CITATION: Moore v Smith Construction, 2013 ONSC 5260
COURT FILE NO.: DC-10-0102
DATE: January 21, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NORMA MOORE, SEAN MOORE, MIKE BATTISTON, SHAWN BURTON, GAIL SPIRITO, MARK POPIEL, BILL MACMECHAN, TERRY KRIEGER, CHERILYN OUTHWAITE and Kathy Cassant
Robert A. Peterson for the Respondents
Plaintiffs /Respondents in Appeal
- and -
SMITH CONSTRUCTION COMPANY, A DIVISION OF THE MILLER GROUP INC.
Sarit E. Batner, Kosta Kalogiros for the Appellants
Defendant/Appellant in Appeal
HEARD: January 21, 2013
REASONS FOR DECISION
James J.
[1] This is an appeal from the decision of R. Sauriol, sitting as a deputy judge of the Small Claims Court at Renfrew, Ontario dated November 3rd, 2011 wherein he granted judgment in favour of the respondents totalling $14,700 as damages for nuisance, trespass and negligence.
[2] The appellant is a large paving and construction company. It owns numerous gravel pits, quarries, asphalt and ready-mix concrete plants in various parts of Ontario. This appeal relates to a quarry owned by the appellant in the community of McNab-Braeside in eastern Ontario. The respondents are residents who live in the vicinity of the quarry. The residents commenced an action following the installation of a temporary asphalt plant at the site, complaining primarily of noise and odour alleged to be caused by the production of asphalt.
[3] The appellant or its predecessor conducted blasting, crushing and haulage activities at the quarry for several years. The appellant commenced the manufacture of hot mix asphalt in the fall of 2009. The appellant has applied for approval to expand the quarry and to install a permanent asphalt plant. The timeframe under review in this appeal is from September 28, 2011 until November 16, 2011 although the appellant continued to manufacture asphalt there subsequent to November 2009.
[4] For the reasons that follow, I have determined that the appeal ought to be dismissed in relation to the nuisance claim and allowed in relation to the claims in trespass and negligence.
Standard of Review
[5] The standard of appellate review for findings of fact made by the trial judge is based on an assessment of whether he made a palpable and overriding error. Palpable means readily or plainly seen. A palpable error is an error where it is clear that the trial judge made a mistake.
[6] The standard of review on a question of law is that of correctness. The principle of universality requires that the same legal principles be applied in similar situations.
[7] The standard of review for questions of mixed fact and law is less easily stated in unequivocal terms. A question of mixed fact and law involves the application of a legal standard to a set of facts. Matters of mixed fact and law lie along a spectrum. Where it is clear that the trial judge applied an incorrect legal standard, the standard of review is correctness. Where the applicable legal principle cannot be isolated or extricated from factual considerations, a more stringent standard is applied.
[8] The general rule is that where the issue on appeal involves the trial judge’s interpretation of evidence as a whole, it should not be overturned absent palpable and overriding error. It is sometimes said that a trial judge’s decision should not be overturned if there is some evidence upon which he or she could have relied to reach a decision. (see generally Housen v. Nikolaisen, 2002 SCC 33, 2002 S.C.C. 33).
[9] In this appeal the appellant says the trial judge made several mistakes in ignoring or misapprehending evidence that contradicted the plaintiffs’ complaints and he did not apply the law correctly.
[10] The appellant contends that the trial decision ought to be overturned for both factual and legal errors.
Grounds of Appeal
Appeal Ground #1—The trial judge erred in finding the appellant liable in nuisance
[11] This ground of appeal can be broken down into several sub-sections as follows:
a. The trial judge misapplied the nuisance test and misapprehended and ignored evidence disproving nuisance with particular reference to: i. character of the neighbourhood; ii. severity of interference; iii. sensitivity of the plaintiff
b. The trial judge failed to balance “utility” against his other findings.
c. The trial judge erred in qualifying Doctor McDonald.
[12] A nuisance arises when a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land. It often occurs in the context of conflicting activities conducted in close proximity to one another. Whether a particular act or omission constitutes a “nuisance” in the legal sense depends on assessment of four factors. They are as follows:
i. character of the neighbourhood ii. severity of interference iii. utility of the defendant’s conduct iv. whether the plaintiff displayed abnormal sensitivity
Character of the Neighbourhood
[13] Whether a particular activity constitutes a nuisance must be viewed in context. The trial judge determined that the quarry was in a rural area that had a mix of uses but which was primarily residential in character. In addition to the quarry, there was evidence of some agricultural uses and a roof truss fabrication facility. There was also evidence of a former sawmill. There were approximately 150 residences in the area but the number of residences in close proximity to the quarry was substantially less. The quarry itself was zoned as Industrial Extractive.
[14] The appellant relies upon the decision of Morden, J in Walker et al v. Pioneer Construction Co. (1967) Ltd., (1975), O.R. (2d) 35 at p. 11 for the proposition that a resident in a mixed use area has to put up with significantly more intrusion on his sensibilities.
[15] The “mixed use” referred to in Walker included 6 gravel pits and a concrete mixing plant in the general area of the plaintiff, whose home was located approximately 65 feet from a heavily travelled highway and 600 feet from the CPR main line. There were only 2 other houses in the vicinity of the plaintiff’s residence.
[16] In the present appeal there is adequate evidence to support the trial judge’s finding that the area was in his words, “much more residential than commercial” (judgment, paragraph 62). The trial judge acknowledged the presence of other uses. He did not misapprehend the evidence respecting the character of the neighbourhood.
Severity of interference
[17] The appellant states that the trial judge failed to address the duration and effect of the noise and odour generated by the asphalt plant, suggesting that 29 days of asphalt production between September and November was too short a period for the interference to qualify as substantial. Professor Friedman, in The Law of Torts in Canada, 3rd ed. (Carswell, Toronto, 2010 at page 167) notes that where the nuisance complained of constitutes an annoyance or interference rather than physical harm to property, the interference must be substantial or significant.
[18] The trial judge quoted various witnesses’ descriptions of how they experienced noise and odour emanating from the plant which he said underscored the severity of the interference that they experienced. If accepted, the words and expressions used would be indicative of substantial interference in their enjoyment of their properties. The trial judge summarized the evidence as follows:
[64]…….the noise during the day was described as noisy especially when wind was blowing in their direction, “like a “freight train,” “a fan running beside the bed,” “like being next to an airport,” “a plane idling on the runway,” “bad,” “horrible to live beside,” “louder than a diesel freightliner idling,” “place became a loud industrialized neighbourhood,” “like a big steam generator,” “slamming of tail gates,” “like sitting behind a jet engine,” “was really quiet loud,” “very annoying,” “really really bad,” “a constant noise,” “unbearable,” “louder than television or dishwasher running in the house.”
[65] The night time noise between 9PM and 7AM was from the generator and was described as “a noisy generator,” “operating throughout the night,” “loud buzz in the evening,” ”loud enough to be awakened prior to 7AM.”
[66] The odour was described as being “very strong smell,” “very objectionable,” “invading every room,” “unmistakable,” “really really bad,” “really awful,” “obnoxious odour,” “living hell.” “brutal,” “could feel it,” “tar pavement asphalt smell,” “like driveway being paved,” “over powering,” “quiet annoying,” “unbearable,” “thick pungent smell.”
[19] In my view, it was open to the trial judge to find that the noise and odour was more than transitory and that it was repeated with sufficient frequency over a sufficiently long period to be actionable.
[20] It is true that some of the testimony of the witnesses was not restricted to the period between September and November 2011. There were several instances where a witness recounted an adverse reaction to the asphalt plant or other activities at the quarry that could not have occurred within the relevant time. There were also occasions when evidence of impacts on residents prior to 2011 was elicited by counsel for the appellant (cf.K Cassanto cr-ex Page 92, line 17, page 93 line 18, Shawn Moore, cr-ex, page 67, line 1.)
[21] A fair reading of the judgment shows that the findings of the trial judge were restricted to the period under review. Triers of fact necessarily sift through the evidence, winnowing out irrelevant and inadmissible testimony. It was open to the trial judge to accept all, some, or none of the evidence of a particular witness. It is not unusual for there to be variability in the impacts recounted by different witnesses. Numerous factors such as wind direction, location, time and memory all play a role. It would be cause for concern if all witnesses told identical versions of what they experienced. I would not characterize the variability in the evidence as a processing error. There was no evidence from neighbours who claimed there was no noise or odour or that if present, it did not affect them in a significant way.
[22] The trial judge did not make a palpable and overriding error in assessing the severity of interference.
Sensitivity of the Plaintiffs
[23] The appellant’s point on this issue is that the respondents were all members of a community group opposed to the expansion of the quarry. The appellant concedes that it was open to the trial judge to find, as he did, that the respondents were not exaggerating their claims on account of political motivations. Instead, the appellant suggests that the respondents were more highly sensitized because of their political motivation and interpreted minor intrusions as obnoxious or unbearable.
[24] The trial judge addressed this issue directly as follows:
Defendant states that the plaintiffs had good reason to exaggerate their claims in order to achieve a judgment against the defendant... to accept this argument I would have to find that all plaintiffs lied under oath or grossly exaggerated their complaints... the fact that the plaintiffs belonged to (the community group opposed to quarry expansion) does not cause me to disbelieve their evidence given under oath that it was the noise and odour from the plant that caused them to start this action. (Judgment, paragraph 87).
[25] There is a lack of competing or other evidence to buttress the appellants’ contention that the plaintiffs were predisposed to report substantial interference with their day-to-day living.
[26] The trial judge did not make a reviewable error in not finding that the respondents were predisposed to be hypersensitive to noise and odour emanating from the asphalt plant.
(b) --Utility of the Defendant’s Conduct
[27] The appellant says that the trial judge erred by not engaging in a balancing of the utility of the defendant’s conduct against the interference reported by the respondent and that he drew an improper distinction between public and private entities.
[28] In my view, the appellant mischaracterizes the trial judge’s findings on this point. I agree with the submission of the respondents at paragraph 29 of their factum that the trial judge “engaged in the utility analysis and found that on its facts, the utility of the appellant’s conduct stood in stark contrast to the cases involving public utility defendants”.
[29] At paragraph 71 of the judgment the trial judge observed that in nuisance cases, even public authority defendants bear a considerable burden in establishing the defence of statutory authority (See the comments of Sopinka, J. in Tock v. St. John’s Metropolitan Area Board 1989 CanLII 15 (SCC), [1989] S.C.J. No. 122, at paragraph 93).
[30] The appellant refers to Jagtoo v. 407 ETR Concession Co., [1999] O.J. No. 4944 in support of the proposition that the fact that the appellant’s operations were required to fulfill contracts for a public authority was a relevant factor. The Jagtoo case was essentially an interlocutory injunction case and the result in Jagtoo was informed in large part by the principles governing the availability of interlocutory injunctions as enunciated in RJR McDonald Inc. v. Canada (1994), 1994 CanLII 117 (SCC), 111 D.L.R (4th) 385. In Jagtoo, the plaintiff sought to enjoin the construction of the 407 ETR in circumstances where the location, design and structure of the project had been studied for years. The approval process itself took a decade and involved extension public consultation. In addition, the project had been commissioned pursuant to the Highway 407 Act, 1998.
[31] The trial judge did not commit a reviewable error in assessing the utility of the appellant’s conduct.
(c)--Qualifying Dr. Elaine McDonald as an Expert
[32] The appellant says that Dr. Elaine MacDonald, a scientist called by the respondent to provide opinion evidence on the issue of airborne industrial pollution, should not have been qualified as an expert. The appellant’s objection is based on Dr. MacDonald’s connection with Ecojustice, the environmental advocacy group that provided legal services to the respondents.
[33] Elaine MacDonald is a professional engineer. Early in her career she worked as a consultant performing environmental assessments. She subsequently returned to school and obtained a Masters Degree and later a PhD in Environmental Engineering from McGill University. While at McGill, she performed laboratory research studying the migration of contaminates, with particular emphasis on the movement of heavy metals through soil.
[34] Since 1999 she has been affiliated with Ecojustice as a staff scientist. In the last five years most of her work has focused on various aspects of air pollution. For the last three years she has participated on a provincial panel providing input to the Ministry of the Environment on the regulation of airborne pollutants under the Environmental Protection Act.
[35] Testifying at the voir dire respecting her qualifications, Dr. MacDonald readily acknowledged that she has similar views as those to her employer on environmental issues. She acknowledged that Ecojustice uses a team approach to assist litigants who are in need of environmental advocacy support. She agreed that the “team” included both lawyers and scientists.
[36] The evidence also disclosed that Dr. MacDonald was aware of the distinction between the role of the advocate and the role of the independent expert witness. She distinguished between the advocacy function of the organization that employed her and her role at trial as a scientist. In her cross-examination during the voir dire, the following exchanges appear at pages 45, 47, 50, 51 and 52 of Volume IV of the transcript:
Q. And Ecojustice itself is a national non-profit charitable organization dedicated to defending Canadian’s rights to a healthy environment. Is that fair?
A. That sounds like it’s right off our website. Yes.
Q. It is. So Ecojustice is an advocacy group, is that fair?
A. We do advocate for stronger environmental laws. I understand that my role today is not to be that advocate, but to be an independent expert witness.
Q. So is it fair, Dr. MacDonald, that as a scientist for Ecojustice you’re part of the team and you’re part of the advocacy team that advocates on behalf of groups that you’re representing?
A. Yes. I – I do that as a scientist at Ecojustice. Once again, as I said, I understand that my role is different here today.
Q. Now you completed an acknowledgement of expert’s duty form?
A. Yes.
Q. You remember that was attached to your report?
A. Yes.
Q. And that form was provided to you by counsel I presume?
A. Um hmm.
Q. And that form is something that’s required under the Rules of Civil Procedure?
A. Um hmm.
Q. Where that’s a new requirement?
A. Um hmm.
Q. Now it’s not necessary in Small Claims Court. There’s no rule...
A. Okay.
Q. ... in the small claims rules that require it, but you signed it?
A. I did. I think it was called Form 53.
Q. Yes.
A. I don’t – I don’t have a copy of it...
Q. Well...
A. ...unfortunately, but...
Q. ... I do.
A. ... that’s the way I remember it. Okay.
Q. And I’ll give you a copy. Sorry, I don’t have an extra, but I’ll show you the copy I have.
A. Yes.
Q. Okay?
A. Um hmm.
Q. And you signed this?
A. Um hmm.
Q. And had you signed one of these before this case?
A. No.
Q. Okay, and under item 2, you state you’ve been retained by the plaintiffs, do you see that?
A. Um hmm.
COURT CLERK: Excuse me Your Honour. I need yes or no answers for the record(ph).
A. Ah yes. Yes.
MR. MCKENNA: Q. And this just a minor point, but it would be more appropriate to say Ecojustice was retained by the plaintiffs? You didn’t have a separate retainer with the plaintiffs?
A. Well it says name of party(ies) so I think I was just following the...
Q. Rule – okay.
A. ...the form.
Q. Fair enough, and you see under item 3a, you’re acknowledging that your duty is to provide opinion evidence that is fair, objective and unpartisan?
A. Um hmm.
Q. Okay, and I’m going to submit to you, Dr. MacDonald, that as a member of Ecojustice it’s impossible for you to be nonpartisan?
A. Is that a question?
Q. Well, I’ll put it to you as to why I believe that’s the case and you can agree with me or disagree with me?
A. I – I disagree. I – if you read my report, I cited the literature and I also cited where there were doubts in the literature to try and be as fair as I could. Um, and then based on the literature I formulated a – an opinion, but I never made – I never put my opinion in a way which was of a certainty. I always said there is doubt. There’s always doubt in science so I really – I did my best to try and put the blinders on and form a nonpartisan position.
[37] In re-examination the witness was asked as follows:
Q. Dr. MacDonald, I think my friend established that you support environmental protection and have, in general, supported the objectives of Ecojustice Canada, so my question to you is what would you do if an Ecojustice lawyer came to you and asked you to misrepresent science in order to serve a client’s cause?
A. Well I’d absolutely wouldn’t do it. You know, I’m a professional engineer. I’m a scientist. I’ve – you know – it’s – I just wouldn’t do it. My first responsibility is to my – my own integrity in my profession, so no, I wouldn’t do it.
Q. Okay. Do you have any financial interest in this case.
A. No, I’m salaried. So whether I’m working on this or I’m working on something at the office, it doesn’t really make any difference. I – I – I’m not receiving any funds specific to this.
Q. And were you required to take on this case?
A. No. No I was not required. In fact, it’s not – the case isn’t really a high priority case within Ecojustice because it’s not a precedent setting case so to speak, so I actually have – you know, there’s no real pressure at all for me to – to take on this work.
[38] In his ruling following the voir dire respecting Dr. MacDonald’s qualifications, the trial judge concluded that she should not be disqualified as an expert by reason of her employment with Ecojustice.
[39] The trial judge noted that the Small Claims Court Rules do not specifically contain any reference to expert witnesses but he referred to Rule 1.03(2) and noted that the court may give directions or make any order by analogy to the Courts of Justice Act and the Rules of Civil Procedure if a matter is not covered adequately by the Small Claims Court Rules. He concluded that because the Small Claims Court Rules are silent on the issue of expert witnesses, it was not open to him to analogize. He then referred to Rule 1.03(1) of the Small Claims Court Rules and said:
“There is no rule covering expert witnesses’ testimony, so we have to look at the most just, expeditious and least expensive determination of this proceeding. If Dr. MacDonald is not allowed to testify simply because she is employed by Ecojustice, then that means that the plaintiffs may be forced to go and get an outside expert at considerable cost. Counsel have indicated that the defendant intends to call experts, and the plaintiff should be allowed to call experts of their choice. So I am going to allow Dr. MacDonald to testify as an expert.” (Appellant’s Appeal Book and Compendium, Volume I, page 132).
[40] With respect, I do not agree. It is precisely this type of situation that Rule 1.03(2) was designed to address. It was open to the trial judge to refer to the Rules of Civil Procedure by analogy on the issue of expert witnesses if he felt guidance was required or appropriate.
[41] The test for admissibility of evidence from expert witnesses is determined according to the application of four criteria: Necessity in assisting the trier of fact, relevance, a properly qualified expert, and an absence of any exclusionary rule that would be offended by the admission of the evidence. (See Paciocco and Stuesser, Law of Evidence, 5th edition, page 192).
[42] The court has a residual discretion to exclude evidence even if it otherwise meets the criteria for admissibility. The exclusion of evidence from an otherwise qualified expert witness on the grounds of lack of independence and impartiality falls within the perview of this residual judicial discretion.
[43] Lack of independence and impartiality may also affect the reliability of the proffered evidence. Reliability is an essential component of admissibility although reliability in the context of expert witnesses often refers to novel scientific theories or techniques. (See R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239 at para 27).
[44] There is no rule, however, that a person who is employed by, or who shares similar views with a party to the litigation, is automatically disqualified.
[45] In R. v. INCO Ltd. (2006), 2006 CanLII 14962 (ON SC), 80 O.R. (3d) 594 (S.C.J.) the Crown appealed a successful defence motion for a non-suit at the conclusion of the Crown’s case after a ruling by the trial judge prohibiting a government employee from giving expert evidence. One of the grounds of appeal challenged the trial judge’s decision not to permit a scientist employed by the Ministry of the Environment to testify for the prosecution respecting charges against INCO under the Ontario Water Resources Act.
[46] The trial judge did not permit a voir dire respecting the qualifications of the witness which were acknowledged. The issue for the trial judge was his impartiality. The following is an extract from his reasons for decision quoted at page 607:
Experience and education in this matter are not an issue. Mr. Mak has ample of both. The question here is the matter of impartiality or independence.
Mr. Mak is not only employed by the Ministry of the Environment, but is attached to and intimately concerned with the day-to-day operations involving investigations and enforcement by instructions to and education of other members of the Branch and including experts. I have no doubt that Mr. Mak is an honourable person. I have no doubt that he would attempt to be honest and fair in his testimony, and in giving his opinions, but he is not being proffered in the same light as those government expert/employees such as, first instance, work in the Centre of Forensic Sciences, the Ministry of the Solicitor General, with which I am probably aware of more than other experts that are preferred by the government in prosecutions. These experts are used not only extensively in prosecutions, but also to a very large degree by the defence bar of Ontario and I dare say outside of the province and even the country. They do not have that connection as does Mr. Mak. They do not gather, direct or instruct as does he. His position, in my view, could only be perceived by the public as capable of lacking independence.
There is nothing in the evidence to suggest actual bias, but his position does not lend to the appearance of professional objectivity. In my view, who pays him, who assesses him, is no more relevant than who pays and who assesses experts from the Centre of Forensic Sciences. That is not in consideration in this case.
Basically, the bottom line here is that there is not the separation between Mr. Mak and the Crown/Prosecution that ensures the vital appearance of impartiality. He will not, therefore, be permitted to testify as an expert.
[47] On appeal, Hennessy, J held that the trial judge ought to have tested his concerns respecting lack of impartiality by conducting a voir dire. At paragraphs 42 and 47 she said:
[42] The independence required of experts may be the subject of special inquiry, particularly where an "in-house" expert is proffered by one of the parties. The inquiry requires that the trial judge, on a voir dire, look beyond the witness's employment relationship or retainer and consider the basis on which the opinion is proffered. Unless the terms of the retainer make the witness an obvious "co-venturer" with the party, as in the case where the witness worked on a contingency fee arrangement which was dependent on the outcome of the case, the trial judge must examine the actual opinion evidence to be offered in a voir dire. The proposed expert's independence can be tested in the usual way, by cross-examination on his or her assumptions, research and completeness. The trial judge can then assess whether the expert has assumed the role of advocate.
[47] There was no finding in this case, nor was there any evidence that Mr. Mak had ever been an advocate for the Ministry. Nor was Mr. Mak shown to be a co-venturer, as in Bank of Montreal. He has a technical role as a scientist in his employment and he was proposed as an expert to give technical and scientific opinion evidence. The prohibition against expert witnesses assuming the role of advocate is well founded in case law, but has not been extended to a prohibition against qualifying a witness as an expert merely because that witness is employed by a party to the litigation. The mere fact that the proposed expert is employed by the party can be taken into account when the trial judge assesses the weight and value of the evidence.
[48] In the present appeal the appellant’s concern respecting Dr. MacDonald’s lack of independence was thoroughly canvassed on the voir dire and was highlighted for the trial judge to consider. He was alerted to the need for vigilance in assessing the evidence of this witness. The appellant does not point to any evidence in examination-in-chief or in cross-examination where bias or partiality is manifest.
[49] In my view the trial judge did not make a reviewable error in permitting Elaine MacDonald to provide opinion evidence.
Other Grounds of Appeal
[50] Having determined that the appeal of the trial judge’s finding of liability in nuisance ought to be dismissed and there being no suggestion that the measure of damages varies depending on whether liability is based in nuisance, trespass or negligence, the respondents submit that it is unnecessary to consider the additional grounds of appeal that focus on the findings of liability in trespass and negligence.
[51] Due to the possibility of further litigation between some or all of these parties on the same issues for different time frames, a review of the trial judge’s findings of liability in trespass and negligence is warranted.
Appeal Ground #2 – Liability in Trespass
[52] The trial judge found the appellant liable in trespass because the noise and contaminants causing odour were emitted from the plant.
[53] The appellant notes that there is a clear distinction between the torts of nuisance and trespass. One point of differentiation relates to direct or indirect intrusions. The appellant contends that the trial judge misapplied the law of trespass and failed to conduct a full analysis of the elements of this cause of action.
[54] While the respondents agree with the characterization of trespass as a direct, physical invasion either by a person or some tangible object, they seek to distinguish this case from the situation in Smith v. INCO Limited, 2010 ONSC 3790. In Smith v. INCO the court found that nickel particles were emitted from the defendant’s refinery and contaminated the surrounding soil. The court was referred to Eureka Oils Ltd. v. Colli, 1983 CanLII 3749 (MB QB), 25 Man.R. (2d) 166 (Q.B.) where salt water leaked from a metal tank onto the plaintiff’s land. This was held to be an indirect intrusion and the claim was allowed in nuisance but not in trespass. Similarly, in Southport Corporation v. Esso Petroleum Co., [1954] 2 Q.B. 182 (C.A.) an oil tanker discharged oil into the sea that washed ashore on the plaintiff’s land. A claim in trespass was not permitted. Reinforced by these authorities, J.R. Henderson, J. concluded that the emitted nickel particles constituted an indirect intrusion and the claim in trespass was dismissed.
[55] I do not agree with the respondent’s suggestion that there is a meaningful difference between the airborne migration of nickel particles over many decades and the noise and odours emanating from the asphalt plant.
[56] I have also considered the decision of Shannon, J. in Kerr v. Revelstoke Building Materials Ltd. (1976), 1976 CanLII 1168 (AB KB), 71 D.L.R. (3d) 134. The culprit in this case was a wood planing mill complete with chipper and debarker equipment located in close proximity to the plaintiffs. The court found that the plaintiffs were inundated with smoke, sawdust, fly ash and noise, such that liability in trespass and nuisance was established. A close reading of paragraph 11 of the decision supports the view that the trial judge differentiated the physical nature of the sawdust and fly ash from objectionable sounds in his finding of liability in trespass.
[57] In my view, Smith v. INCO is more consistent with the jurisprudence respecting the elements necessary to establish the tort of trespass. In this case, the nature of the intrusion was indirect because the noise and odours were emitted from the asphalt plant rather than being directed or placed on the neighbouring land by the appellant. Also noise and odour are not “tangible objects” in the context of the law respecting trespass.
[58] This aspect of the appeal ought to be allowed and the finding of liability in trespass set aside.
Ground #3—The Trial Judge erred in finding the appellant negligent
[59] The appellants appeal of the trial judge’s finding that it was negligent consists of two elements:
a. Application of the wrong standard of care and;
b. Failure to consider causation and damages; and
c. Evidence the appellant was within standards.
The Standard of Care
[60] A finding of liability in negligence is a question of mixed fact and law that is entitled to deference upon appellate review (Housen, supra, para. 29).
[61] The appellant contends that the trial judge failed to articulate the elements of the requisite standard of care. The standard of care is to be determined in the context of an ordinary, reasonable and prudent person in the position of the appellant. There is no indication in the trial judge’s reasons that he applied an incorrect standard of care.
[62] I do not agree with the appellant that the trial judge committed a reviewable error when he determined that the implementation of the voluntary abatement program was indicative of a breach of the applicable standard of care. On my reading of the decision, the trial judge utilized the evidence of the abatement program as evidence of an initial failure to take reasonable care (see Sandhu v. Wellington Place Apartments, 2008 ONCA 215, [2008] O.J. 1148 (C.A.) at para. 56). There is no rule that evidence of subsequent remedial measures are inadmissible on policy reasons (Sandhu, Ibid, para. 58-60).
Failure to consider causation and damages
[63] The appellant contends that the law of negligence only addresses certain types of harm, namely, personal injury, proper damage or psychological harm.
[64] The respondents do not refer to any authorities that challenge this view.
[65] The law of negligence does not extend compensation to victims who have suffered irritations or annoyances that do not amount to injury (see Moustapha v. Culligan of Canada Ltd., [2008] S.C.R. 114). If the annoyance is substantial enough and is connected in some way to unreasonable uses of land, the remedy is found in the law of nuisance.
[66] There is no suggestion in the evidence that any of the respondents suffered personal injuries or property damage to an extent that justifies compensation under the law of negligence. I would allow the appeal of the finding of liability in negligence.
Failure to Consider and Misapprehending Evidence appellant within Standards
[67] The appellant contends that the trial judge erred by ignoring or rejecting without explanation evidence that Miller was operating within the standard of care.
[68] The appellant incorrectly argues that compliance with applicable standards displaces the possibility of being found liable for negligent conduct.
[69] As stated in Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] S.C.J. No. 7 at paragraph 29, legislative standards are relevant to the common law standard of care but the two are not necessarily co-extensive. I would add industry practice to this proposition as well.
[70] In Atwell et al. v. Knights, 1967 CanLII 323 (ON SC), [1967], 1 O.R. 419 (H.C.J.), Stewart, J. explicitly accepted the evidence of neighbours over the findings by the local health unit inspector and a representative of the Air Pollution Control Division of the then Ontario Department of Health on the issue of the presence of noxious odours. However, considering that I have determined that the respondents did not sustain personal injuries or property damage that is compensable under the law of negligence, it is unnecessary to further examine this aspect of the appeal.
Disposition
[71] The appeal is allowed with respect to the findings of liability in trespass and negligence.
[72] The appeal is dismissed with respect to the finding of liability in nuisance.
[73] The notice of appeal states that the trial judge erred in assessing damages but the damages issue is not addressed in the appellant’s factum and was not pressed at the hearing of the appeal. I am not inclined to make any adjustments to the amounts awarded by the trial judge and the appeal as it relates to damages is dismissed.
[74] If the parties are unable to agree on costs, the respondents may deliver a bill of costs and a costs outline within 20 days. The appellant shall have 20 days to respond and a final reply by the respondents, if required, shall be delivered 10 days after their receipt of the appellant’s costs submissions.
Mr. Justice Martin James
DATE RELEASED: August 15, 2013
CITATION: Moore v Smith Construction, 2013 ONSC 5260
COURT FILE NO.: DC-10-0102
DATE: January 21, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NORMA MOORE, SEAN MOORE, MIKE BATTISTON, SHAWN BURTON, GAIL SPIRITO, MARK POPIEL, BILL MACMECHAN, TERRY KRIEGER, CHERILYN OUTHWAITE and Kathy Cassant
Plaintiffs/Respondents in Appeal
- and –
SMITH CONSTRUCTION COMPANY, A DIVISION OF THE MILLER GROUP INC.
Defendants/Appellants in Appeal
REASONS FOR JUDGMENT
Mr. Justice Martin James
DATE RELEASED: August 15, 2013