashcroft Saito et al. v. Village of Ashcroft,[^6] McIntyre J.A., speaking for the B.C. Court of Appeal, cited Street on the Law of Torts for the principle that “The essence of the tort of nuisance is interference with the enjoyment of land.”[^7] McIntyre J.A. continued:

That interference need not be accompanied by negligence. In nuisance one is concerned with the invasion of the interest in the land, in negligence one must consider the nature of the conduct complained of. Nuisances result frequently from intentional acts undertaken for lawful purposes. The most carefully designed industrial plant operated with the greatest care may well be or cause a nuisance, if for example effluent, smoke, fumes or noise invade the right of enjoyment of neighbouring land owners to an unreasonable degree: see Lord Mayor, Aldermen & Citizens of City of Manchester v. Farnworth, [1930] A.C. 171, and Walker v. McKinnon Industries Ltd., 1949 105 (ON SC), [1949] 4 D.L.R. 739, [1949] O.R. 549 [affirmed 1950 285 (ON CA), [1950] 3 D.L.R. 159 [1950] O.W.N. 309; affirmed 1951 308 (UK JCPC), [1951] 3 D.L.R. 577, as examples….

In my opinion, the rationale for the law of nuisance in modern times, whatever its historical origins may have been, is the provision of a means of reconciling certain conflicting interest in connection with the use of land, even where the conflict does not result from negligent conduct. It protects against the unreasonable invasion of interest in land.[^8] [Emphasis added]

[24] LaForest J., in Tock, noted that the determination as to whether interference with land has been unreasonable involves reconciling conflicting uses of land. He stated:

The assessment whether a given interference should be characterized as a nuisance turns on the question, simple to state but difficult to resolve, whether in the circumstances it is reasonable to deny compensation to the aggrieved party. The courts have traditionally approached this problem of reconciling conflicting uses of land with an eye to a standard based, in large part, on… the formulations of Knight Bruce V.-C. in Walter v. Selfe … and Bramwell B. in Bamford v. Turnley …respectively. There it was observed that the very existence of organized society depended on a generous application of the principle of “give and take, live and let live”. It was therefore appropriate to interpret as actionable nuisances only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes. In effect, the law would only intervene to shield persons from interferences to their enjoyment of property that were unreasonable in light of all the circumstances.[^9]… Among the criteria employed by the courts in delimiting the ambit of the tort of nuisance are considerations based on the severity of the harm, the character of the neighbourhood, the utility of the defendant’s conduct, and the question whether the plaintiff displayed abnormal sensitivity. [Citations omitted]

[25] LaForest J. further noted that where there has been actual physical damage to property, the courts have readily concluded that the interference constitutes a substantial and unreasonable interference with the enjoyment of the property, reasoning that living in society demands tolerance of discomfort, but not of damage to property. He stated:

Where “material damage” is concerned, it is clear that the criteria adverted to above are to be applied with great circumspection; see Russell Transport Ltd. v. Ontario Malleable Iron Co., 1952 117 (ON SC), [1952] 4 D.L.R. 719, at pp. 729-30 per McRuer C.J.H.C. In the presence of actual physical damage to property, the courts have been quick to conclude that the interference does indeed constitute a substantial and unreasonable interference with the enjoyment of property. As put by Westbury L.C. in St. Helen’s Smelting Co. v. Tipping (1865), 11 H.L.C. 642, at p. 650-51:

…the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of property.[^10]

(ii) The legal test for amenity nuisance

[26] The Court of Appeal for Ontario, in Antrim Truck Centre Ltd., stated that the test for nuisance involves a two-part analysis to determine whether the interference was (a) substantial; and (b) unreasonable. After quoting the definition of nuisance, Epstein J.A. stated:

As can be seen from this definition, the test for nuisance, at its core, commands a two-part analysis. Fleming (The Law of Torts, 9^th ed. (Sydney: The Law Book Company, 1998) puts it simply at p. 466: “[T]o constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable” (emphasis added): see also St. Lawrence Cement v. Barrette, at para. 77. Murphy, at p. 420, explains that these elements of the test should not be viewed as mutually exclusive and that an interference that is unreasonable will also often necessarily be substantial….

The requirement that the interference be substantial is a threshold aspect of the test. At this stage of the analysis, the court will exclude claims that disclose no actual interference as well as those in which the interference alleged is so trifling as to amount to no interference at all [Fleming, at p. 466. Other citations omitted]. [Emphasis added]

(iii) Factors to be considered

[27] Whether there has been an unreasonable interference with the use and enjoyment of the plaintiff’s land is a judgment to be based on all of the circumstances. The focus is on the gravity of the harm caused and the utility of the defendant’s conduct. As the Divisional Court noted, the court makes this assessment with reference to four factors:

The severity of the interference;
The character of the neighbourhood;
The utility of the defendant’s conduct; and
The sensitivity of the plaintiff.[^11]

[28] With regard to the severity of the interference, Epstein J. stated:

The severity of the interference element of the reasonableness analysis again considers the significance of the harm caused by the interference in question. At this stage, however, the purpose of the inquiry is not to determine whether the interference alleged is of a sort that warrants the recognition of the courts (the threshold test), but rather whether the interference is sufficiently severe that, when viewed alongside the other elements of the reasonableness analysis, the plaintiff should not be expected to tolerate it in the circumstances… In assessing the severity of the interference, alongside the impact of the harm, John Murphy, Street on Torts, 12^th ed. (Oxford: Oxford Press, 2007), at pp. 432-434, also directs a consideration of the duration and nature of the interference.[^12] [Emphasis added]

[29] With regard to the character of the neighbourhood, Epstein J. states:

Consideration of the second factor, the character of the neighbourhood, recognizes that what is reasonable must be viewed with reference to whether the interference takes place and what is typical of that location: see Murphy at pp. 428-429.[^13] (Other citations omitted). [Emphasis added]

[30] With regard to the plaintiff’s sensitivity, Epstein J. states:

Finally, where the interference is the product of the plaintiff’s “abnormal sensitivity”, there will be no actionable nuisance. A property owner cannot expose a neighbour to greater liability by adopting an unusual and especially sensitive use of his or her land: Murphy, at p. 428. The simple fact that a plaintiff is abnormally sensitive is not sufficient, however, to bar a claim in nuisance, as the claim may nevertheless succeed if the interference would have amounted to an actionable claim were the plaintiff a person with ordinary sensitivities: Linden & Fedthusen, at p. 588; Fleming, at p. 470; Pinewood Recording Studios Ltd. v. City Tower Development (1996), 31 C.L.R. (2d) 1 (B.C.S.C.), at para. 126.[^14] [Emphasis added]

[31] The Court in Antrim considered the conflicting jurisprudence and concluded that the nuisance analysis requires a balancing of the competing interests of the parties in the use of their respective properties. Epstein J. stated, in this regard:

It is clear that the preponderance of authority supports the conclusion that in determining whether a claimant has successfully made out a case in nuisance based on interference with the use or enjoyment of the affected property, the court must balance the competing interests of the parties involved. As indicated in Mandrake Management, at para. 47, this balancing is carried out through a consideration of the four factors taken into account in the reasonableness analysis.[^15] [Emphasis added]

(iv) Whether wind-blown dust can constitute a nuisance

[32] Wind-blown dust can, in some circumstances, amount to an actionable nuisance. In Walker v. McKinnon Industries Limited, The High Court allowed a claim for nuisance against the defendant who was operating a steel and iron foundry and forge shop, based on ash that it emitted, which settled on the plaintiff’s commercial flower garden, 400 feet away. McRuer J. stated:

The plaintiff’s claim may be considered in four aspects – (1) gaseous fumes accompanied by soot, fly ash and iron oxide are driven off in the operation of the cupolas and … drift across the plaintiff’s property when the wind is in a southwesterly direction and settle on the glass of his greenhouses, forming a tenacious coating interfering with the passage of light rays through the glass with a detrimental effect on the growth and development of the plants; (2) the combination of fumes and organic substances causes a similar coating to form on the foliage of the plants, affecting their growth and saleability; (3) the fumes contain sulphur dioxide … in such quantities that the growth of the plants is affected…; (4) the operation of the … 5,000-pound hammer in the forge-shop, causes such vibrations as to affect detrimentally the growth of orchids in which the plaintiff has specialized for many years and has to some extent caused cracking of glass, and injury to the plaster in a house situated on the plaintiff’s property. Any one of these complaints, if established in evidence, would be sufficient ground for relief, providing material injury to the plaintiff’s property has been shown.[^16] [Emphasis added]

[33] McRuer J. found that it was no defence that others were also polluting the air over the plaintiff’s property. He stated:

Some evidence was adduced to show that others are polluting the air over the plaintiff’s property….that is no defence, if the defendant contributes to the pollution, so that the plaintiff is materially injured. It is no defence even if the act of the defendant would not amount to a nuisance were it not for others, acting independently of it, doing the same thing at the same time: Salmond on Torts, 10^th ed. 1945, p. 229, citing Lambton v. Mellish; Lambton v. Cox, [1894) 3 Ch. 163, and Sadler v. the Great Western Railway Company, [1896] A.C. 450; see also Thorpe v. Brumfitt (1873), L.R. 8 Ch. 650, per Sir W.M. James L.J. at p. 656. Any further discussion of this aspect of the case is unnecessary in view of the fact that the defendant created a new condition in the area after 1937 by the erection of the cupolas and the reconstruction of the foundry and forge-shop, with the result that the fumes from these respectively had a combined effect not formerly present.[^17] [Emphasis added]

[34] The Appellate Division of the Supreme Court of the State of New York, Third Department, reached a similar result in Waters v. McNearney,[^18] in 1959, where the Court found that large quantities of sand laid bare by the defendant’s changes to the contour of its land during construction of a golf course and blown by the wind, amounted to an actionable nuisance.

b) TMS’s Evidence

(i) Paul Endlicher’s testimony

[35] Paul Endlicher worked for one of TMS’s customers from 2000 until February 2008, when TMS hired him to be its National Sales Manager, responsible for sales in Canada and the United States. He testified that TMS has been producing lighting products since 1923. It began as a tool and dye maker and later acquired a company that manufactured downward-shining lighting fixtures. Twelve years ago, it developed the metal working skills necessary to produce large commercial lighting fixtures, and in December 2002, it moved to its present location. Since then, it has produced 100,000 stainless steel fixtures and has attracted a prestigious clientele including Trump Towers in Toronto, and one of the larger hotels in Dubai.

[36] Mr. Endlicher explained that the commercial lighting market is more competitive than the retail lighting market. TMS’s competitive advantage in the commercial lighting market lies in the quality of its fixtures’ surfaces, which must meet rigid specifications, and in its ability to deliver its products faster than its competition.

[37] TMS does 95% of its manufacturing, as well as all of its assembling and packing, at the TMS property. Some chrome plating, metal finishing, and acrylic work is done elsewhere. The building is 16,000 by 18,000 square feet, with multiple bay doors in back and a multiple tier mezzanine. The front portion comprises offices for its engineering, design, marketing, and sales departments. The back contains its manufacturing operation.

[38] TMS derives a third of its revenue from custom-made lighting fixtures, for which it charges between $200.00 and $30,000.00 each. It does not keep any stock in inventory, and negotiates the price and delivery time for each item before receiving the customer’s order. It has no control over the number of fixtures a customer requires and does not ship items “from the shelf.” It designs a fixture from a sketch, photograph, or engineering drawings, builds the prototype in the factory from scratch, and sends it to its lab in the building for testing for heat and durability. Its sales department then determines its price, based on production cost, market price, and the customer’s budget. It ships the product four to eight weeks after it has received the order.

[39] TMS must find efficiencies in the manufacturing process in order to make a profit while still meeting the customer’s budget and specifications, including delivery time. If it delivers lighting fixtures too late for a building under construction, its customer may already have taken down its scaffolding and may no longer be able to install the lights itself. The customer gives a “drop dead date,” and it is up to TMS to deliver its product on time, in a condition the customer finds acceptable.

[40] TMS derives the remaining two thirds of its revenue from the sale of forty standard fixtures, with thirty permutations of each. Most of those fixtures are shipped within two to four weeks. Some of the orders are placed when another supplier fails to deliver within the time specified by the customer. In these cases, TMS charges a premium for a quick turnaround, which requires it to manufacture, assemble, pack, and ship the product within five days or less. In such cases, TMS must overcome any delays, even if it means working through a weekend. It depends heavily on repeat business, and if it fails to deliver on time, with the quality the customer expects, there is no new order.

[41] TMS employs thirty to forty employees, three quarters of whom work in its manufacturing operation at the back of its building. In order to minimize delays, it does most of its manufacturing in-house, including some acrylic and fabric work. It uses various metals and finishes, including polished finishes, which are mirror or chrome. It produces “wet painted finishes” in its factory and out-sources chrome plating and brush finishing, which must withstand close inspection. It also out-sources powder coating, which entails the magnetic application of paint, on 75% to 80% of its fixtures. The fixtures it supplied for the Trump Tower were five feet in diameter, with a mirror-polish surface finish. When it produces such custom-made products, for which it charges a premium, it must avoid any perceptible imperfection.

[42] Mr. Endlicher described the neighbourhood around the TMS property as a “showcase industrial neighbourhood.” There are a variety of businesses nearby, including warehouses, such as the Zellers distribution centre, directly across the street, and Cooktek, down the street, which operates a refrigerating warehouse for perishable goods, and some manufacturers, including a metal fabricator of high-end products down the street, and some moulding operations nearby. Mr. Endlicher states that he has seen no unpaved parking lots among the surrounding 100 to 150 properties when he has driven through the neighbourhood.

[43] Mr. Endlicher states that in 2000, when he first visited the TMS property as a customer, KJS did not own the adjacent property. At that time, he drove a sports car, which he kept clean and polished. After KJS moved in, there was as much dust on his car after an hour as he normally found on it after three or four days. The dust was worse the further toward the back of the TMS property (and toward the KJS property) he parked. He also owns a truck, which he says he could not leave open at the TMS property after KJS moved in because the dust was so bad.

[44] Mr. Endlicher could readily see that the dust was from the KJS property, especially when trucks were entering or leaving, or the wind was blowing. He never saw similar dust from any other property in the area. He personally observed the trucks, with the name KJS Trucking on them, as they entered or left the KJS parking lot every ten or fifteen minutes, picking up the dust in the lot. He has never not seen trucks there since KJS moved in. There are usually fifteen to twenty-five trucks parked on the KJS parking lot.

[45] Typically, Mr. Endlicher observed dust and sand blowing from April or May to September or October each year, whenever he parked at the TMS property. After even a half hour, he found dust and sand on the car, which he had to clean off. It was different from dust inside a house, he said, which does not scratch when it is wiped off. It was a silica-based dust, which caused scratches when it was wiped off. He identified two photographs, taken on June 15, 2009, and May 11, 2011, respectively, which show dust on cars parked in the TMS parking lot.

[46] Mr. Endlicher states before KJS paved its parking lot in June 2011, whether there was crushed stone on it or not, the trucks raised dust, which had no place to go but into the air. The dust interfered with TMS’s manufacturing operation, he says, because its work is time sensitive, and its employees worked continuously with fixtures in various stages of production. Whenever dust settled on components, employees had to remove them from the assembly line and re-touch them, and every time this occurred, it changed the order in which things had to be done.

[47] Mr. Endlicher explained that most of the assembling of lighting fixtures was done within twenty or thirty yards from the rear doors of the factory. The fixtures were moved five or ten times before they were packed. While they were not stored for long, they were bound to be affected because there was dust everywhere, on the floor and on the counters.

[48] If the dust or sand could be blown off the fixtures, that was done, but they sometimes had to be taken down as many as three or four times to be cleaned off, using an air gun with compressed air, and then returned. He had not personally observed any fixtures that had actually been damaged by sand, but he had seen many being taken down and cleaned.

[49] The way the fixtures were packed depended on the fixtures. Normally, five or ten were packed separately in individual cardboard boxes. They were cleaned, inspected, and wrapped in bubble wrap or protective paper. If there was dust on anything that came into contact with them, including gloves, table top or bubble wrap, it caused problems.

[50] Mr. Endlicher saw dust blow through the bay doors at the back of the factory and believes that the windows and other doors were also entry points. The doors were normally opened when it got warm outside, in order to maintain a reasonable temperature for the employees. If the doors and windows were closed, the temperature in the building rose significantly within a half hour.

[51] Mr. Endlicher states that the office area is air-conditioned but the factory is not. When doors and windows were closed due to the dust and sand, it became so hot that he would not want to work there. It was especially hot on the second floor. He estimated that the temperature there would reach well in excess of 90 degrees Fahrenheit.

[52] Mr. Endlicher has no record of what temperature was reached when TMS closed its doors and windows to prevent dust from entering, or whether TMS’s employees made written complaints about the heat. He states, however, that there were occasions when TMS had to close the plant completely, because of the heat.

[53] Mr. Endlicher states that from 2007 to 2011, blowing dust and sand were a daily problem, except during the winter months and rainy season. The problem was reduced significantly at the end of June 2011, when KJS paved its parking lot, and is much better now. He still observes many trucks enter and leave the KJS lot and, on occasion, sees them create dust, but the problem has been 90% reduced.

(ii) Suki Bahra’s testimony

[54] Mr. Bahra is the vice-president of TMS. He is in charge of manufacturing and production and supervises all the employees in the factory at the back of the building. He has been in the business for about fourteen years.

[55] Mr. Bahra explains that he and his brother, David Bahra, bought TMS in 1999 and operate it as a family business. It has grown from five employees to thirty-five. It manufactures lighting fixtures for hotels, restaurants, and other commercial establishments. It does custom manufacturing, including metal spinning, bending, and finishing.

[56] Mr. Bahra and his brother looked at other areas in Brampton before choosing the Sommerlea property. The reason they chose this location was that it was in a prestigious area, occupied mainly by professionals, such as architects and engineers. It was also a clean environment for their manufacturing operation.

[57] When Bahra Holdings bought the property, the land now occupied by KJS was owned by a heat treating facility, which did not use the area where KJS’s parking lot is now located. Mr. Bahra produced several photographs, including one taken on May 22, 2008 (number 166), which shows a berm or slight hill at the back. Mr. Bahra stated that there was never any dirt from the grass and weeds on the hill, and no problem with dust.

[58] When KJS bought the property in 2007, they undertook construction at the back. In six months, the dust began to blow north onto the TMS property. In September 2007, when KJS landscaped its driveway, there was a significant increase in the amount of dust.

[59] On a typical day, Mr. Bahra arrived at the TMS factory at 6:30 a.m. The employees arrived at 7:00 a.m. At a production meeting at 9:00 a.m., they discussed orders and Mr. Bahra would help them look after any issues that arose. His production team came to him with concerns about delays caused when dust settled on fixtures, when they had to remove the fixtures from the assembly line for stripping and re-finishing.

[60] TMS’s quality control department normally removed completed fixtures and put them on a shelf for other employees to pack them. The four bay doors on the east side of the TMS building were left open most of the time from April to October or November to prevent the temperature from becoming too hot inside for the employees. When the dust from the KJS lot entered through the doors, it scratched fixtures, which then had to be sent out for stripping and re-finishing, with an ensuing delay of 5 to 14 business days. When his production team raised the issue with him, he had to speak with TMS’s customer service department and ask them to inform the customer.

[61] As a result of the dust problem, TMS began to store its finished products in boxes instead of on the shelf, where the order-picker could easily pick them off. Instead of handling the finished fixtures once, the employees would have to handle them three or four times. On a normal size order, they would lose six to eight labour hours among the 35 employees, from 7:00 a.m. to 4:30 p.m.

[62] The factory workers sometimes had to close three of the bay doors to keep dust from entering. The company then had to buy more cooling fans, water, and even send employees home to avoid heat exhaustion. The dust and sand remained a constant problem until KJS paved its lot in the late summer of 2011, which ended the problem.

[63] Mr. Bahra produced many photographs of the dust, taken by himself or his brother, David Bahra. The photographs, the most relevant of which are listed in Schedule “A” to these reasons, show the dust emanating from trucks entering, turning, or leaving the KJS parking lot from 2007 to 2011.

[64] Mr. Bahra also produced a video clip which David Bahra had taken on June 17, 2011, from the roof of the TMS factory. It showed a truck turning on the KJS parking lot and backing up to the KJS loading bay, raising dust that is blowing toward the TMS building. A second video clip, showing the truck backing up, also shows dust.

[65] Mr. Bahra also produced a photograph taken June 15, 2009, (no. 14), showing fixtures for a client in Vancouver, which had been placed in a box at the TMS factory, left open after inspection by the quality control department. The photograph showed speckling on the fixture, which Mr. Bahra stated was from gritty sand blown in from the KJS parking lot. This resulted, he said, in a three-week delay in delivery. The photograph shows the dust, not a scratch. A scratch would occur, he explained, if you used a cloth to wipe the dust off, which would interfere with the mirror finish.

[66] Mr. Bahra produced photographs taken on February 11, 2011, listed in Schedule “B”, which show the measures that TMS took to protect fixtures and their components from becoming contaminated by dust. These include parts packed in boxes on the floor for pre-finishing, to protect them from the dust, after quality control tested them; and finished powder-coated fixtures on the shelf during the winter, when dust was not present, and placed in clear cellophane wrapping and packed in a clear plastic bag during the summer, when dust was present.

[67] Mr. Bahra produced other photographs, some of which are listed in Schedule “C”, showing the extra maintenance TMS undertook to control the dust that had entered its factory. These included photographs of employees outside the factory with brooms and dust blowers, collecting dust and disposing of it, and a dumpster used to dispose of the dust.

(iii) Ravi Toor’s testimony

[68] Mr. Toor has been an employee of TMS since 2003. He worked exclusively at the TMS property. Currently Vice President of Operations, he is an engineer, with responsibilities for customer service, and some aspects of production.

[69] Mr. Toor’s best recollection was that KJS had moved into the property next door in mid-2006. Before that time, the area that is now a parking lot was a grass-covered hill that produced no dust problem. KJS removed the hill and created a parking lot. Afterward, Mr. Toor observed that trucks coming onto the lot disturbed the dirt and sand. He first noticed mud being tracked onto the roadway and then, during the spring and summer of 2007, when the weather became drier, blowing dust and sand. Sometimes, it blew in TMS’s direction, sometimes not, depending on the wind direction.

[70] Mr. Toor stated that the dust blew through the doors and into the TMS factory where it settled on equipment and fixtures. He observed employees cleaning the fixtures for product orders. When he asked why they were doing this, they explained that the dust needed to be cleaned off. He himself observed dust on the fixtures. It was a “normal thing,” he said, during the summer, when trucks went in and out of the KJS property.

[71] Mr. Toor stated that TMS began moving the fixtures to areas where there was less dust, and covering them with paper. They also made changes to the area where fixtures were painted.

[72] Mr. Toor never sat down and calculated the loss of productivity that resulted from the dust. There were general conversations in which he asked employees what they were doing, or why products weren’t being shipped, and was told that they had to be re-packed because of the dust. There were dust issues on a daily basis, unless it rained for three or four days. During the winter, the doors and windows were closed and there was no problem with the dust.

[73] Mr. Toor stated that he was present many times when the windows and doors had to be closed because of the dust. He closed them himself a couple of times. The back of the plant was not air conditioned, so when they closed the doors and windows, it became hotter, the temperature inside reaching 30 or 35 degrees Celsius. The heat was especially uncomfortable for employees doing painting, finishing, packing, and shipping. He remembers receiving complaints about the heat on at least four occasions, and management distributing water and popsicles to the employees.

[74] Mr. Toor stated that on two occasions, he spoke to the people at KJS about the dust and the trucks driving over the curb stones on the TMS driveway. The discussions took place outside the KJS facility. One, he thought, took place around June 2007, with Kulwant Singh. The other was with another gentleman.

[75] The discussion Mr. Toor had with Mr. Singh was mainly about the trespass issue. Mr. Singh was outside and Mr. Toor told him that the KJS trucks were trespassing and striking the curb stones that TMS had installed on its driveway. Mr. Singh told him that it would be taken care of. There was some discussion of a plan to put three or four foot high steel tubes, as parking barriers, to stop cars and trucks.

[76] The other conversation occurred when an argument developed outside between TMS employees and KJS employees. The first time they complained about the dust, KJS said that something would be done about it. Later, they said that the dust was not from their property.

[77] Mr. Toor states that the dust problem continued until mid to late summer of 2011, when KJS finished paving its lot. After the paving was completed, the dust completely subsided. There has been no dust problem since then, and the morale of the employees in the TMS factory has improved significantly.

(iv) Mark Wilson’s Testimony

[78] Mr. Wilson has been employed by TMS since September 2010. He is a product assembler. He takes components that have been formed, painted, and polished, and assembles the final fixture, including the wiring inside. He works full time, Monday to Friday, from 7 a.m. to 4:30 p.m.

[79] Mr. Wilson stated that there was no problem with dust or sand when he began his employment in September 2010, because the temperature was dropping by then. The following spring, when temperatures rose, and TMS opened its doors and windows, dust entered the building at least four or five times a day, every day, during the spring and summer.

[80] The dust came from the trucking business next door, whenever trucks came in or went out. Mr. Wilson observed it. If the wind was blowing from the north (where the TMS factory was) to the south (where the KJS property was), the dust was not a problem. When it blew to the north, it entered the TMS factory and settled on the parts that Mr. Wilson and his colleagues were assembling. When he was in TMS’s parking lot, the sand got on his hands, eyes, and mouth. During the summer, he said, when he went out to have lunch, it was not a pleasant experience.

[81] When dust got on the components Mr. Wilson was assembling, or on the completed fixtures, he had to clean them off with an air blower, as using a cloth would scratch their finishes. There were a couple of times, he says, when fixtures were scratched in the attempt to clean the sand off them. The employees later wrapped the products to avoid getting dust or sand on them.

(v) Harold Rambaj’s testimony

[82] Mr. Rambaj has worked for TMS for eight years. He is the Supervisor of the Packaging and Shipping Departments. His duties are to fill orders from customers and get them shipped to them. His department packs and ships all of the fixtures that customers order.

[83] Mr. Rambaj was at TMS throughout the period from 2007 to 2011. He said that when KJS trucks entered their parking lot, they raised a lot of dust. In the summer, when TMS had to open their doors, dust came in and settled on fixtures that had to be packed. TMS then had to close its doors, and it then became so hot that they could not perform their work normally and had to slow down or stop. He supervised three employees and observed them slow down when it got too hot in the factory.

[84] Sometimes, Mr. Rambaj said, they had to clean the dust off the fixtures, using compressed air. They could not wipe them off because this would scratch them. Sometimes, the cleaning took one to two hours a day.

[85] Mr. Rambaj states that they experienced some actual damage to fixtures, when sand that settled on the glossy black, red, and green finishes showed up and the fixtures had to be re-painted. When this occurred, it required an hour or an hour and a half most days, and two hours some days.

[86] Mr. Rambaj assembled the wires, or drop cords, which were not affected by the dust. He worked close to the doors, and sometimes went and looked outside. He saw that dust was coming from the transport trucks at the KJS property. He saw the dust, when the doors were open, and saw where it was coming from.

[87] Mr. Rambaj states that the dust was not a problem before KJS moved in. They also have had little dust since KJS paved its parking lot, and not nearly as much as before.

(vi) David Bahra’s testimony

[88] David Bahra is president and CEO, as well as director and shareholder, of TMS. He is also president and CEO of Bahra Holdings. He and his brother bought the company ten years ago, in 2001, when it was Toronto Metal Spinning and Lighting, creating lampshades, and made it high tech, creating designs from their computers. They turned it into an international operation, manufacturing architectural lighting for hotels and schools all over the world.

[89] TMS has operated from 247A Sommerlea Road since 2002. Before that, they were on the other side of Airport Road in Brampton, operating from two condominium units. They needed more square footage, so they decided to buy a free standing building with more space under one roof and plenty of parking. Location was a factor for them. They were looking for a prestige neighbourhood because they had designers coming from all over the world and needed a presentable location. They found their present location in an upscale area, with neighbours such as the Hudson’s Bay warehouse, Edward Hope, and Zellers, across the street. It was very presentable.

[90] The property at 247A Sommerlea Road consists of a 16,000 square feet factory with shipping doors at the back, on one acre of land. There is parking on the north side, and a driveway to the south, with entrances on the north and south. The interior consists of 10% office area, and the remainder for a warehouse and manufacturing. They renovated the space and painted the walls to make it very clean. They segregated areas for painting, in front, and a 40 by 40 foot welding room in an area where the air would not mix with the air in the rest of the building.

[91] The building houses Bahr Enterprises, Bahr Sales, and Barhr Holdings. Bahr Enterprises manufactures milling machines, lathes, and welding machines. TMS uses two thirds of the space. When they bought the property, they had two full time employees and one who worked half-time. They now have thirty to fifty at any one time, of whom twenty to twenty-five, depending on the season, work in manufacturing.

[92] TMS manufactures products for prestige locations, including courthouses, the Trump Towers in Toronto, hotels in Las Vegas, and schools in Florida, Dubai, and elsewhere. They present themselves as a high-end manufacturer of architectural lighting fixtures. They produce fixtures that are readily visible at their customers’ locations.

[93] TMS’ customers arrange for their designers to visit the TMS offices. They start with a paper sketch, from which TMS’ designers develop detailed plans. The components are then manufactured, laser-stamped, plated or finished, and assembled. The entire operation, other than plating or finishing, takes place at the TMS factory.

[94] The zoning in the neighbourhood is industrial. TMS’ neighbours include Zellers’ distribution warehouse, Edward Hope, a manufacturer’s agent for tools and tool parts, and Hepburn, which manufactures adhesives and glue. When looking at the neighbourhood, they saw that it was well maintained, with lawns cut, and ample parking.

[95] When they bought the property, they observed that the adjacent property, at 247 Sommerlea Road, housed a metallurgy business with seven employees. The two parcels were once one but the property was too large and had to be divided. The owner was unable to change the address, so the two properties became 247 and 247A Sommerlea Road. When TMS bought their parcel, the other property was an unused lot, with long grass and weeds.

[96] From the outset, when TMS bought its property, until KJS moved in next door, there was no issue with sand or dust. KJS bought the parcel next door in the summer of 2006 and moved in the late summer. By the time they levelled the back lot and put gravel in, it was fall. TMS waited for them to settle in and thought that the lot would soon be paved. In the spring of 2007, however, once the gravel had settled, they noticed that whenever a truck came in or went out, it created a lot of dust. The dust began in 2007 and continued until the lot was paved in late June 2011.

[97] Mr. Bahra estimated that sixty trucks drove in and out of the KJS property every day, entering and exiting over an unpaved surface. The dust they raised was picked up by the wind and carried to the TMS property. If it rained, it was not a problem but when the KJS lot dried, the dust returned.

[98] Mr. Bahra explained that any industrial building uses air from the outside. TMS runs a “negative flow” building, in which air is sucked in by its ventilation system. Sand or dust that is outside the building is sucked in, and dust entering from the back of the building migrates to the front. They have industrial fans in every bay, thirty in total, but the dust enters and settles on everything.

[99] During the summer, TMS kept the doors and six to eight windows that were on each side of the building open, which provided plenty of ventilation through the building. Mr. Bahra himself works in the plant and knows from personal experience that the windows are important for ventilation.

[100] Assembly is a critical factor when customers are paying $500 to $1,000.00 per fixture and a scratch is a big issue. TMS goes to great lengths to keep its customers happy. Dust and sand were a constant problem during the summer months, beginning in 2007, and continued until the summer of 2011. It began as soon as the snow melted. Some years were better than others, but the dust was always a problem. If they closed the windows and doors, the heat became unbearable.

[101] TMS had a building evaluation done for the action. KJS then prepared its own report, which suggested an air conditioning system as a solution. TMS obtained a quote for an air conditioning system that would allow them to keep the doors and windows closed. The quote, which was entered into evidence, provided for an installation cost of $61,000.00, and $2,000.00 to 2,500.00 per month to operate. TMS concluded that it was too high an operating cost to incur in a competitive market like theirs, where most manufacturers do not have air conditioned buildings. Also, they worried that air conditioning would interfere with the laser technology they use in their manufacturing process.

[102] On about two occasions, once in the summer of 2007, and once in 2009, KJS applied a ¾ inch mixture of gravel and ground asphalt tar, made from re-cycled pieces of old road surface, to its parking lot. This reduced the dust by 25 to 35% for about a month each time, but when the trucks crushed the surface material, the dust returned.

[103] A six foot high fence was also installed, which reduced the dust a little, but the fence had holes and slots in it, through which the dust and sand still entered. It wasn’t until late June 2011, when KJS finished paving its parking lot, that the dust problem ended.

[104] Mr. Bahra admits that when KJS applied for a minor variance of its zoning to allow it to repair its vehicles on its property, TMS and at least one other neighbour opposed the application. The City nevertheless allowed the application for a three year period, and the Ontario Municipal Board dismissed an appeal brought by TMS. TMS believed that if KJS did repairs outside its building, he said, it would worsen the traffic on its lot, and increase the trespasses of its trucks onto TMS’s driveway.

(vii) Admissions concerning by-law infraction

[105] KJS made the following admissions concerning its violation of the City of Brampton zoning by-law:

(a) KJS’s use of its property was regulated, at all material times, by section 30.2 of City of Brampton By-law 270-2004, which zoned both the TMS and KJS properties. The by-law prohibited “obnoxious industrial uses”, which include operations that create a nuisance by the creation or emission of dust.

(b) The maintenance of both the TMS and KJS properties was regulated by City of Brampton Minimum Maintenance By-law 104-96. Section 5 of the by-law required the property owner to ensure that its property was maintained in accordance with sections 6 and 7. Section 6 required the owner to obey an Order made pursuant to the by-law. Sub-section 7(7) provided that no vehicle was to be parked in the front, rear, or side yard, except on a paved or appropriately finished surface. Section 7(10) provided that all areas used for vehicular traffic, parking, and facilities for loading and unloading, including loading spaces or bays, were to be kept free from direct, surface dust.

(c) On June 25, 2007, Ralph Fenwick, a Property Standards Officer for the City of Brampton, signed an Order to Comply directing the numbered company to remedy a number of deficiencies that he had observed during an inspection of the KJS property, including airborne dust, contrary to section 7(10)(a) of Minimum Maintenance By-law 104-96. The repairs listed in the Order as necessary to remedy the dust on the parking lot included painting the lot or treating it to control dust, as required by section 7(10)(a) of the by-law.

(d) On September 6, 2007, the Ontario Court of Justice issued a summons requiring the numbered company to appear before it to answer a charge pursuant to section 36(1)(b) of the Building Code Act for failing to comply with the Order dated June 25, 2007, issued pursuant to By-law 104-96. The company pleaded guilty to the charge in June 2009, and a fine of $2,000.00 was imposed, which the company paid.

c) KJS’s Evidence

(i) Pardeep Singh’s testimony

[106] Pardeep Singh is the owner of GAPP Express Inc., a freight forwarding business. He is not related to the defendant Kulwant Singh, and has no ownership interest in the numbered company or KJS.

[107] In September 2006, Mr. Singh became a tenant of KJS, paying a monthly rent of $7,000.00. He operated his business from the KJS property until June 2011. He was there full time, Monday to Friday, from morning to evening.

[108] Mr. Singh met with David Bahra in November 2006, before the Ontario Municipal Board heard TMS’s appeal from the City’s decision allowing KJS’s application for a minor variance to permit it to repair its vehicles on KJS’s property. He wanted to explain what his business entailed, that it was a transport business, not an auto body business, and what its daily activities were. Pardeep Singh, Kulwant Singh, and their realtor, together with the previous owner of their property, met with Mr. Bahra and another manager from TMS in the TMS boardroom for 20 minutes to a half hour. They explained that they transported goods to the KJS warehouse for distribution, and wanted only to repair their own trucks on the property. Pardeep and Kulwant Singh said that they would be spending 80% of their time loading and unloading goods from trucks to their warehouse.

[109] Mr. Bahra said that, based on his experience at their previous location, people from India used truck repair businesses to operate tire businesses, which made “quite a mess.” He also believed that KJS would be repairing trucks other than their own. Pardeep Singh stated that at the meeting, Mr. Bahra did not complain about the dust or trespasses, or damage to his curb stones.

[110] Mr. Singh stated that from 2006 to 2011, he sometimes observed TMS’ own trucks going over its curb stones when they entered the property. He observed this about ten times over the five year period. He agreed that most of the trucks entering TMS’ property were small trade trucks, but stated that there were also 53 foot trailer trucks. He noted that his freight forwarding business also had two small trade trucks.

[111] Mr. Singh explained that in his freight forwarding business, a customer would call and Mr. Singh would find someone to transport the customer’s goods. He sometimes used KJS trucks and sometimes trucks belonging to others. KJS was a supplier/vendor of transport services to Mr. Singh, not a customer. Mr. Singh paid KJS $5,000.00 to $10,000.00 per month for their services.

[112] Mr. Singh stated that he did not own his own trucks and the only repairs he performed at the KJS property were of KJS’ trucks (which he referred to as “our trucks”).

[113] Mr. Singh stated that he did not see any dust from KJS trucks over the five years that he rented space at the KJS property. He did a lot of warehousing at the facility and saw no dust. However, he worked mainly in the office and warehouse, so he was usually indoors.

(ii) Kulwant Singh’s testimony

[114] Kulwant Singh is an officer and director of both KJS and the numbered company, which owns the property at 247 Sommerlea Road. KJS operates its transportation and warehousing business from that property. It employs seven people in its office.

[115] The numbered company bought the KJS property on August 31, 2006. Its trucking business was permitted by the zoning by-law. KJS took occupation of the property in mid-September 2006. The property consisted of dirt and grass, which KJS removed. They levelled the ground and graded it, which took a couple of months. They could not lay gravel on the surface at the time, because it took six months to a year for the earth to harden.

[116] Mr. Singh stated that during its first year on the property, KJS did not receive any complaints from Mr. Bahra or anyone else about the dust. Mr. Singh described the meeting that he and Pardeep Singh attended in November 2006. The previous owner and his realtor arranged the meeting, which they attended with Kuldeep and Pardeep Singh, Mr. Bahra, and another person from TMS. KJS had obtained a minor variance from the City’s Committee of Adjustments, which TMS had opposed. When TMS appealed to the Ontario Municipal Board, KJS met with their representatives to see if they could fix the problem. The meeting lasted about a half hour.

[117] At the meeting, Pardeep and Kulwant Singh described their transportation and warehousing business to Mr. Bahra, explaining that the variance they had obtained was only to allow them to repair their own vehicles. Mr. Bahra stated that he had had an experience at his previous location with people from India who had operated a tire business as part of an auto repair business. Mr. Bahra did not make any complaint at the meeting about dust or trespasses, or trucks damaging TMS’ curb stones.

[118] Mr. Singh admits that he received the City’s Order to Comply on about June 25, 2007. It took KJS two or three weeks to clean up the garbage and debris from the KJS property. There were also ruts and an uneven lot surface which had filled with water, which had to be repaired.

[119] Mr. Singh stated that before he received the Order to Comply, neither Mr. Bahra nor TMS had spoken with him or written to him about the dust. He admitted that even after receiving Mr. Fenwick’s Order, which required KJS to comply within 21 days, KJS did not finish paving its lot until three years later, at the end of June 2011. Mr. Singh stated that KJS was unable to afford doing the paving in 2007. It had spent what money it had on levelling the hill. When it asked All Weather Services how much it would charge to pave the lot at that time, it said that it wanted $150,000.00.

[120] Mr. Singh stated that the first time he learned that the dust was a problem for TMS was in 2008, when he received TMS’s Statement of Claim. He stated that KJS first erected a ten foot fence to try to control the dust. He agreed that the fence was a condition for obtaining site plan approval from the City. He produced Invoices #87 and #88 dated September 4, 2008, for $2,100.00 and $6,650.00, respectively; and Invoice #106 dated September 16, 2008, from Creative Creations, for $7,726.26, for the erection of the fence on the north side of the KJS property, from the middle to the rear of the property.

[121] Mr. Singh admitted that he knew, at least in 2008, when he received TMS’ Statement of Claim, that the dust bothered TMS. He acknowledged that the dust was a significant problem from the time KJS moved in until June 2011, when it finished paving its lot, but said that KJS could not afford to pave the lot any earlier.

[122] Mr. Singh stated that there was a property at 1 Imperial Court, immediately to the east of the KJS and TMS properties, that consisted of two acres of heavy dirt. He tendered photographs of that property (Exhibit 7), which he said he had taken the previous week. KJS later argued that this property was another potential source of the dust that blew onto TMS’ property.

[123] Mr. Singh admitted that the City charged KJS with breaching its by-law from November 14, 2007 to June 10, 2009. KJS instructed its lawyer to attend court on its behalf, and Mr. Singh’s brother entered a plea of guilty on behalf of the company, and paid the fine.

[124] KJS laid gravel and granular asphalt in 2009 to control the dust. Mr. Singh tendered the following invoices into evidence:

(a) Invoice #0050 dated June 12, 2009, from All Weather Services Ltd., for $61,520.73, including $1,890.00 for removing seven loads of dirt, and $24,642.00 for laying ¾ inch stone onto the rear parking lot and two pipelines in the back;

(b) Invoice #0059 dated June 17, 2009, from All Weather Services Ltd., for $603.00 for 25 concrete blocks, 4 x 4 x 2 feet. Mr. Singh stated that these were for the south and east sides of the property.

[125] Mr. Singh stated that, in addition to the $21,000.00 KJS spent to erect the ten foot fence, and the $24,642.00 it spent for stone and gravel in 2009, it spent a further $10,000.00 on asphalt re-grounding. He did not produce a receipt for that expense, which he says KJS paid in cash instalments of $350.00 or $400.00, for three or four truck loads at a time. Other than the paving in 2011, then, KJS paid a total of $56,000.00.

[126] Mr. Singh stated that when All Weather Services delivered their gravel in June 2009, it advised KJS that it should wait a year until the gravel settled before installing the asphalt. He acknowledges that he did not contact Mr. Fenwick to tell him that, but stated that he was not instructed to keep Mr. Fenwick informed of the steps KJS was taking to remedy the problem.

[127] Mr. Singh stated that KJS tried to fix the dust problem with the ¾ inch gravel, but he agreed that it did not fix the problem completely. He agreed that, apart from the fence and the paving, KJS did not spend any more money to solve the problem, which continued until it finished paving the lot in June 2011.

[128] Mr. Singh produced an Invoice dated June 7, 2011, for $70,000.00, from Triple Star Paving for asphalt paving. Mr. Singh explained that the paving was to eliminate the dust. He acknowledged, however, that the second page of the invoice shows that the charge for asphalt for the rear parking lot was only $10,000.00, and that the balance of the invoice was for a four foot wide, four inch thick L-shaped concrete path.

[129] While Mr. Singh sought to explain KJS’ delay in paving its parking lot by suggesting that it could not afford to undertake the paving at an earlier time, he admitted that Pardeep Singh paid KJS $7,000.00 per month for rent and a further $5,000 to $6,000 per month for transportation services, for a total of $10,000 to $12,000.00 per month. He agreed that this amounted to $120,000.00 to $140,000.00 per year from Mr. Singh alone.

[130] Mr. Singh also admitted that KJS increased its fleet of trucks from 15 in 2006 to 25 in May 2011, and increased its fleet of trailers from 25 in 2006 to 45 in May 2011, although some were rentals. It earned revenue from both the trucks it owned and those it rented. He stated that KJS was able to increase its business by hiring more owner-operated trucks. He explained that KJS operated on a small margin, which it was able to increase only slightly with greater volume.

[131] Mr. Singh did not produce any records showing KJS’s financial circumstances. He did not remember what KJS’s revenues were in 2006 but guessed that its gross revenues in 2007 were between $2 million and $2.5 million. In 2011, they were $3.5 million. He stated, though, that there was not much of a profit margin in the trucking business, with increases in the price of fuel. He agreed, however, that KJS had not pleaded in its Statement of Defence that it was unable to afford to pave its lot.

(iii) Ralph Fenwick’s testimony

[132] Ralph Fenwick has been a by-law enforcement officer for Brampton since August 12, 1980. He inspected the KJS property as a result of a complaint his department received on April 25, 2007, about dust in the area. He attended at the property on May 1, 2007, and conducted a tour. He found the complaint to be valid and prepared a property standards inspection report, which he mailed to the owner. He returned on June 12, 2007, and found no change. He therefore prepared a property standards order dated June 25, 2007, which required compliance with the items noted on the property standards order within 21 days. The defects or deficiencies requiring correction, apart from grading issues, were debris, garbage, and airborne dust.

[133] Mr. Fenwick returned on July 16, 2007, and made a further inspection of the property. Most of the property had been graded by that time, and repairs were underway. He returned again on August 21, 2007, when he found that 2/3 of the lot had been graded and repaired and the other parts of the order were outstanding. He made a final visit on September 18, 2009, when he found that his entire Order had been complied with. He therefore closed the file.

[134] Mr. Fenwick noted that there was no requirement under the by-law for a property to be paved, only a requirement that airborne dust be controlled. Under cross-examination, Mr. Fenwick stated that the Property Standards Order required the owner either to pave (the Order stated “paint” but meant pave) or treat the parking lot to control dust. On July 16, 2007, the rectification of that item had begun. Some asphalt grindings were in place but did not yet cover the lot. They covered the lot by the time he made his final visit on September 18, 2009.

[135] Mr. Fenwick agreed that he had not returned to the KJS property after September 18, 2009. TMS’ lawyer showed him the video clip taken on June 17, 2011, which shows a truck turning in the KJS lot and its tires raising dust. He agreed that the condition of the lot at that time may have contravened the by-law, as there appeared to be dust on the lot at that time. He could not see asphalt grindings in the video.

d) Application of the legal test to the evidence

(i) Was the interference substantial?

[136] I find, for the following reasons, that the dust from KJS’ parking lot was a substantial interference with TMS’ use of its property:

(a) Frequency: The dust interfered with TMS’ manufacturing process on a daily and continuous basis throughout the spring and summer months.

(b) Duration: The interference continued for over four years, from the spring of 2007 to the end of the summer 2011.

(c) Degree of interference: The dust required the assembly process to come to a stop when dust or sand had to be removed by compressed air cleaning.

(d) Impact: If the finish on a fixture was especially sensitive to dust, such as a polished or powder finish, the fixture had to be sent out for re-painting, which caused significant delay, as well as added expense to TMS, which made it difficult for it to maintain the profitability of its jobs.

(e) Remedial measures it made necessary: TMS was required to take special measures to combat the dust, including placing finished fixtures under paper and in boxes instead of on the shelf, which added to the time required for packing.

(f) Impact of the remedial measures: When the doors and windows of the factory had to be closed to prevent dust from entering, the resulting rise in temperature either caused severe discomfort to TMS’ employees, or required the company to resort to special measures, such as distributing extra water and popsicles, or closing the factory altogether.

(g) Powerlessness of TMS to combat it: TMS was unable, in spite of its best efforts, to manage the dust satisfactorily, such as by air conditioning the factory, which would have been prohibitively expensive and may have undermined the effectiveness of the company’s laser technology. Other measures caused delay which interfered with its ability to complete jobs on time or accept jobs that it knew it could not complete on time.

(ii) Was the interference unreasonable?

(a) The character of the neighbourhood

[137] I find, for the following reasons, that KJS’ failure for more than four years to pave its parking lot was unreasonable, based on its incompatibility with the character of the neighbourhood:

The other businesses in the area had paved parking lots and did not engage in uses that created substantial dust.
TMS had chosen the neighbourhood, in part, because the other commercial establishments in the area observed high standards of maintenance.
Creating airborne dust was contrary to the City’s maintenance by-law.
KJS failed to comply with the City’s maintenance standards, as demonstrated by its plea of guilty to the by-law infraction.
KJS’s failure to pave its parking lot significantly increased the amount of dust in the air. As in Walker v. MacKinnon,[^19] KJS created a new condition of the land next to the TMS property, by levelling the land as a parking lot and leaving it unpaved, which created disturbances of dust and sand that did not exist before.

[138] KJS submits that a person who occupies commercial space is expected to tolerate a greater intrusion on his sensibilities than a person occupying residential space. While this is true, the law of nuisance still offers occupants of commercial space protection from conduct that substantially interferes with their use of their property for commercial purposes.

[139] KJS submits that planning and land use regulation are not determinative of the character of a neighbourhood. Geography, environmental factors, and actual use, are more significant. It therefore argues that neither compliance with zoning by-laws nor breach of such by-laws are determinative of whether a use of property is unreasonable. It also argues that it is the effect of a use of property, and not the nature of the conduct, that renders a use unreasonable.[^20] While these principles are true, zoning by-laws are some evidence of the character of the neighbourhood, and of the expectations of parties, such as TMS and KJS, who purchase property in neighbourhoods where such by-laws are in force. The fact that conduct that substantially interferes with others’ use of their property breaches local by-laws in a way that conduct that conforms to the by-law would not, is evidence that the court may consider in determining whether the conduct amounts to a nuisance.

(b) The utility of KJS’ conduct

[140] The business in which KJS was engaged was not of such special utility to the community that it should attract special protection from the court. Additionally, there was nothing in its commercial transportation service that, by its nature, required an unpaved parking lot.

[141] KJS did not assert that its unpaved parking lot enhanced its ability to supply a transportation service. Rather, it simply said that it could not afford to pave the lot earlier. This is not a justification that the law recognizes, especially since KJS purchased its property in a neighbourhood where TMS was already established, and with knowledge of the use that TMS and surrounding businesses made of their properties, and of the fact that a dusty, unpaved, lot was contrary to the zoning by-law.

[142] Even if it would have amounted to a defence that KJS began operating its trucking business when its financial circumstances made paving the lot financially difficult, KJS neither pleaded this fact nor produced any evidence to support it. It did not tender records of its income and expenses, or of its assets and liabilities, from 2007 to June 2011. It acknowledged earning revenues of $2 to 3.5 million per year and did not tender evidence as to why this did not enable it to expend the $150,000.00 that it says was first quoted to it as the cost of paving the lot.

[143] Even if KJS increased the size of its fleet in order to increase its profit margin, which otherwise would not support the expenditure, it did not tender records of what its profit margin was, which evidence was exclusively in its possession. In the absence of such evidence, I find that it was unreasonable for KJS to have delayed paving the lot for the length of time that it did.

[144] Barlow J. noted in Belisle v. Canadian Cottons Ltd.,[^21] in 1952, that a company that purchases property in an industrial area must expect more inconvenience than if it locates in the country, and will lose an action for nuisance that is based on activity that its neighbours take for granted. In the present case, however, while TMS’s manufacturing process was sensitive to dust, its sensitivity was not unique in the area. Its use of its property was consistent with the use that its neighbours made of their properties, including retail warehouses, small manufacturing concerns, and professional offices. TMS’s sensitivity to dust is not what made KJS’s failure to pave its lot for four years unreasonable, although it contributed to the extent of damages TMS suffered because of it.

e) Is Kulwant Singh personally liable for the nuisance?

[145] TMS has not pleaded that Kulwant Singh was acting in his personal capacity in causing the dust that interfered with TMS’ use of its property. Its Fresh as Amended Statement of Claim states:

1707416 Ontario Inc. and KJS Transport Inc. have, over the course of 1707416 Ontario Inc.’s ownership of 247 Sommerlea, used the unpaved gravel lot as a parking lot for their transport trucks and trailers. The gravel dust and sand which is disturbed whenever one of the Defendants’ vehicles drives over this area is excessive and has entered the business premises of the Plaintiffs through doors and windows on the south face of the Plaintiffs’ structure.
…The acts of the Defendants constitute a continuing nuisance which has caused the Plaintiffs damage…. [Emphasis added]

[146] TMS’ allegations do not differentiate the actions of Kulwant Singh personally from those of the corporate defendants. The facts as pleaded do not provide a sufficient basis upon which to find him personally liable for nuisance. The Court of Appeal for Ontario, in 1995, set out what is required in order for a director to be held personally liable for a tort committed by his corporation in the case of Scotia McLeod v. Peoples Jewellers Ltd.,[^22]:

The decided cases in which employees and officers of companies have been found personally liable for actions ostensibly carried out under a corporate name are fact-specific. In the absence of findings of fraud, deceit, dishonesty or want of authority on the part of employees or officers...Absent allegations which fit within the categories above, officers or employees of limited companies are protected from personal liability unless it can be shown that their actions are themselves tortious or exhibit a separate identity or interest from that of the company so as to make the act or conduct complained of their own. [Emphasis added]

[147] Allegations of personal tortious conduct must be specifically pleaded against employees or directors. The Court of Appeal, in Normart Management Ltd. v. West Hill Redevelopment Co.,[^23] in 1998, referred to the Scotia McLeod case and continued:

In the statement of claim in appeal, there is no factual underpinning to support an allegation that the personal defendants were at any time acting outside their capacity as directors and officers of the corporation of which they were the directing minds. There is nothing in the pleadings which suggests that in making the alleged arrangements, Kohn and the Lebovics were acting other than on behalf of and in the interests of the corporations that they controlled. [Emphasis added]

[148] TMS sought at trial to base Kulwant Singh’s personal liability on discussions in which he is said to have told TMS’ management that the dust problem would be taken care of. The testimony does not persuade me, on a balance of probabilities, that Kulwant Singh discussed the dust issue with TMS’ management or said that it would be taken care of. I find that Kulwant and Pardeep Singh’s meeting with Mr. Bahra and another manager of TMS in November 2006 was to discuss KJS’s application to the Committee of Adjustments for approval to perform repairs on its own trucks on its property. The dust from the KJS lot did not become a problem until the following spring of 2007. There was no reason, having regard to either the purpose of the meeting or the timing of the dust problem, for that issue to have been raised at that meeting.

[149] I am also not persuaded that the discussion Mr. Toor says he had with Mr. Singh concerned the dust issue. Mr. Toor stated that the discussion took place during the colder months, when the evidence is that the dust was not generally a problem. Mr. Toor also stated that the discussion was mainly about the trespass issues.

[150] TMS did not allege any personal activity of Mr. Singh, either in his discussion with Mr. Toor or otherwise, that supports a finding of personal liability against him for the nuisance created by his company’s trucks. In 460635 Ontario Ltd. v. 1002953,[^24] in 1999, the Court of Appeal for Ontario allowed an appeal awarding damages against the appellants for breaches of a lease agreement and an agreement of purchase and sale. The sole issue on appeal was with respect to the finding that the sole shareholder and director of the numbered company was personally liable for the damages awarded to the respondents. The respondents conceded that the trial judge was in error in finding personal liability for inducing breaches of contract but argued that there was nevertheless a proper basis for personal liability although wrongly labelled by the trial judge. The only paragraphs of the claim that were alleged to support their argument for personal liability did not make it clear that the personal appellant was being sued in his personal capacity. The allegations were made generally against “the defendants”. The Claim did not allege any negligence against the defendant personally, nor allege that when he acted tortuously, the personal defendant was acting in his personal capacity. There was no attempt to single out his activity. The Court concluded:

As correctly pointed out by counsel for the appellants, the parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability and resulting damages against a defendant on a basis that was not pleaded in the statement of claim cannot stand. It deprives the defendant of the opportunity to address that issue in the evidence at trial. See Kalkinis (Litigation Guardian of) v. Allstate Insurance co. of Canada (1998), 1998 6879 (ON CA), 41 O.R. (3d) 528 (Ont. C.A.).[^25] [Emphasis added]

[151] Similarly, in Labatt Brewing Company Limited et al. v. NHL Enterprises Canada, L.P., et al.[^26] in 2011, the Court of Appeal allowed an appeal from liability based on a finding that the parties had reached a binding agreement that had not been pleaded. The Court held:

In Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74, [2002] O.J. No. 1365 (C.A.), Doherty J. A. held that it was both fundamentally unfair and inherently unreliable for a trial judge to make findings against a defendant on the basis of a theory of legal liability not advanced by the claimant.[^27]

[152] It does not constitute a civil wrong simply to manage or be the controlling mind of a corporation that commits a tort. A plaintiff who wishes to plead that a director personally committed a tort must provide sufficient particulars of what the director personally did or failed to do to support that conclusion, failing which the court may strike the plea against the director as not raising a tenable cause of action.[^28] In the present case, TMS’s theory of personal liability against Mr. Singh, based on the alleged discussion between him and Mr. Bahra or Mr. Toor, is not tenable, both because the evidence does not support it and because it was not pleaded in the Statement of Claim.

2. What is TMS’ remedy for the nuisance KJS created by its dust?

a) The law governing damages for loss of productivity

[153] TMS claims damages for a loss of productivity it says it suffered when sand and dust from KJS’s unpaved parking lot blew or was sucked into its plant, necessitating wrapping, cleaning, or refinishing of its assembled fixtures. It relies on Golden Hill Ventures v. Kenness Mines Inc.[^29] in 2002, in which Burnyeat J. of the B.C. Supreme Court stated:

Loss of productivity can refer to a failure to meet the projected production rate but, in a more general sense, it can also refer to a loss of efficiency in the performance of the work due to “constant changes in the planned sequence of work, increased over time worked, over-manning and congestion”: Dilcon Constructors Ltd. v. ANC Developments Inc. (1996), 28 C.L.R. (2d) 209 (Alta. Q.B.) overturned in part on other grounds, (2000), 2000 ABCA 223, 6 C.L.R. (3d) 34 (Alta C.A.)

As well, loss of productivity encompasses a loss of opportunity to better the original plan: Dilcon, supra, at p. 300; W.A. Stevenson Construction (Western) Limited v. Metro Canada Limited (1987), 27 C.L.R. 113 (B.C.S.C.) at p. 202.

A loss of productivity is often estimated by a trial judge doing the best he or she can on a percentage basis based on the evidence in general regarding the impact of the wrongful acts of the defendants on productivity: W.A. Stevenson, supra, at p. 195 and Precision Industrial Contractors Corp. v. Solid Rock Steel Fabricating Co. (1992), 2 C.L.R. (2d) 239 (B.C.S.C.) at pp. 256-7.[^30] [Emphasis added].

b) TMS’ evidence on the issue of its damages

(i) Paul Endlicher’s Testimony

[154] Mr. Endlicher stated that the cost of materials represents a small part of TMS’ production costs. The cost of labour accounts for the majority of its costs. Efficiencies in the use of labour are therefore of great importance, and even a small decrease in productivity has a large impact on profitability. TMS must absorb any inefficiency in order to maintain prices that are the “going rate” for the kind of fixtures it sells.

[155] Mr. Endlicher stated that from 2007 to 2011, there was a constant demand for TMS’ products. There were ongoing requests for the company to provide quotes for its fixtures. TMS must examine whether it can produce the product the customer requires within the time specified. When its factory’s efficiency is compromised, it must take that into consideration when deciding whether it can fill an order.

[156] Mr. Endlicher stated that there were times from 2007 to 2011 when TMS was unable to accept orders due to the problems with the dust and sand. He did not produce any records of this, and did not know how many times it had occurred.

[157] Mr. Endlicher stated that TMS turned down between 5 and 10% of the orders it received. It was reluctant to do so, especially because the demand for lighting fixtures had declined 40% since the economic downturn in 2008, which had caused more competition among suppliers. Sometimes, though, TMS was simply unable to deliver fixtures within the time frame and cost that the customer required.

[158] Mr. Endlicher was unable to say at what capacity TMS operated from 2007 to 2011. He believed that it could have increased its output by 50%, but acknowledged that it would have had to increase its staff and overhead to do so.

[159] Mr. Endlicher stated that the summer months were the period of TMS’s highest production, since it produces lights for schools that must be delivered before September, when schools open. If there was a 40% loss in productivity for a $200.00 fixture, for extra time that had to be spent blowing or cleaning dust or sand off components, it had to absorb that loss. Productivity was lost, he said, because extra labour was required to clean dust from components or fixtures, which resulted in the company shipping fewer products over the period than they could otherwise have done.

(ii) Suki Bahra’s testimony

[160] Mr. Bahra stated that his brother David had asked his team how long it would take to re-finish a product that had been scratched by sand particles. He calculated that it took as much as five to seven days to strip a fixture back to the bare metal and restore its powder coating, so in a big job, they would lose five to seven business days. On smaller jobs, it would take an hour or two. He stated that David has the records, so he was the one to ask about how the cost was calculated.

[161] David Bahra asked him for time lines on each job, but he did not have the time that was required for re-finishing and re-painting and the costs that these represent. David had those. They did their conventional (liquid) painting in house but they could not apply a new coat over the original coat, he explained, because it produced a bumpy look.

[162] TMS sent out their powder painting and was charged for it. There would be records of that cost but TMS did hundreds of thousands of powder coatings each year and did not keep records of how many times fixtures had to be sent out for re-applications of powder coatings, or the cost the company incurred when fixtures were scratched when wiping dust or sand off.

[163] There were times, Mr. Bahra said, especially when the wind blew from the south, when the dust got so bad that management had to close the shop doors, especially the two closest to the KJS property. They had to close the doors as many as four or five times per day, and in the summer and spring, it would get very warm.

[164] The heat affected the employees, he said, slowing them down. The company had to buy more water and give employees longer breaks to prevent heat exhaustion. Employees normally started work at 7 a.m. and in the summer, worked until 4:30 p.m. or, if they were working overtime, until 5:30 p.m. Management sometimes sent employees home when closing the doors to avoid the dust caused the heat to become too intense. The employees would be getting heat stroke late in the day.

[165] TMS did not keep records of how much labour hours were lost when the factory was closed early due to the heat. When employees were sent home early, the managers remained, and planned for the next day, so the business as a whole remained open. It would therefore be necessary to look at individual employees’ time cards to identify and document when the employees who worked in the factory were sent home early by reason of the heat and how many labour hours were lost.

[166] On days when there was no wind, the fans still scattered the dust inside and on days when the heat was not so intense as to justify closing the factory early, the dust and heat still interfered with the employees’ work.

[167] TMS lost some jobs because of the time lines of six to eight weeks that they were unable to meet. Because of the delay, orders were sometimes cancelled and TMS had to absorb the cost. Records were not kept of these losses.

(iii) Ravi Toor’s testimony

[168] TMS did not track labour by individual project. Mr. Toor therefore did not review the records, but had conversations with production managers and employees.

[169] Mr. Toor stated that in the winter, the fixtures that the Quality Control Department had inspected were placed on shelves in the packing area. In the summer months, they had to be placed in boxes in the packing area to protect them from the dust. No records were kept of the extra time that resulted from this extra step in the process.

[170] The Ministry of Labour required companies to have their employees stop working when temperatures reached a certain point. On some days in the summer months, when they had to close the doors for a period of time and temperatures reached that point, they had to send their employees home. They didn’t keep records of those instances. They did hundreds of jobs in a year, ranging from $500.00 to $50,000.00, and it would have been very difficult, he said, to determine how much time was lost from each one and how much it cost the company.

[171] Mr. Toor said that he discussed with Management how to quantify the loss of productivity that resulted from production delays caused by the dust. From a customer service perspective, what customers talked about was the delay in their orders. When management spoke to employees about why it was taking them so long to get an order out, they explained that they had to take extra measures, like covering components or fixtures with paper or putting them in bags or boxes, to protect them from the dust.

[172] Mr. Toor discussed possible solutions with Mr. Bahra. They discussed installing air conditioning, but the cost of air conditioning 16,000 square feet, or even the factory area alone, would be astronomical.

(iv) Mark Wilson’s testimony

[173] Mr. Wilson stated that on a typical day, he spent at least an extra five to ten minutes per fixture controlling or responding to the dust. He himself assembled fifteen to twenty fixtures over a nine hour shift. In the spring, he worked with two others doing assembling. In the summer, he worked with three others.

(v) David Bahra’s testimony

[174] Mr. Bahra tried to calculate the financial impact of the sand and dust on TMS. He met with their accountant. Their business, he explained, is old fashioned. They look at an individual order, calculate the labour, material, and profit margin. The extra time that had to be spent when dust interfered in the assembly process had to be covered. They did one operation, or one order, at a time, for, say, twenty pieces. You could not leave one while doing the other nineteen. Once a chrome or black surface was scratched, the production of the order had to be stopped. If the dust got really bad, they had to close the doors, and people slowed down.

[175] They had accountants look at it first. They came up with a number. Mr. Bahra looked at it because he did the quoting for jobs. Sometimes, he would assemble a fixture himself, in order to allocate a percentage of cost to the labour required. You have to be hands on, he explained, to know how long it took to produce a product.

[176] If ten fixtures could be produced in an hour, some parts may take more, and some less. If they produced eight instead of ten, TMS made less money. They had to process the orders fast enough in order to be profitable. In effect, it was labout hours that were being billed.

[177] From the summer of 2007 to the summer of 2011, when TMS spread into the United States market, the company grew very rapidly, by as much as 100%. Their busiest months were during the same summer months that the dust affected the most, when they produced fixtures for buildings being finished before the winter. They could allocate only so much labour, because there was only one labourer per assembly table.

[178] The key operating principle for TMS was to meet the customer’s needs, whatever that required. During the period from 2007 to 2011, TMS was unable to process the orders fast enough because when dust or sand got on a fixture, it had to be re-done. It happened several times that they were unable to meet their deadline because they had to send a fixture out for re-painting.

[179] When examined for discovery on February 25, 2011 (at q. 56), Mr. Bahra stated that when they had to refinish a product that was damaged, they had to touch it up three or four times instead of once or twice. He also stated (at q. 60) that there was no damage to the stock. Mr. Bahra states that he has tracked how the company runs and believes that his testimony at trial was accurate.

c) TMS’ evidence of damages as a percentage of revenues

(i) Paul Endlicher’s testimony

[180] Mr. Endlicher stated that he had discussed the amount of TMS’ losses with David and Suki Bahra, and Ravi Toor, the company’s executive vice-president, over the past several years, and that they agreed that the dust and sand caused a loss of between 2 and 4% in the company’s gross revenues. Under cross-examination, he admitted that David Bahra was not a chartered accountant, although he had some accounting background. KJS later argued, based on this admission, that Mr. Bahra lacked the qualifications necessary to express an expert opinion as to the amount of revenues that TMS had lost by reason of losses in productivity attributable to the dust.

[181] Mr. Endlicher stated that TMS had produced records showing gross revenues but none showing the losses it has claimed. He estimated their losses at 2 to 7% of gross revenues based on how much their labour was compromised, but admitted that he did not know how much labour time was actually lost. No specific records of this were kept, he said, because they were working longer to compensate for the delays.

(ii) Ravi Toor’s testimony

[182] TMS tried to estimate the range of loss. Mr. Toor arrived at the figure of 5% of total sales. In arriving at this figure, he looked at:

(a) Orders that were delayed, and how much more time, fifteen or twenty minutes, that was spent on a fixture by handling it five or six times instead of four times. Mr. Toor didn’t do a mathematical calculation, only a rough estimation.

(b) The two or three times per week when fixtures had dust on them and had to be sent out for re-painting at a cost of ten dollars each.

(c) Time that was taken away from work for arguments at the property line with KJS, and that was spent in the office, figuring out what to do, and on the production line because someone was moving fixtures because of dust issues.

(iii) David Bahra’s testimony

[183] Mr. Bahra had meetings with all his employees and with his Chartered Accountant, to come up with a number for their loss. He was the only person who could provide a number because he was the person who did the costing for a project. In order to provide an accurate amount for loss they incurred, he would have had to hire a forensic accountant to watch every one of their processes. Mr. Bahra himself assembled fixtures, and watched his employees assembling them, to calculate the time it required, and the time that delays added. In some cases, it was 45 minutes, in some, a lot more. He spent at least an hour a day watching his employees work, but did not record his observations.

[184] During the summer months alone, from April 2007 to June 2011, gross sales amounted to $9.2 million. He was very confident that his estimate of their losses was correct at 2.5 to 7% of gross sales.

[185] KJS moved to 247 Sommerlea Road in 2006. TMS claims damages from the spring of 2007. It now says that it suffered reduced sales as early as 2007, although it did not issue its claim until 2008.

[186] TMS issued its initial Statement of Claim on May 7, 2008. It stated in paragraphs 12 and 13 that there was a loss of productivity in 2007 and 2008 which it quantified at $50,000.00. Mr. Bahra stated that the claim was initially made for an arbitrary amount (he said “nominal amount”, which I interpret, in the context, to mean arbitrary) for loss of productivity because they wanted the nuisance to stop. On March 29, 2011, they revised the amount of their claim to $650,000.00, plus $50,000.00 for aggravated damages. It was not until 2011 that he quantified their claim for loss of productivity at 2.5% to 7% of gross revenues.

[187] The accountant came up with the number of approximately 2% when they started. When Mr. Bahra started looking at it in more detail, they allocated the hours and asked the employees how long it took them to do their job. They did not obtain an expert report. Other than the amount of gross revenues, they had no records supporting their calculation. He made notes when he calculated the cost of a job but did not provide that calculation.

[188] TMS’s revenues increased each year, due to their marketing, but they did not earn the revenues they otherwise could have earned. Their labour force produced only 8 fixtures per hour instead of 10. Mr. Bahra did not, however, have records documenting this aspect of the company’s loss of productivity.

[189] Mr. Bahra acknowledged that the dust and sand affected gross revenue as well as productivity. He admitted that the increase in gross revenues from the summer of 2010 to the summer of 2011, when the dust was constant, could be compared to the increase in gross revenues from the winter of 2010, when the dust problem existed, to the winter of 2011, when it did not, in order to determine what the overall increase in revenues was, and by how much the increase improved in the winter quarter, after the dust problem was eliminated. This calculation was not done.

d) Application of the Law to the Evidence

[190] TMS argued that its difficulties in proving its loss do not relieve KJS of the responsibility of paying damages, even if the court must estimate the amount it awards. It relied on the following statement by Davies J. in the Supreme Court of Canada in Wood v. Grand Valley Railway Company in 1915:

It was clearly impossible under the facts of that case to estimate with anything approaching to mathematical accuracy the damages sustained by the plaintiffs, but it seems to me to be clearly laid down there by the learned judges that such an impossibility cannot “relieve the wrongdoer of the necessity of paying damages for his breach of contract” and that on the other hand the tribunal to estimate them whether jury or judge must under such circumstances do “the best it can” and its conclusion will not be set aside even if the amount of the verdict is a matter of guess work.[^31]

[191] The Supreme Court affirmed the decision of Meredith C.J.O., in the Appellate Division of the Supreme Court of Ontario and, in particular, the following statement which was later also approved by Spence J., speaking for the Supreme Court of Canada in Penvidic v. International Nickel,[^32] in 1976:

There are, no doubt, cases in which it is impossible to say that there is any loss assessable as damages resulting from the breach of a contract, but the courts have gone a long way in holding that difficulty in ascertaining the amount of the loss is no reason for not giving substantial damages, and perhaps the furthest they have gone in that direction is in Chaplin v. Hicks, [1911] 2 K.B. 786….The defendant contended that the damages were too remote and that they were unassessable. The first contention was rejected by the Court as not arguable, and with regard to the second it was held that “where it is clear that there has been actual loss resulting from the breach of contract, which it is difficult to estimate in money, it is for the jury to do their best to estimate; it is not necessary that there should be an absolute measure of damages in each case”: per Fletcher Moulton, L.J. at p 795.[^33]

[192] The above-mentioned principle applies only where it is impossible for the plaintiff to prove the amount of loss it suffered. Where the plaintiff could prove the amount of its loss but fails to do so, the court should not estimate the damages and thereby relieve the plaintiff of the duty to furnish such proof as is available. This would encourage plaintiffs to withhold the evidence needed to support their theory of their loss in order to deprive the defendants of the opportunity to test it.

[193] TMS relies on the Penvidic case as one in which the court estimated the plaintiff’s loss in the absence of any records proving it. Penvidic involved a claim for breach of contract in the construction of a railroad, where the court calculated the plaintiff’s damages for loss of ballast on the basis of a price per ton. In doing so, the court expressly accepted the evidence of the plaintiff’s independent expert witness, who testified that he thought a price of 60 cents per ton for ballast was reasonable. The Court stated:

I can see no objection whatsoever to the learned trial judge using the method suggested by the plaintiff of assessing the damages in the form of additional compensation per ton rather than attempting to reach it by ascertaining items of expense from records which, by the very nature of the contract, had to be fragmentary and probably mere estimations. [Emphasis added]

[194] In the present case, TMS did not produce an expert whose opinion of TMS’ loss of productivity as a percentage of its gross revenues the court could accept and rely on. Additionally, I find that there were records that TMS could have tendered to prove its loss of productivity on a percentage basis. The Court invited TMS’ counsel to provide the records it had showing TMS’ increase in gross revenues from the summer quarter of 2010 to the summer quarter of 2011, both of which were affected by dust from KJS’ unpaved parking lot; and the increase in its gross revenues from the fall or winter quarters of 2010, which were affected by the dust, to the fall or winter quarters of 2011, which were not affected, so that the effect of the paved lot at the end of June 2011 could be measured with precision. David Bahra acknowledged that this information was available, but he did not tender it.

[195] It is up to a plaintiff to decide how it chooses to prove its case, but the Court in the present case must draw an adverse inference from TMS’ failure to tender evidence that was available to it to prove the percentage loss in its productivity. I find that such evidence, if called, would not have supported the full amount of damages it claims. In Stellarbridge Management Inc. v. Magna International (Canada) Inc.,[^34] in 2004, the lessor of a commercial property successfully claimed damages from the lessee for the repair and restoration of the premises at the end of the lease. The lessee sought to have the damages discounted by 35% to adjust for betterment, which the Court of Appeal for Ontario held was unsupported by the evidence. The Court held that, in the absence of evidence to support the 35% betterment discount, or any discount rate reflective of wear and tear actually occasioned to the leased premises, no betterment discount could be applied to reduce the damages for restoration, repair, and management fee. Cronk J.A. stated:

This was not a case where Magna and Tesma were unable to call relevant evidence concerning the appropriate value of the asserted discount. The trial judge noted that representatives of Magna and Tesma, who were not called as witnesses at trial, “had first hand knowledge on issues relevant to the condition of the interior and exterior of the building” No evidence was offered to suggest that these witnesses were unavailable to testify. Accordingly, the trial judge drew an inference that the evidence of these witnesses would not have assisted Magna and Tesma had it been led at trial. It was open to the trial judge to draw such an adverse inference. That inference is entitled to defence from this court.

To the extent that this outcome may be said to result in “windfall” damages to Stellarbridge, Magna and Tesma cannot be heard to complain of a result occasioned by their own failure to establish the reduction in damages from which they sought to benefit. Trial judges are required to quantify a plaintiff’s proven damages, as best as they are able, based on the record before them. However, they are not obliged to do so out of “whole cloth” by fixing a discount for damages in the absence of any supporting evidence and in the face of a litigant’s failure to adduce available, relevant evidence concerning the very facts in issue. [Emphasis added]

[196] Having regard to TMS’ failure to produce evidence in support of the percentage loss of productivity that it argues should be applied, the court will not assess TMS’s damages on the basis of 2% to 7% of gross revenues. There is simply no evidence whose reliability and appropriateness both the defence and the court can assess to support those percentages.

[197] This is not a case where the proof, although available, would have taken a disproportionate time to present or be considered. In B & A Bobcat and Excavating Ltd. v. Sangha,[^35] Newbury J.A., speaking for the B.C. Court of Appeal, approved this passage from its earlier decision in B.C. Hydro & Power Authority v. Marathon Realty Co. Ltd., where Seaton J.A. stated:

In my view, what we have here is a case in which it is quite impossible to calculate the loss with great precision. Nor can we calculate the cost of each items. It might not be impossible but it would be unreasonable to spend the court’s time valuing each letter, each phone call, each intervention by a Hydro person.

This is not a case of there not being proof of a loss. There is proof of a loss but it is one that is difficult to quantify. The court has an obligation to do so, keeping in mind that the onus is on the plaintiff. Reference is often made to Chaplin v. Hicks…, where it is said that if a loss has been established and the quantum is not capable of specific proof it is not only permissible but necessary for the trial judge to do the best he can.[^36] [Emphasis added]

[198] TMS also relies on the decision of the B.C. Supreme Court in Road King Asphalt & Aggregate Ltd. v. Farr Fabricating[^37] in 1985. That case involved a claim for damages for fundamental breach of a contract of sale of an asphalt spreading plant. The Court found that it was impossible to calculate the damages resulting from loss of productivity with great precision, and the Court had specific evidence of jobs that took longer than contemplated because of the malfunction of the purchased equipment. Chamberlist J. stated:

Loss of productivity is another matter. The conclusions I have reached with respect to the operation of the plant evidence a loss of productivity that can be compensated by a monetary award. There is, regretfully, no formula that can be applied and as in B.C. Hydro & Power Authority v. Marathon Realty Co. Ltd., it is quite impossible to calculate the loss with great precision. I am however satisfied that a loss has been established and therefore it is necessary for me to do the best I can. The evidence is uncontradicted that the Home Depot job, for example, took substantially longer than first contemplated. Crews were required to work longer hours and additional costs were incurred with respect to lighting and payment of truckers who ultimately were paid for the additional hours waiting in line at the asphalt plant. Similar delays, I find, were incurred on the West Fraser contract in Williams Lake.[^38]

[199] In the present case, by contrast, it was possible to calculate the loss, based on a comparison of the year over year change in gross revenues, from the June through August quarter of 2010 to the same quarter in 2011 and from the September through December quarter of 2010 to the same quarter in 2011. TMS’ evidence was that its fall quarter revenues were unaffected by the dust from KJS’ lot because TMS was able to close its doors and windows during that quarter, but that its summer quarter in 2010 was affected and the summer quarter in 2011 was not, because the lot was paved in June 2011, which removed the dust problem. This evidence would have provided the formula that was absent in the Road King Asphalt & Aggregate Ltd. case.

[200] Additionally, TMS, unlike the plaintiff in Road King Asphalt & Aggregate Ltd., did not name any specific job in which substantial delays occurred, or in which a contract was cancelled, or could not be accepted because of such delays. I therefore decline to base my assessment of TMS’ damages on a percentage of its gross revenues during the claim period.

[201] KJS submits that TMS should be awarded only nominal damages. Lord Halsbury gave the best statement as to the meaning of nominal damages and when they should be awarded in The Mediana. He stated:

Nominal damages is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed.[^39] [Emphasis added]

[202] Nominal damages may also be awarded where the fact of a loss is shown but the necessary evidence as to its amount is not given.[^40] McGregor on Damages cites as an example of such damages Twyman v. Knowles,[^41] where a property owner sued the defendant for trespass to his land, where the defendant became the lessee of the land only five days after the trespass began.

[203] KJS also relies on Martin v. Goldfarb,[^42] in 1998. In that case, involving a client’s action against solicitors for damages for breach of fiduciary duty, the Court held that the trial judge had failed to distinguish between the losses suffered by the client personally from those suffered by the corporations he controlled. The Court held that the client was entitled to only those losses he incurred personally and that the trial judge had made a substantial award of damages that was unsupportable by the evidence. Finlayson J.A., for the Court, stated:

For the following reasons, I would conclude that Martin failed to prove the losses through appropriate evidence. The trial judge’s award of damage is speculative at best, and does not reflect with much precision real losses flowing from the breach, notwithstanding that the plaintiff bore the burden of proving the losses in the normal course.[^43]

[204] Finlayson J.A. held that the trial judge had erred when he estimated the plaintiff’s damages after the plaintiff had failed to call relevant evidence on the issue. He held that the Court’s decision in Wood v. Grand Valley Railway could not be relied on as authority for this approach. He concluded:

The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.[^44] [Emphasis added]

[205] It is not the nature of TMS’ damages that makes them difficult to assess. Rather, it is TMS’ failure to call the evidence necessary to support its theory of damages based on lost productivity, calculated as a percentage of revenues.

[206] Because TMS asked the court to calculate the damages caused by the dust as a percentage of the revenues it earned during the five year period when the dust was a nuisance, it was incumbent on it to prove not only what its revenues and profit margins were during the period, but also the extent to which the dust negatively affected them. There was no evidence to support its theory that its damages amounted to 2% to 7% of gross revenues earned, or to establish where within the range of $184,000.00 to $645,000.00 that those percentages represented, its actual damages lay. Having rejected this basis for calculating TMS’ damages, I turn to consider whether TMS’ evidence supports a finding as to its damages on another basis.

[207] Mark Wilson testified that they had dust coming into the building at least four or five times a day, every day during the spring and summer. Mr. Toor also stated that, during the spring and summer, there were issues with dust on a daily basis, unless it rained for three or four days in a row.

[208] David Bahra testified that even on days when there was no wind, the fans would suck the dust that had settled outside the TMS factory into the building and that it would migrate from the back to the front. I conclude from this that the dust was a daily problem, from April or May to September or November, a period which I find to be, on average, five months.

[209] Suki Bahra testified that, as a result of the dust, TMS’ employees, instead of handling fixtures once, would have to handle them three or four times. Mr. Wilson, the assembler, testified that, on a typical day, he spent at least an extra five to ten minutes per fixture. He himself assembled fifteen to twenty fixtures over a nine hour shift, for a total of 100 to 200 minutes. In the spring, he worked with two others, for a total of three, doing assembling. In the summer, he worked with three others, for a total of four.

[210] Based on the testimony of Mr. Wilson and of Suki and David Bahra, above, I find that TMS’ loss of productivity was as follows:

(a) April 15 to June 15:

Average of 150 minutes/day x 3 employees = 450 minutes/day

450 minutes/day x 5 days/week x 8 weeks = 300 hours

(b) June 15 to Sept. 15:

Average of 150 minutes/day x 4 employees = 600 minutes/day

600 minutes/day x 5 days/week x 13 weeks = Total of 650 hours

(i) 5 years x 300 hours = 1500 hours

(ii) 4 years x 650 hours = 2600 hours

[211] A reasonable hourly rate to apply to TMS’ loss of productivity is the difference between the $90.00 per hour “shop rate” which it charged its customers, less the average of $15.00 to $35.00 per hour (average $25.00) actually paid to employees, for a net hourly rate of $65.00 per hour.

[212] Based on the foregoing, I find that TMS’ damages for its loss in productivity from the nuisance created by the dust from KJS’ unpaved parking lot was as follows: 4100 hours x $65 per hour = $266,500.00

[213] Suki Bahra testified that, on a normal size order, TMS lost six to eight labour hours among the 35 employees, from 7:00 a.m. to 4:30 p.m. While it is tempting to use this simpler formula for the company’s loss of productivity in calculating the damages it suffered, I prefer Mr. Wilson’s estimate of the time lost, based on his own experience, as one of the employees who did the assembling, as to how many minutes the dust added to their task.

e) Additional damages

[214] Mr. Bahra based his calculation of TMS’ loss, in part, on the fact that fixtures that had dust on them had to be sent out two or three times per week to be re-painted at a cost of ten dollars each. An average of 2.5 fixtures per week x the 97 weeks referred to above (9 weeks x 5 years) + (13 weeks x 4 years) x $10.00 per fixture produces a cost of $2,425.00. This amount will be added to TMS’ damages.

[215] Mr. Wilson testified that there were times when dust settled on the components he was assembling, or on completed fixtures, making it necessary for him to clean them off with an air blower, as a cloth would scratch the finishes. He stated that there were a couple of occasions when fixtures were scratched in the attempt to clean the sand off them. I find the evidence on this issue to be in conflict, since Mr. Bahra, in his examination, testified that none of the inventory was damaged. I am not prepared to find, on a balance of probabilities, that TMS suffered a compensable loss as a result of the scratching of finishes on products, distinct from the cost of re-finishing, which I have taken into account above.

3. Did KJS’ trucks trespass on TMS’ property?

a) TMS’ Evidence

(i) Mr. Endlicher’s Testimony

[216] Mr. Endlicher states that KJS’ trucks crossed onto TMS’ driveway, damaging curb stones and displacing the concrete blocks that were installed to take their place. He saw that on the KJS side of TMS’ building, the blocks were moved so far that TMS’ own trucks could not get into its driveway. He observed that, he said, too many times to count.

[217] Once the one thousand pound concrete blocks were moved or damaged, a forklift was required to re-position them. TMS’s employees then had to stop what they were doing and move a block so that a truck could get in. He estimated that this happened forty to fifty times over the period from April 2007 to June 2011.

[218] Mr. Endlicher identified one photograph of a KJS truck actually driving onto TMS’ driveway. The curb stone on the TMS property appears to be broken. Mr. Endlicher explained that when trucks drive over the curb stones and broke them, TMS did not replace them immediately.

[219] Mr. Endlicher tendered photographs, some of which are listed in Schedule “D”, showing the trespasses by KJS trucks and the efforts TMS made to stop them. These include photographs of one truck entering the KJS parking lot and another exiting, showing that it was impossible for them to complete these movements simultaneously without encroaching on the TMS driveway; a tractor trailer emerging from KJS’s loading doors, with no room for another to enter or back up without encroaching; broken curbstones near KJS trucks; and the larger concrete blocks lining the driveway and displaced into the driveway.

[220] Mr. Endlicher states that there were thirteen blocks installed before January 24, 2008. The photographs show some of the blocks four or five feet onto TMS’s property. Mr. Endlicher stated that the trespasses by KJS trucks have continued to the present time.

[221] Mr. Endlicher estimates that he has observed trucks trying to pass each other when entering and exiting from the KJS lot twenty or thirty times. He has never seen trucks pass each other on TMS’ property. He denies that TMS’ trucks or suppliers ever entered onto the KJS property.

(ii) Suki Bajra’s Testimony

[222] Mr. Bahra stated that after KJS moved in, its trucks began to trespass, crossing onto TMS’ driveway. He tendered photographs showing the KJS trucks trespassing onto TMS’ property:

(a) Photographs #195 and #205, dated December 20, 2007, taken at the property line on the west side of the TMS property, show snow plowed from the KJS property onto the TMS property, and the snow bank, fourteen to eighteen feet long, with many tire marks of vehicles that have crossed over the TMS driveway to enter the KJS lot. Mr. Bahra explains that TMS’ loading doors are all at the back of its building, so there is no need for its trucks to drive onto KJS’ property. TMS has a U-shaped driveway, so trucks can enter from the north or south and exit, on the opposite side, back onto Sommerlea Road.

(b) Photograph #278, taken September 15, 2010, shows a tractor trailer entering the KJS property but entering onto TMS property when it is unable to make the turn.

(c) Photograph #282, taken February 11, 2011, shows TMS on the left, KJS on the right, and tire tracks showing how much the trucks had to cut onto TMS property to make it into the KJS driveway.

[223] Mr. Bahra stated that when KJS moved in next door, TMS did not have any fences or curb stones. Curb stones were installed when KJS trucks, backing up to the KJS shipping doors, began crossing onto TMS’ property, damaging the asphalt on its driveway. The trucks continued to trespass, and pushed the curb stones against TMS’ building. On a typical day, TMS had 20 or 30 vehicles coming in and out of its property, so it was necessary for it to restore the curb stones that KJS trucks had displaced in order to avoid their interfering with TMS’ own vehicles.

[224] Mr. Bahra entered photographs showing continued trespasses by KJS trucks and damage done to TMS’ curb stones:

(a) Photograph #194, taken June 1, 2007, shows curb stones at the property line, before they were displaced. Photograph #210, taken April 1, 2009, shows the driveways of TMS and KJS and a KJS truck backing onto the curb stone so that it can get lined up with the KJS loading doors.

(b) Photograph #247, taken November 27, 2006, shortly after KJS moved in, shows one of the first curb stones that were installed. They were only 48 inches long by eight inches wide by six inches tall, and KJS’s heavy trucks destroyed them. The photographs show the deteriorated concrete with rebar curb stones.

(d) Photographs #229 and #231, taken March 8, 2008, show curb stones, with track marks going across the top right hand corner, dragged by a KJS truck from the south.

(e) Photographs #237 and #242, taken April 12, 2008, show curb stones at the property line, damaged after being run over, and with the ones closest to Sommerlea Road displaced.

(f) Photo #245, taken April 13, 2008, shows tire tracks from the KJS property to the TMS property. Mr. Bahra states that KJS never tried to repair or replace TMS’ damaged curb stones.

[225] Mr. Bahra stated that the original curb stones were replaced by larger concrete blocks, three feet long, by two feet wide, by two feet high. He entered further photographs showing these blocks and how they were struck and displaced by KJS trucks:

(a) Photograph #49 shows the larger concrete blocks that were installed. Eleven are shown in the photograph.

(b) Photograph #262, taken March 24, 2008, shows two blocks, at the end closest to the KJS loading dock, and originally installed in a straight line, displaced.

(c) Photograph #268, taken June 1, 2010, facing east on the TMS property line, shows five blocks, with the three in the foreground, being closest to Sommerlea Road and to the KJS loading bays, displaced. Mr. Bahra states that TMS would straighten the stones out one to six times per month, which required three people spending an hour with a forklift.

(d) Photograph #273, taken June 1, 2010, shows one TMS employee driving the forklift, straightening concrete blocks that had been moved out of line, and two others lining up the blocks. Another photograph #218, taken April 8, 2008, shows one person helping the forklift operator.

(iii) Ravi Toor’s testimony

[226] Mr. Toor stated that curbstones that TMS had installed on the side of its driveway were broken by KJS trucks driving onto them. On four or five occasions, he himself saw their trucks drive onto TMS’s property. Prior to KJS moving next door, he says, no trucks drove over the property line.

[227] Mr. Toor spoke with Kulwant Singh twice, near the property line between their properties. Mr. Singh was outside and Mr. Toor went out to speak with him. One of their discussions took place in about June 2007. Mr. Toor told him that KJS trucks were trespassing and striking the curb stones that TMS had installed. Mr. Singh said it would be taken care of. On the first occasion, some plans were discussed to install three to four foot high steel tubes to stop cars and trucks.

[228] Mr. Toor had one further conversation with Mr. Singh during the colder months, when an argument developed between a few employees of the TMS facility and few employees of KJS. The argument became heated, and Mr. Toor went out and spoke with Kulwant Singh, mainly about the trespass issues.

[229] Trucks would come into KJS’ parking lot, Mr. Toor says, and hop over the curb stones that TMS had installed. TMS management decided to replace the curb stones with larger, 2 foot by 3 foot concrete blocks. The KJS trucks struck the blocks and moved them. TMS employees straightened them to avoid TMS’s own trucks getting scraped while being driven down its driveway to get to its loading bays at the back of its building. It become so common that Mr. Toor stopped paying attention to it. He decided not to keep talking to them about it.

[230] Mr. Toor doesn’t remember putting a complaint in writing. He might have written a letter but hasn’t looked to see if he has one.

(iv) David Bahra’s testimony

[231] Mr. Bahra states that KJS has only one entrance, from Sommerlea Road to its parking lot, and leading to its shipping doors, which are on the north side of its building. It widened its entrance driveway in 2010 or 2011.

[232] The TMS property has a U-shaped driveway that enters from Sommerlea Road along the south side of its property, parallel to the KJS entrance, and proceeds to the back of its building, where its loading bays are located, and continues along the north side of its building and back onto Sommerlea Road.

[233] Mr. Bahra saw KJS trucks trespass on TMS’ driveway every day. He also arrived in the morning and saw tire tracks showing where they had done so.

[234] TMS had curb stones on the south side of its driveway, at the property line that separates its property from the KJS property. Mr. Bahra saw KJS’ trucks hit the TMS curb stones hundreds of times. KJS has 50 to 60 trucks going in and out of its property every day. Often, they drove over TMS’ curb stones and, eventually, broke them. The curb stones were smashed to bits.

[235] TMS’ managers went over and spoke to KJS personnel, who promised to replace the curb stones but never did. They objected when TMS staff took photographs, so TMS stopped photographing them. TMS sent estimates to KJS of the cost of replacing the curb stones and eventually installed concrete blocks in an effort to prevent the KJS trucks from continuing to trespass.

[236] Mr. Bahra acknowledges that he has no evidence to support paragraph 5 of TMS’ Statement of Claim, which states that Kulwant Singh himself directed the employees and agents of KJS and the numbered company to drive their trucks onto TMS’ lands.

b) KJS’ Evidence

(i) Pardeep Singh’s testimony

[237] Both Pardeep Singh and Kulwant Singh deny that Mr. Bahra complained about trespasses by KJS trucks onto TMS property at the meeting that took place between representatives of the companies in November 2006.

(ii) Kulwant Singh’s testimony

[238] Kulwant Singh acknowledges that KJS’ trucks drove over TMS’ curb stones. He says that he didn’t see it himself, but knew that it happened. He states that he himself saw TMS’ own freight trucks and trailers also drive over the curb stones. KJS’ address is 247 and TMS’ address is 247A Sommerlea Road. Drivers arrived every day at 247 Sommerlea Road looking for TMS, and saying that no one told them that TMS’ address was 247A. They then drove their trucks to TMS’ driveway and, in doing so, drove over the curb stones. Mr. Singh saw that happen as often as once a week.

[239] Mr. Singh produced photographs, which were entered as exhibit 6, of a truck from “Speedy Transport,” which Mr. Singh says was driving to TMS, driving over a curb stone from KJS’ property to TMS’ property.

[240] Mr. Singh states that there are now concrete blocks on the property line. While acknowledging that KJS trucks may have struck the blocks, he states that on two or three occasions, he has also seen TMS trucks striking them.

[241] Mr. Singh states that he met with his drivers and told them not to drive over the TMS’ curb stones. KJS widened its driveway in 2008, which gave its drivers three more feet of space when entering the parking lot.

[242] Mr. Singh states that he has no recollection of having received the invoice that TMS says it sent him in late 2007 or early 2008, for the cost of replacing the curb stones. He does not deny that it was sent but says he does not remember receiving it before receiving TMS’ Statement of Claim in 2008. He also does not remember any correspondence from TMS’ lawyer about curb stones, although he admits that such correspondence may have occurred.

[243] Mr. Singh was shown photograph #210, taken April 1, 2009, showing a truck on one of TMS’ curb stones and admitted that it looked like the truck was going from the KJS property to the street. He also admitted that photographs #278, taken September 15, 2010, shows a truck that appears to be entering the KJS lot, that is also on one of TMS’ curb stones.

[244] Mr. Singh acknowledges that the curb stones and cement blocks were on the TMS side of the property line. He acknowledges that photograph #186, taken June 1, 2010, shows a concrete block that had apparently been struck from the left, where the KJS driveway was located. He agrees that the block has been displaced.

[245] Mr. Singh also agreed that photograph #268, taken June 1, 2010, shows a series of concrete blocks, and that the fifth block looks like it has been displaced from the KJS side into the TMS driveway.

[246] Mr. Singh states that he inspected the KJS property before buying it and didn’t notice that it might be a tight fit for trucks to turn around in the parking lot or when backing up to his loading bays.

4. Is Kulwant Singh personally liable for trespass?

[247] In the present case, KJS had a duty to control its own employees, and even its independent contractors, who, under Kulwant Singh’s direction, used its parking lot to load and unload their products. In Mynott v. British Columbia (Ministry of Transportation),[^45] in 2011, the Supreme Court of British Columbia approved the following statement of Fox L.J. in Page Motors Ltd. v. Epsom and Ewell Borough Council (1981), 80 LGR 337 (C.A.):

In general, A is under no duty of controlling B to prevent his doing forseeable damage to C. There can, however, exist relationships between A and B which can impose such a duty. The relationship between adjoining landlowners, as regards nuisance, is, I think, such a case. I agree with the judge that Sedleigh-Denfield v. OCallaghan [1940] AC, 880, decides that (a) Where a nuisance is due to the act of a trespasser or stranger, the occupier of the land is liable if he continues the nuisance; (b) An occupier continues a nuisance if, with knowledge or presumed knowledge of its existence, he fails to take any reasonable means to bring it to an end though with ample time to do so.[^46] [Emphasis added]

[248] The plaintiff’s Fresh as Amended Statement of Claim alleges:

Kulwant Singh directed the employees and agents of 1707416 Ontario Inc., and JHS Transport Inc., from the date of the purchase of the property in 2005, to drive KJS Transport Inc.’s transport trucks and trailers onto the Plaintiff’s land. The unauthorized and direct entry of the Defendants and/or their agents onto the Plaintiffs’ land has interfered with the Plaintiffs’ use of their land and constitutes trespass to land.
The Defendants’ trespasses were directed by Kulwant Singh and intended by the corporations to facilitate their own business interests. By their trespasses, the Defendants’ and their employees have increased their ability to make full turns and enter and exit onto their property without damaging their vehicles. They have trespassed or directed the trespasses in order to protect and improve their own economic interests. Their selfish and intentional disregard of the Plaintiffs’ property interests justifies an award of aggravated damages. [Emphasis added]

[249] I find that Kulwant Singh, as director of KJS, caused its employees to turn in an area that inevitably resulted in their trespass upon TMS’ driveway. His role as director of KJS and the numbered company, who actively managed the drivers in their use of the KJS property, is pleaded with sufficient particularity in the Claim to give him notice of the allegation made against him.

[250] In ADGA Systems International Ltd. v. Valcom Ltd. et al., in which the Court set aside a summary judgment dismissing a claim against an officer and director of a corporation for a tortious act done in pursuance of a corporate purpose, Carthy J.A., speaking for the Court of Appeal, distinguished between an action based on procuring a breach of contract by a corporation and participating in a tort such as trespass to property. He stated:

… Nothing that I have said to-day is, I hope, inconsistent with the rule that a director or a servant who actually takes part in or actually authorizes such torts as assault, trespass to property, nuisance, or the like may be liable in damages as a joint participant in one of such recognized heads of tortuous wrong.

The consistent line of authority in Canada holds simply that, in all events, officers, directors and employees of corporations are responsible for their tortuous conduct even though that conduct was directed in a bona fide manner to the best interests of the company, always subject to the Said v. Butt exception.[^47]

[251] In the present case, Mr. Singh had knowledge of the fact that KJS trucks were trespassing on TMS’ driveway. Although he maintains that he told drivers not to drive onto their driveway, I find that it was inevitable that they would do so and, once aware of the fact that they were doing so, he was, without taking steps to prevent it, at least wilfully blind to the fact that they were continuing to do so.

5. What are TMS’ damages for trespass?

a) TMS’ Evidence – David Bahra’s testimony

[252] Mr. Bahra stated that when KJS bought the property next door, there were zoning concerns, so TMS decided to install curb-stones to prevent trespasses. He entered an invoice dated September 29, 2006, from shortly after KJS bought its property, for labour, material, and equipment needed to install sixteen precast curb stones at a total cost of $2,014.00.

[253] Mr. Bahra stated that TMS bought the sixteen curb stones, each six feet long by two feet wide by two feet high, and weighing about 700 pounds, from a nursery at the end of 2007 or early in 2008. It still has five or six of them. The others were damaged and scrapped. TMS bought them with petty cash, Mr. Bahra says, and the receipts were misplaced during an audit.

[254] Mr. Bahra states that he would have to count the larger concrete blocks but, from the photos, he could see eleven of them. He explains that concrete curbs were used as a barrier for the first one hundred feet, so the blocks do not cover the whole property line.

[255] The trespasses still occur, Mr. Bahra says, when KJS trucks come onto the TMS side of the barriers or back up onto the TMS driveway. He entered an estimate dated September 1, 2010, for the supply of 30 additional concrete barrier blocks, for a total of $11,820.00 plus GST. He states that TMS did not follow through with purchasing additional blocks at that time.

[256] Mr. Bahra states that TMS did not keep records of how often concrete blocks were straightened out but he estimates that it was once or twice each month, when they interfered with the ability of TMS drivers or suppliers to use the TMS driveway to get to its loading door. He states that it takes three employees with a forklift two hours to straighten out the blocks. At once per month for the 65 months from September 2006 to January 2012, at 6 labour hours per occurrence, he calculated the loss of productivity at 390 hours.

b) KJS’ argument as to damages

[257] The defendant argues that nominal damages should be awarded for the trespass in the present case and that a mandatory injunction would be oppressive.

c) Applying the law to the evidence

[258] I find that KJS’ trucks destroyed ten of TMS’ 16 curbstones, which cost $2,014.00, or $125 each. Six of the curb stones were undamaged and remain in place along the fence. The cost of replacing ten of the curb stones would have been $1,250.00. However, the curb stones proved to be an insufficient barrier for KJS’ trucks and had to be replaced by more substantial concrete barriers.

[259] TMS has misplaced the receipts for its expenditures on the larger concrete barriers. KJS has proposed that TMS be compensated at the rate of $23.00 per concrete block on the basis that this was the price at which KJS was able to acquire similar blocks for its own use. This might indeed have been the cost had KJS done what they promised TMS they would do and replaced the destroyed curb stones itself. It failed to do so, however, and therefore cannot impose the lower cost it incurred in acquiring its own concrete blocks on TMS.

[260] I find that the best evidence of the cost which TMS incurred is the estimate it obtained from the supplier from which it considered acquiring additional concrete blocks in 2010. The estimate was for 30 additional concrete barrier blocks, for a total of $11,820.00 plus GST. TMS purchased 16 of the blocks. It still has five or six in use but all were acquired to replace the curb stones that KJS’s trucks destroyed, so they should be compensated for all of them. I find that the expense TMS incurred amounted to approximately half of the $11,820.00 plus GST that it would have cost in 2010 to purchase twice the number. Accordingly, its loss is assessed at $5,910.00 plus GST.

[261] Suki Bahra testified that TMS did not keep records as to how often the concrete blocks were straightened out, but he estimated that it was once or twice each month, when they interfered with its drivers’ ability to use TMS’ driveway to back up to its loading door. He estimated that it required three employees with a forklift two hours to re-place the barriers. Based on once per month for the 65 months from September 2006 to January 2012, at 6 labour hours per occurrence, he calculated the cost at 390 hours at a “shop rate” of $90.00 per hour, for a total of $35,100.00. TMS actually pay their employees $15.00 to $35.00 per hour, not including benefits.

[262] The period of time has now increased to 72 months from September 2006 to the end of August 2012. The evidence, both of Mr. Bahra and the photographs entered, disclosed that there was sometimes only one employee assisting the forklift driver to line up the concrete blocks. I am therefore reducing the labour hours per occurrence to an average of 5 (between four and six) and using the hourly rate of $65.00, being the difference between the “shop rate” of $90 per hour charged to customers, and the average of $25.00 paid to employees. On this basis, the loss incurred by TMS was $23,400.00 (72 months x 5 labour hours x $65.00).

[263] I agree with the defendant that a mandatory order enjoining KJS from encroaching on TMS’ driveway may effectively prevent it, at least without substantial re-building of its loading docks, from continuing to use its parking lot for the loading and unloading of its trucks and is a drastic remedy that ought not to be awarded without considerable thought.[^48]

[264] The defendant relies on the decision of A.L. Smith L.J. of the Court of Appeal in England in Shelfer v. City of London Electric Lighting Co.,[^49] in 1895, which set out a “good working rule” with respect to an award of damages in the cases of trespass, the rule being that damages may be substituted for an injunction where:

If injury to plaintiff’s legal rights is small;
And is capable of being estimated in money;
And is one which can be adequately compensated by a small money payment;
And the case is one in which it would be oppressive to the defendant to grant an injunction.

[265] In Bellini Custom Cabinetry Ltd. v. Delight Textiles Limited and 301094 Ontario Limited[^50] in 2005, Kowak J. declined to apply that rule in the case of a six foot high wooden fence mounted on a 260 foot long retaining wall, extending, at the top of the wall, from 4 ½ inches at one end to 5 ¾ inches at the other. She found that the wall constituted a trespass. The foot of the wall encroached onto the plaintiff’s property from 2 1/2 inches at one end to 4 1/2 inches at the other, and at the top of the wall, from 4 1/2 inches at one end to 5 3/4 inches at the other. Based on these findings, Justice Klowak concluded that the entire wall encroached on the plaintiff’s property and amounted to a trespass.

[266] Justice Klowak found that the incursion of the wall onto the plaintiff’s property was a structural encroachment which was not fleeting or transitory, and that the impact on the plaintiff’s land was significant by continuing to diminish his access to the rear of his property. She held that, in those circumstances, damages were not an appropriate remedy and granted a mandatory injunction requiring the defendant to remove the wall at an estimated cost of $220,000.00. Justice Klowak stated:

Even if plaintiff would be entitled to damages at large because of the trespass, as set out by Lederman J. in Hudson’s Bay Co. v. White, [1997] O.J. No. 307 (ON SC), I am of the opinion it would not be a small or nominal payment and would not adequately compensate the plaintiff due to the continuing and progressive nature of the trespass in all the circumstances.[^51]

[267] In taking this course, Justice Klowak followed the alternative principle set out in Earle v. Martin[^52], where the eves of the defendant’s house encroached .16 metres over the plaintiff’s property and a fence encroached .25 metres over the boundary line, and the Supreme Court of Newfoundland regarded a mandatory injunction as the appropriate remedy. It found that the encroachment was not trifling in character because of its permanent and continuing nature. In Lewvest Ltd. v. Scotia Towers Ltd.[^53], in 1981, the Newfoundland Supreme Court stated:

Under our system of law, property rights are sacrosanct. For that reason, the rules that generally apply to injunctions do not always apply in cases such as this. The balance of convenience and other matters may have to take second place to the sacrosanctity of property rights in matters of trespass.[^54]

[268] The Court of Appeal upheld Klowak J’s approach, based on her finding that the structural incursion onto the respondent’s property was not fleeting or transitory and that its impact was significant in continuing to diminish his access to the rear of the property. In particular, the respondent had testified that his business was affected by the restrictions on his use of the storage facility at the rear and the difficult access both by trucks and by employees in their cars. While the plaintiff had not quantified the loss from the defendant’s trespass, and the restriction of the plaintiff’s property that it caused, the trial judge was satisfied based on the nature of the restrictions and the fact that they were ongoing and progressive, that a nominal damages payment would not adequately compensate it. She therefore concluded that the appropriate remedy in all the circumstances was a mandatory injunction requiring the appellants to remove the wall forthwith.

[269] The Court of Appeal found additional support for the trial judge’s conclusion that a mandatory injunction was not oppressive to the defendants and provided by the fact that the defendants had acknowledged, when they purchased their property, that it was subject to an agreement that provided for that very remedy in the event of further encroachment of the wall and assumed the vendor’s responsibility under that agreement.

[270] I find in the present case that the trespass by KJS’ trucks over TMS’ driveway is a substantial interference with TMS’ rights and that KJS was or should have been aware, when it bought the KJS property, that it would not provide a sufficient turning radius for its trucks without their trespassing on TMS’ driveway.

[271] In G.H.L. Fridman, Q.C.’s The Law of Torts in Canada,[^55] the author notes that an injunction may be given where the defendant is likely to repeat or continue the trespass, undeterred by an award of damages. Indeed, it has been thought that to award damages in such situations might simply be a mode of permitting what would be a private expropriation. The author continues:

For an injunction to be refused in such circumstances it would have to be shown that the plaintiff’s injury was small, that damages would be an adequate means of compensating him for such loss, and that the measure of damages was sufficiently large to act as a deterrent to others and not simply a licence fee permitting the defendant to trespass on payment of an amount of money which would represent only a trifling cost for the privilege of trespassing on the plaintiff’s land and, in effect, acquiring it compulsorily.[^56]

[272] In the present case, I find that the effect of an award of damages would not deter KJS from continuing trespassing on TMS’ driveway and would, in fact, amount to at least a compulsory right of way over its neighbour’s property. In such circumstances, a mandatory injunction is a necessary remedy.

ORDER

[273] Based on the above findings, it is ordered that:

The defendants KJS Transport Inc. and 1707416 Ontario Inc. shall pay damages to the plaintiffs in the following amounts for their nuisance:

(a) Loss of productivity: $ 278,687.50

(b) Re-finishing: $ 2,425.00

The defendants KJS Transport Inc., Kulwant Singh, and 1707416 Ontario Inc. shall pay damages to the plaintiffs in the following amounts for their trespass:

(a) Loss of productivity: $ 23,400.00

(b) Replacement of barrier stones: $ 5,910.00

Total: $ 310,422.50

The defendants are enjoined from further trespassing upon the plaintiffs’ property.
If the parties are unable to agree on costs, each may submit written argument, not exceeding four pages in length, and a Costs Outline, by October 31, 2012.

Price J.

Released: October 17, 2012

Schedule “A”

Photos of dust from parking lot

(a) Photographs taken August 2, 2007, (nos. 8 and 9), looking from the TMS property onto the KJS property, showing a truck making a full turn, with dust rising from beneath it;

(b) Photographs taken April 20, 2007, (nos. 12, 14, 17, and 18), showing a truck entering the KJS parking lot and picking up dust and to the extreme right, TMS’s loading doors.

(c) Photographs taken May 16, 2008, (nos. 19 and 20, and 30, to 34), showing a truck entering KJS’ rear parking lot, and turning around, with a cloud of white dust rising from the back of the truck;

(d) Photographs taken May 13, 2008, (nos. 21 to 23, and 27), showing another truck entering the KJS property, turning around, and picking up dust;

(e) Photographs taken July 22, 2008, (nos. 28 and 29), showing a truck turning around with dust rising into the air;

(f) Photographs taken August 6, 2009, (nos. 75 and 76), showing a truck and trailer entering the KJS property with dust rising;

(g) Photograph taken September 14, 2009, (no. 58), from outside the TMS building, showing a truck turning around, with dust rising and blowing toward the TMS property;

(h) Photograph (no. 54), showing, to the left, a fence that KJS erected in 2009, which Mr. Bahra said made no difference to the amount of dust blowing onto the TMS property;

(i) Photographs taken November 18, 2009, (nos. 60 to 69, and 80), showing the rear of the KJS property, with dust and dirt, a KJS truck on the KJS lot, raising what appears to begin with a little dust on the left side, then more when the truck turns around and backs its trailer up to the loading docks;

(j) Photograph taken May 26, 2010, (nos. 97) and May 27, 2010 (nos. 99 to 110), showing trucks turning around and backing up, raising dust;

(k) Photograph taken June 1, 2010, (no. 94), from the door to the TMS factory, showing a truck backing up on the KJS loading dock, with dust rising and blowing onto the TMS property;

(l) Photographs taken Sept 9, 2010, (nos. 128 and 130), showing a truck turning around on the KJS parking lot, raising dust.

Schedule “B”

Photos of preventative measures

(a) A photograph (no. 171), taken at the southeast corner of the TMS factory, closest to the KJS property, shows boxes on the floor into which parts have been placed for pre-finishing. Mr. Bahra explained that the parts had to be re-packed after quality control tested them, to protect them from the dust. He explained that during the summer, when the doors were opened due to the heat, ten to twelve boxes had to be kept on the floor to avoid parts or finished fixtures becoming contaminated.

(b) A photograph (no. 175) shows finished fixtures that had been powder coated. It was winter, when the factory doors were closed, so the fixtures had been placed on a shelf for selection by the order pickers. During the summer, he explained, this could not be done because the dust entering through the open doors would contaminate the fixtures.

(d) A photograph (no. 177) shows how many components go into an architectural lighting fixture. During the summer months, Mr. Bahra explained, TMS had to keep the components wrapped because of the dust that would otherwise damage them.

(e) A photograph (no. 178) shows a completed fixture on the shelf, ready to be selected by the order-picker. Mr. Bahra explained that during the summer, the fixtures had to be placed in clear cellophane wrapping and packed in a clear plastic bag. Another photograph (no. 181) shows a fixture, packed in foam and bubble wrap, ready to be shipped to a customer.

Schedule “C”

Photos of maintenance measures

(a) Photograph 144, taken on August 6, 2009, shows TMS employees outside the factory with brooms and dust blowers collecting dust and disposing of it.

(b) Photograph 145, taken the same day, shows dust swept up at the side of the property facing the KJS parking lot, and photograph 146 shows the dumpster used to dispose of the dust. Photograph 147 shows a TMS employee beside the dumpster, with dust, and photograph 148 shows the employee disposing of the dust into the dumpster.

Schedule “D”

Photos of trespasses

(a) TMS’s photograph dated March 29, 2008, (no. 287), shows that it would be impossible for one truck to be entering the KJS parking lot and another to be exiting simultaneously.

(b) Photograph dated April 20, 2008, (no. 292), shows a tractor trailer emerging from KJS’s loading doors, with no room for another vehicle to get through. This photograph shows that it would be difficult for a truck driver to back up to the KJS loading dock without encroaching on TMS’ driveway.

(c) Photograph dated January 14, 2007, (no. 303) shows one KJS truck trying to pass another. It is evident from the photograph that it would be virtually impossible for two trucks to pass each other on the KJS lot without one of them trespassing on TMS’ property.

(d) Photograph dated March 8, 2008, (no. 298), shows TMS curb stones broken near KJS trucks, and photograph dated January 24, 2008, (no. 306), taken during the winter, shows the concrete blocks that replaced the smaller curbstones. Mr. Endlicher stated that each of the blocks weighed 1000 pounds.

(e) Photograph dated June 1, 2010, (no. 186) shows blocks moved four feet from the property line. Similar movement is shown in photographs dated June 1, 2010, (no. #189), March 12, 2009, (nos. 208 and 209,), February 2, 2009, (no. 214), December 8, 2009, (no. 221), and March 25, 2010, (no. 228).

COURT FILE NO.: CV-08-1517-00

DATE: 2012-10-17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TMS LIGHTING LTD. and BAHRA HOLDINGS INC.

Plaintiffs

and –

KJS TRANSPORT INC., KULWANT SINGH and 1707416 ONTARIO INC.

Defendants

REASONS FOR ORDER

Price J.

Released: October 17, 2012

[^1]: St. Pierre v. Ontario (Minister of Transportation & Communications), 1987 60 (SCC), [1987] 1 S.C.R. 906 (S.C.C.)

[^2]: Smith v. Inco Ltd., 2011 ONCA 628, 2011 CarswellOnt 10141, 2011 628 (ON CA), 62 C.E.L.R. (3d) 92, 107 O.R. (3d) 321, 207 A.C.W.S. (3d) 605), at paras. 43 and 45

[^3]: Tock v. St. John’s Metropolitan Area Board, 1989 15 (SCC), [1989] S.C.J. No. 122; [1989] 2 S.C.R. 1181; 64 D.L.R. (4^th) 620.

[^4]: Salmond on the Law of Torts, 17^th ed., at p. 50

[^5]: Roberts v. City of Portage la Prairie 1971 128 (SCC), [1971] R.C.S. 481, at p. 491.

[^6]: Royal Anne Hotel Co. Ltd. v. Village of Ashcroft Saito et al. v. Village of Ashcroft 1979 2776 (BC CA), [1979] B.C.J. No. 2068, 95 D.L.R. (3d) 756, per McIntyre J.A. for the Court at para. 9

[^7]: Street on the Law of Torts, at p. 212

[^8]: Royal Anne Hotel Co. Ltd. v. Village of Ashcroft Saito et al. v. Village of Ashcroft, above, at para. 9 and 13.

[^9]: Tock v. St. John’s Metropolitan Area Board, above, per LaForest J., at para. 16 and 17.

[^10]: Tock v. St. John’s Metropolitan Area Board, above, per LaForest J., at para. 18

[^11]: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2011 419 (ONCA), at paras. 80 to 83

[^12]: Antrim Truck Centre Ltd. v. Ontario (Transportation), above, at para. 86 and 87

[^13]: Antrim, above, at para. 88

[^14]: Antrim, at para. 92

[^15]: Antrim, above, at para. 107

[^16]: Walker v. McKinnon Industries Limited, 1949 105 (ON SC), [1949] 4 D.L.R. 739, [1949] O.R. 549 [affirmed 1950 285 (ON CA), [1950] 3 D.L.R. 159 [1950] O.W.N. 309; affirmed 1951 308 (UK JCPC), [1951] 3 D.L.R. 577 [1949], O.J. No. 468, at paras. 4 and 5.

[^17]: Walker v. McKinnon Industries Limited, above, at para. 35

[^18]: Waters v. McNearney 8 A.D. 2^nd 13 (1959)

[^19]: Walker v. McKinnon Industries Ltd., above.

[^20]: Smith v. Inco Ltd., 2011 ONCA 628, 2011 CarswellOnt 10141, 2011 628 (ON CA), 62 C.E.L.R. (3d) 92, 107 O.R. (3d) 321, 207 A.C.W.S. (3d) 605), at para. 40.

[^21]: Belisle v. Canadian Cottons Ltd., 1952 CarswellOnt 188, [1952] O.W.N. 114, at para. 5

[^22]: Scotia McLeod v. Peoples Jewellers Ltd., 1995 1301 (ON CA), 1995 26 O.R.(3d)481 (ON CA)

[^23]: Normart Management Ltd. v. West Hill Redevelopment Co. 1998 2447 (ON CA), (1998), 37 O.R. (3d)97

[^24]: 460635 Ontario Ltd. v. 1002953 1999 789 (ON CA), 1999 CarswellOnt 3428, 127 O.A.C. 48, [1999] O.J. No. 4071 (ONCA)

[^25]: 460635 Ontario Ltd. v. 1002953, above, at para. 9

[^26]: Labatt Brewing Company Limited et al. v. NHL Enterprises Canada, L.P., et al. (2011), 2011 ONCA 511, 106 O.R. (3d) 677

[^27]: Labatt Brewing Company Limited et al. v. NHL Enterprises Canada, above, at para. 6

[^28]: Henry v. 1213962 Ontario Ltd., [2005] O.J. No. 2132 (S.C.J.)

[^29]: Golden Hill Ventrues v. Kenness Mines Inc. [2002] B.C.J. No. 2340, 2002 BCSC 1460

[^30]: Golden Hill Ventrues v. Kenness Mines Inc. [2002] B.C.J. No. 2340, 2002 BCSC 1460, at para. 949-51

[^31]: Wood v. Grand Valley Railway Company, (1915) 1915 574 (SCC), 51 S.C.R. 283, at p. 289

[^32]: Penvidic v. International Nickel, 1975 6 (SCC), [1976] 1 S.C.R. 267, at p. 279

[^33]: Wood v. Grand Valley Railway Company (1913), 1913 26 (ON CA), 30 O.L.R. 44, at pps. 49-50

[^34]: Stellarbridge Management Inc. v. Magna International (Canada) Inc. 2004 9852 (ON CA), 2004 CarswellOnt 2065, 187 O.A.C. 78, 71 O.R. (3d) 263 (ON CA)

[^35]: B & A Bobcat and Excavating Ltd. v. Sangha, 1999 BCCA 49, [1999] B.C.J. No. 160, 1999 BCCA 0049

[^36]: B.C. Hydro & Power Authority v. Marathon Realty Co. Ltd., (1992), 1992 634 (BC CA), 89 D.L.R. (4^th) 419

[^37]: Road King Asphalt & Aggregate Ltd. v. Farr Fabricating (1985) Ltd. [2005] BCSC 911

[^38]: Road King Asphalt & Aggregate Ltd. v. Farr Fabricating (1985) Ltd. [2005] BCSC 911, at para. 134

[^39]: The Mediana [1900] A.C. 113, at 116

[^40]: McGregor on Damages, 18^th Edition, Sweet & Maxwell/Thomson Reuters, 10-004

[^41]: Twyman v. Knowles (1853) 13 C.B. 2222

[^42]: Martin v. Goldfarb 1998 4150 (ON CA), 1998 CarswellOnt 3319, 112 O.A.C. 138, 163 D.L.R. (4^th) 639, 42 C.C.L.T. (2d) 271, 41 O.R. (3d) 161, 44 B.L.R. (2d) 158, [1998] O.J. No. 3403 (ON CA)

[^43]: Martin v. Goldfarb, above, at para. 67

[^44]: Martin v. Goldfarb, above, ar para. 70 and 75

[^45]: Mynott v. British Columbia (Ministry of Transportation), 2011 258 (BCSC)

[^46]: Mynott v. B.C. (Min. of Transp), above, at para. 44

[^47]: ADGA Systems International Ltd. v. Valcom Ltd. et al. 1999 1527 (ON CA), at paras. 14 and 18

[^48]: See Mitchell v. Clarke, (1992), 1992 4670 (NS SC), 111 N.S.R. (2d) 342 (N.S. S.C.)

[^49]: Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287 (C.A.) at 322-3

[^50]: Bellini Custom Cabinetry Ltd. v. Delight Textiles Limited and 301094 Ontario Limited 2005 30314 (ON SC)

[^51]: Bellini Custom Cabinetry Ltd., above, at para. 148 and 149

[^52]: Earle v. Martin[1998] N.J. No. 353 (S.C.)

[^53]: Lewvest Ltd. v. Scotia Towers Ltd. (1981), 1981 2662 (NL SC), 126 D.L.R. (3d) 239 (Nfld. S.C.)

[^54]: Lewvest Ltd. v. Scotia Towers Ltd., above, at page 240

[^55]: G.H.L. Fridman, Q.C., The Law of Torts in Canada, Carswell 1989, p. 40

[^56]: Fridman Q.C.’s The Law of Torts in Canada, above, at page 41

NATURE OF ACTION

ISSUES

BACKGROUND FACTS

POSITIONS OF THE PARTIES

ANALYSIS AND EVIDENCE

1. Did the dust from KJS’ parking lot substantially interfere with TMS’ use of its property and constitute a nuisance?

a) The jurisprudence

(i) The legal definition

(ii) The legal test for amenity nuisance

(iii) Factors to be considered

(iv) Whether wind-blown dust can constitute a nuisance

b) TMS’s Evidence

(i) Paul Endlicher’s testimony

(ii) Suki Bahra’s testimony

(iii) Ravi Toor’s testimony

(iv) Mark Wilson’s Testimony

(v) Harold Rambaj’s testimony

(vi) David Bahra’s testimony

(vii) Admissions concerning by-law infraction

c) KJS’s Evidence

(i) Pardeep Singh’s testimony

(ii) Kulwant Singh’s testimony

(iii) Ralph Fenwick’s testimony

d) Application of the legal test to the evidence

(i) Was the interference substantial?

(ii) Was the interference unreasonable?

e) Is Kulwant Singh personally liable for the nuisance?

2. What is TMS’ remedy for the nuisance KJS created by its dust?

a) The law governing damages for loss of productivity

b) TMS’ evidence on the issue of its damages

(i) Paul Endlicher’s Testimony

(ii) Suki Bahra’s testimony

(iii) Ravi Toor’s testimony

(iv) Mark Wilson’s testimony

(v) David Bahra’s testimony

c) TMS’ evidence of damages as a percentage of revenues

(i) Paul Endlicher’s testimony

(ii) Ravi Toor’s testimony

(iii) David Bahra’s testimony

d) Application of the Law to the Evidence

e) Additional damages

3. Did KJS’ trucks trespass on TMS’ property?

a) TMS’ Evidence

(i) Mr. Endlicher’s Testimony

(ii) Suki Bajra’s Testimony

(iii) Ravi Toor’s testimony

(iv) David Bahra’s testimony

b) KJS’ Evidence

(i) Pardeep Singh’s testimony

(ii) Kulwant Singh’s testimony

4. Is Kulwant Singh personally liable for trespass?

5. What are TMS’ damages for trespass?

a) TMS’ Evidence – David Bahra’s testimony

b) KJS’ argument as to damages

c) Applying the law to the evidence

ORDER

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 1

Legal Tests 3

Legislation 1