CITATION: Powell v. Dowsley, 2016 ONSC 1951

COURT FILE NO.: CV08-0889

DATE: March 18, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Rose Powell, Ian Powell and Tanya Powell

Plaintiffs

– and –

Kent Dowsley and Robert Dowsley

Defendants

Donald R. Good, for the Plaintiffs

Stephen S. Appotive and Colin Wright, for the Defendants

HEARD: February 8, 9, 10, 11, 12 and 23, 2016 (at Brockville)

REASONS FOR JUDGMENT

PEDLAR, J

Background

[1] This is an action for both damages and injunctive relief brought by the Plaintiffs against their neighbours, the Defendants. The claim is based in nuisance related to the operation of an outside wood burning furnace located on the Defendants’ premises.

[2] Counsel for the Plaintiffs, as well as counsel for the Defendants, related to the claim for damages, each filed very helpful summaries of the evidence and closing submissions. So far as those submissions relate to my findings of fact, I will quote from them during the course of this judgment. The other counsel for the Defendants endorsed the submissions of his co-counsel and focussed on the issue of the claim for injunctive relief.

[3] The Powell and Dowsley families have owned adjoining farm properties for generations. The Plaintiffs’ farm lies immediately east of the Defendants’ farm. Both farms front onto Second Concession Road as shown in Exhibit Number 1.

[4] It is agreed that these properties are located in a rural setting where agriculture is an important industry. Prior to the commencement of this action, the Plaintiff, Rose Powell and her late husband, were no longer actively farming and were renting their fields to a neighbour, Murray Allin, as pasture for his cattle. The Defendant, Kent Dowsley, is employed full time off the farm and carries on a part time farming operation as well.

[5] It is acknowledged that wood is a very common source of heating fuel in this rural area.

[6] Prior to October of 2007, the Defendant’s farmhouse was being heated with two indoor wood appliances with electric baseboard backup. For many years up until November 2008, the Powell farmhouse was heated by two wood indoor stoves during the day, supplemented by oil heat from a central furnace overnight.

[7] At the end of October, or in early November, of 2007, the Defendants replaced their indoor wood heating system with an outdoor wood burning furnace (“OWF”). It was located 75 feet south of the Dowsley farmhouse between the garage and barn. Except for the first heating system, it was located 150 feet to the west of the lot line between the Powell and Dowsley properties, placing it 700 feet to the west of the Powell farmhouse.

[8] It is common ground that prior to the installation of this OWF, there were no complaints about smoke or odour from the Dowsley home using wood as a heating source affecting the Powell residence in any way.

[9] The initial installation of the OWF was 133 feet from the property line with the Powells. At the time the Defendants installed the OWF, they were not aware of a Municipal Bylaw governing the installation of such heating sources in their township.

[10] The Defendants applied for a building permit with a minor variance to allow the OWF to remain at its initial location, which was 17 feet closer to the property line between themselves and the Powells than allowed by the bylaw. This application was refused by the Township and the OWF was allowed to remain in its initial location for the balance of that first heating season and then it was relocated by the Defendants to meet the requirement of a 150 foot setback from the said property line. The relocation was completed prior to the heating season beginning in the fall of 2008.

[11] Almost immediately after the installation of the OWF, the Powell family complained of smoke and odour coming into and around their home. Their evidence is this smoke and odour was completely different from that experienced from the longstanding house stoves and fireplace previously operated by the Defendants. They opposed the original location of the Defendants’ OWF and sought to have the Township order that the building permit, require relocating the OWF 150 feet back from the boundary line between the parties. They also asked the Township to shut down the Defendants’ OWF as a result of the increased presence of smoke and odours from its operation. The Township refused the Powells’ request and allowed the Defendants to install the OWF at a location within the requirements of their bylaw.

[12] I found much of the evidence presented in this case to be confusing, hard to reconcile with other evidence and, at times, even perplexing. Without detailing all the evidence, it is necessary to review portions of it. One of the Plaintiffs, Rose Powell, gave evidence that prior to the installation of the OWF by the Defendants, she did not experience any problems with smoke or odour coming from their property. She reports an immediate and dramatic change after the installation of the OWF by the Defendants. She complained immediately to the Township, including a complaint that she could smell garbage burning. She did not observe it being put in the OWF, but it was a distinctive odour that drew her to that conclusion.

[13] Rose Powell kept extensive notes of her observations of smoke and odour, as well as the impact it had on her. Many of those observations include her visually identifying the source of the smoke of which she is complaining as being the Defendants’ OWF. She does, from time to time, note that the smoke is being directed away from her property when the wind was coming from the east, but her predominant complaint is of smoke or odour interfering with her enjoyment of the property. She retained a lawyer from Kingston to write to the Township objecting to the installation of the OWF. That letter is part of Exhibit 3 at Tab 5, on page 13.1. It sets out the complaints of the Plaintiff family relating to the smoke and odour coming from the Defendants’ OWF.

[14] The journal entries by Rose Powell were admitted by me as a practical way of getting the evidence recorded by her before the Court. I drew an analogy to an exception to the hearsay rule when evidence is admitted based on the principles of necessity and reliability. Counsel for the Plaintiffs acknowledged that to allow her to review every entry individually would have taken the five days we had originally scheduled for the hearing of the entire trial and the defence objected to her simply reading in journal entries of which she obviously had no specific memory of what had happened on that day. After a few hours of struggling through that process, I allowed the documents to go in as exhibits subject to cross-examination and subject to a ruling as to their weight to be given to the written notations made by Rose Powell.

[15] The Defendant, Kent Dowsley, gave evidence that he never used the OWF during the summer months. He claims to have put a pail on top of the stack at one time and Rose Powell acknowledges seeing a pail on top of the stack but still claims she could smell smoke from the OWF.

[16] There were several examples brought out in the evidence of others attending at the Powell property and not reporting any adverse odour or smoke on specific dates when Rose Powell made allegations about the same. Some examples of complaints by Rose Powell of the impact on her of the operation of the Defendants’ OWF, while the OWF was, in fact, not operational, as confirmed by independent sources, make Rose Powell’s complaints difficult to connect to the Defendants’ OWF.

[17] For instance, on September 14, 2009, in response to continued complaints by Rose Powell, the Defendant, Kent Dowsley, emailed Natalie Matthews from the Ministry of the Environment advising that his OWF had been closed down since early May of that year as demonstrated by Exhibit 3, Tab 47. Moreover, he proposed to Ms. Matthews that they chain lock his OWF and he would give the only keys to that lock to Natalie Matthews to see if Rose Powell continued to register any complaints while the OWF was so locked. In fact, that is exactly what happened as confirmed by Exhibit 3, Tab 50.

[18] On June 15, 2010, Rose Powell called the Ministry of the Environment to complain to Natalie Matthews about smoke from the Defendants’ OWF being all about her property. Thirty minutes later, a representative from the Ministry of the Environment attended at her property and made no such observations. In fact, to the contrary, the Ministry personnel noticed on that day that the Defendants’ OWF was closed and not operating. I find that, at least on those two specific occasions, that it is not possible to connect the Defendants’ OWF as the source of any discomfort being experienced by the Plaintiff, Rose Powell. That evidence then falls into the category of being mystifying. It would appear, from Exhibit Number 1, that the only other OWF in the vicinity in the Plaintiffs’ residence is located approximately one-half mile away from the Plaintiffs’ residence to the north and slightly east, clearly not in the path of the prevailing westerly winds, as described in evidence. That OWF is also described as being used to heat an outdoor swimming pool in the non-heating season. So it would be a matter of pure speculation, devoid of any reliable evidentiary basis, to make any finding on a balance of probabilities about another possible source to explain the discomforts complained about by the Plaintiff, Rose Powell. It is clear, however, that the source on these two occasions was not the Defendants’ OWF.

[19] After the trial during submissions, counsel for the Plaintiffs, for the first time, did concede that the Defendants had established, on a balance of probabilities, that their OWF was not functioning beyond the normal heating season between the months of October and April each year. The proposed resolution for then dealing with the perplexing evidence of Rose Powell’s complaints beyond the heating season is to simply ignore that portion of her evidence and restrict the claim to the heating season each year.

[20] I find that in order to properly assess the evidence in this case, it is necessary to consider all the evidence and put it in the context of the entire story surrounding the legal issues to be resolved. In order to understand what weight can be given to Rose Powell’s evidence, including her journal entries, they must all be viewed along with all the other evidence available to the Court in this case.

[21] The Defendants also produced Exhibit 18, which is a video taken by the Defendant, Kent Dowsley, during the week of March 9, 2010. The video demonstrates how a wind coming from the east carries the smoke away from the Powell property different times during that week. There is evidence that during the course of that week Rose Powell did call Natalie Matthews with complaints of smoke and odour despite evidence that wind from the east would produce conditions where the smoke and odour was not experienced at the Plaintiffs’ residence. The Plaintiffs, in response, point out that the videos only show conditions as they existed for a relatively brief time on several occasions during that week and that it is common for winds to shift during the course of a day. I accept that qualification on the value of Exhibit 18. The flume of smoke, however, is shown as being sporadic, white in colour and within the estimated length of ten to thirty feet in distance, all of which is consistent with the evidence of Kent Dowsley.

[22] Rose Powell also gave evidence that she can see the smoke and smell the horrible odour from the Dowsley OWF when no one else can, except possibly her co-Plaintiffs. She acknowledged that she would not expect other family members, such as Nancy or Nelson Powell, Township staff, Ministry of Health staff or Ministry of the Environment staff to see the smoke or notice the odour.

[23] Tanya Powell, one of the Plaintiffs herein, provided evidence that prior to the installation of the Defendants’ OWF in 2007, she had no complaints about smoke or odour from the property causing any discomfort to her while she resided with her mother, Rose Powell, at the Powell home. She confirmed the presence of both smoke and offensive smell beginning with the installation of the Defendants’ OWF in October of 2007. Her evidence was that beginning in or about 2004, because of her respiratory ailments, she had begun to sleep twelve months of the year in an outbuilding located some 50 feet from the Powell farmhouse. The outbuilding had no heat or running water. She stated she made the move to the outbuilding because the “cold fresh air” helped with her respiratory problems. She stated she did complain to the other residents of the home from time to time about the operation of the two woodstoves while they were operational in that residence. She also stated if she had been living on her own in the farm house, there would have been no woodstoves.

[24] Tanya states that shortly after the Defendants began to operate their OWF, she complained about the impact it was having on her and other family members. She testified that Kent Dowsley stated that he would not move the OWF. It was pointed out to her at her examination for discovery, her evidence was that Kent Dowsley said he could not move his OWF. That is an obvious inconsistency in her evidence, between what was given on examination for discovery and at trial.

[25] Tanya also testified that her dealing with Natalie Matthews were frustrating and described them like hitting a brick wall. She stated they were not productive to the point that by 2009, she was “afraid” of going to meet with Natalie Matthews at the Ministry of the Environment premises in Kingston.

[26] In her examination in-chief, Tanya Powell also indicated that the smoke and odour continued year round, not just during the heating season.

[27] In reviewing her evidence, it is obvious that Tanya was under considerable emotional distress during some of this time. In August of 2008, she fell off a ladder and suffered significant injuries, including fractures to her shoulder and pelvis. She spent a month in hospital in Kingston and was then moved to Brockville where she remained in hospital until moving into a motel that was able to accommodate her and her wheelchair. The only washroom in the Powell house was up sixteen stairs on the second floor and it was clearly not feasible for her to return to that residence at that time.

[28] Rose Powell gave evidence that on or about November 15th, 2008, she and her husband had moved into a rented bungalow in Mallorytown after living at the same hotel facility into which Tanya had moved. Rose Powell stated that her husband needed a residence with a ramp, which was constructed by a relative to make the bungalow accessible for him. Tanya made the decision to move in with her mother and father into that residence and has not returned to the farmhouse since. She also successfully applied to have the rent paid for that residence based on a disability claim related to her mobility issues. Although she gave evidence at trial that her reason for not returning to the farmhouse was the smoke and odour from the Defendants’ OWF, it is clear that there were other primary considerations, which were much more influential in that decision made in November, 2008.

[29] There were a number of discrepancies between her evidence at the time of the examination for discovery in March of 2010 and her evidence at trial. She stated at trial that she was having a “bad day” on the day of the discoveries. Although this was approximately one year after her father’s death and a year and a half after her accident, it would have been helpful for either Tanya or her counsel to have put something on the record at the time of the examinations to reflect any concerns in that regard.

[30] The evidence of both Rose and Tanya Powell that their neighbour, Murray Allin, whose residence is over 4,000 feet downwind from them, operates an OWF which causes them no discomfort, was proven incorrect when Mr. Allin gave evidence on behalf of the Plaintiffs and stated that he does not have an OWF operating on his property. That discrepancy is not particularly significant in terms of the substantive issues in this trial, but may be relevant to their credibility in terms of overstatements or assumptions made based on incorrect facts.

[31] Ian Powell, date of birth, April 4, 2000, who is Tanya Powell’s youngest child, gave evidence that he lived on the farm after his birth up until he was eight years of age in 2008. He confirmed that the farm was heated with two woodstoves and oil furnace and said the air quality was fine up until the Defendants installed their OWF in late 2007. He confirmed that when the furnace was operating, he could smell smoke at the Powell residence. He stated he couldn’t breathe properly and couldn’t go outside to play as he would get choked up. He stated on one occasion he was up on the hill on the Powell property allowing him to observe the OWF operating on the Defendants’ property and he saw smoke coming from the Defendants’s OWF coming over to the Powell property diagonally over the hill. He began staying inside the house until his mother’s accident in 2008.

[32] He confirmed that he lived with his mother at the Caigers Motel and that they were planning to return to the farm but his grandmother, Rose Powell, called to say the smoke was too bad for them to stay at the farm. After the fall of 2008, he visited the farm from time to time and on those occasions is required to use his inhalers more often as he himself has experienced from a very early age. He has never observed anything other than smoke coming from the Defendants’ OWF.

[33] Murray Allin was a neighbour approximately two kilometres to the east of the Powell, rents virtually all of their property for pasture which he has done since 2006. He confirmed he does not have an outdoor wood furnace but does use wood as a source of heat in a fireplace located inside the house. He confirmed that the wind in the area is predominantly from the west. He does not attend at the Powell residence much after November when his cattle are brought back onto his own property for the winter season.

[34] He gave evidence that on three occasions he has driven up the Powell’s laneway and parked in the general vicinity of their house and noticed smoke and a very pungent odour which was quite unpleasant. Other times, when he’s been there during the heating season, there would sometimes be smoke in the air but nothing noticeable. In the summer, he can’t really say he’s noticed anything and nothing of significance in the spring or fall that would really have any effect on him. When asked to describe what he meant by a “pungent” odour, he stated he doesn’t have much experience with OWFs but he would compare it to a campfire that was started with green wood. He noticed smoke coming along the surface of the ground no more than ten feet high. He said the geography of the terrain is that there is a thirty-foot high rock outcropping that runs somewhere around 250 to 300 feet in width. He noticed smoke going around that terrain towards the Powells’ house. His observations were made in the heating season and on three occasions, he smelled smoke that was not problematic and on another three times, it was like a campfire started with green wood and was an acidic smell.

[35] Trevor Carpenter, who is a handyman who does odd jobs, helping out on farms in the area, gave evidence that he has been at the Powell residence on numerous occasions doing jobs like mending fence, patching the roof and fixing shed for cattle. He stated he has been there in the winter months on occasion and at times has noticed a heavy grey cloudy smoke coming around the rocky area right at the house.

[36] He also stated he has observed a grey dark residue which he described as a smoke-like substance on the Powell house which rubs off on clothes and anything that touches it. He stated that substance is not just on the roof but also the sides and referred to it as soot. He has not seen it every time that he is there and sometimes it is more prominent than others. He was not sure about timing but stated he saw it at least four to five years ago.

[37] He described the smoke as having a rough odour, either like someone is burning green wood or wood with a chemical in it. He stated it was a dark smoke. The last time he was on the Powell residence was last year. He has not been there in 2016 yet. On his recent visits, he had not noticed any smoke. Many of his visits are just checking for the electrical fence and fence lines and then he leaves quickly.

[38] Nancy Powell, a daughter of Rose and sister to Tanya Powell, also gave evidence. She has continued to reside in the farmhouse at the Powell residence, and does so up until the present time. Her evidence was that from the time the Defendants’ OWF began operating in November, 2007 until the summer of 2015 she was not affected by any smoke or odour of smoke emitted from the Defendants’ property. She states that changed about six months before trial.

[39] She also described in some detail how something that appears to her to be soot gathers on the cars parked at the Powell farm, as well as on the exterior of the house and is evident even inside the house. She stated that some dishes that are kept in a display cabinet and belong to Rose Powell, the owner of the property, will periodically require washing to remove the soot that has gathered on them inside the house.

[40] She also stated that she periodically gets her car “detailed” including having the interior dashboard cleaned of soot. She confirms observing the smoke coming over onto their property beginning in the last fall of 2007 as they are located east of the Defendants’ property and there is a prevailing west wind in the area. She described the smell from the OWF as being different from woodstoves in the house. She stated it was putrid and more condensed. It was a different smoke and it followed the contour of the land.

[41] She is the only person living on the Powell farm right now. Her son, Nelson, had been living with her up until the last couple of years. In the last year, she has experienced the taste on her mouth that her mother, Rose Powell, had talked about. It is a change in her tongue which tingles and hot spicy foods have no impact. She states she can smell smoke on the north side of the house when she gets up in the middle of the night. She described the smell as a rubbery burning smell. She states she could smell the soot and it is not a pleasant smell. She also stated that unlike dust which is a light brown colour, the soot in the house is now a black tar-like substance. She states her voice has been changing in the last year and she attributes that change in her inhaling smoke from the Defendants’ OWF. She states that she has no problem with other neighbours, being the Donovan’s or the Allin’s, burning wood on their property. She only smells the smoke at the time when there is a west wind.

[42] She also stated that the woodstoves in the Powell farmhouse have not been used since 2008 when the other family members moved away.

[43] In the summer months, she does not get the smell of smoke strongly as she does in the winter, but she states that the soot continues to be deposited on her vehicles and appears to affect the leaves on the maple trees by leaving black spots on them. She states the soot gives a musty rubber-like smell to her cars until they are detailed. She has lived on the farm for about 45 years, being away to college during the 70’s and 80’s and returning ten or fifteen years before 2007.

[44] It was her evidence that the Defendants’ OWF operated 24/7 all summer as well as during the heating season. She stated she is unable to see it because of the leaves on the trees but does experience the same smell in the summer as in the winter time. Her evidence also was the soot did not accumulate until the last three or four years outside the house and inside the house the last couple of years. She did not notice the soot on her vehicles until recently and after she gets her vehicle clean, the soot does come back in the summer although it is not as thick as she had noticed just recently before giving her evidence.

[45] The issue was raised as to whether the Donovan OWF may be the source of the soot at the Powell residence, at least during the summer when clearly the Defendants’ OWF is not operating. That seems very speculative to me, taking into account there is over 2,500 feet of distance between the Donovan furnace and the Powell house. The Defendants’ property right next door make no complaints about soot in the summer that could be attributed to the Donovan’s OWF. Admittedly, the Dowsley property is immediately to the west of the Powell property and a prevailing west wind may have some impact on that. There has been no evidence as to at what point in time the Donovan OWF began operation as it relates to Nancy Powell’s evidence that this soot problem has arisen only in the last few years. For the purposes of this trial, taking into account the fact that the Defendants’ OWF is clearly not operational during the summer months, that OWF is eliminated as a source for this soot during the non-heating season and I am in no position to make any finding as to the source of that soot, based on the evidence produced during this trial.

[46] Another significant issue in the trial relates to the medical history of the three Plaintiffs, all of whom have suffered various degrees of respiratory problems for many years. Ian Powell has suffered since he was an infant. He only resided at the Powell farmhouse until he was eight years of age and has not returned other than for occasional visits. Rose Powell moved to the Powell farm in the mid-1950’s when she was about 20 years old. At about the same time, she was diagnosed suffering from severe bronchitis. She describes herself as feeling like “an old lady constantly suffering from the croup”. She continued to be afflicted with severe respiratory problems for decades prior to the installation of the Defendants’ OWF and those respiratory problems have continued. Medical records were filed with regard to all three Plaintiffs. The records relating to Rose Powell are contained at Exhibit Number 5 and amount to 206 pages, without records of prescription medication, which are also attached. Not all of those records relate to respiratory problems but they are a constant theme that reoccurs.

[47] Those records show that during the period from December 11, 2006 to October 4, 2007, prior to the operation of the Defendants’ OWF, she attended on her doctor four times with complaints of wheezing, shortness of breath, unabated coughing for more than two months, spitting up of green phlegm, etc. She attended at the Brockville General Hospital on October 4, 2007 for testing for pulmonary disease.

[48] During the first heating season of the Defendants’ OWF, November 2007 to May 2008, she only attended on her family doctor on two occasions. This did not represent any increase in the frequency of having to visit her family doctor for respiratory ailments. During the second heating season from October 2008 to April 2009, she only had to visit her doctor on one occasion but it must be noted that she had left the Powell farmhouse as her place of residence no later than November 2008. Rose Powell’s evidence was that she can see the smoke and smell the horrible odour from the Defendants’ OWF when no one else can, with the possible exception of the two other Plaintiffs from time to time. She also stated she would not expect other family members, such as Nancy, and her son Nelson Powell, Township staff, Ministry of Health staff or Ministry of the Environment staff to see the smoke or notice the odour.

[49] The medical records related to Tanya Powell are filed as Exhibit Number 4 and total 765 pages, not including the addendum related to her history of prescription drug medications over certain years from 2005 to 2010. Like Rose Powell, Tanya has suffered severe respiratory ailments going back to when she was in her late teens. At that time, she was diagnosed with severe asthma and had been recommended to use two inhalers. In her mid-twenties, she was referred to a Respirologist who diagnosed her as having only fifty percent lung-working capacity, which could be improved slightly with the use of inhalers. The diagnosis included a possibility of a much reduce life expectancy.

[50] When Tanya was in her early thirties, she was referred to yet another specialist who started her on a course of steroids to help ease her shortness of breath. She has always been extremely susceptible to getting colds, which at times could lead to bronchitis and on some occasions into full blown pneumonia. Her respiratory ailments continued unabated to the point where in November of 2004, she applied for a disability permit based on “respiratory disease”. As stated earlier, it was in about 2004 that she chose to sleep twelve months of the year in an outbuilding with no heat or running water.

[51] By 2007, Tanya was still seeing her doctor for respiratory problems. She saw that doctor on January 16th, April 3rd, and October 4th, 2007, all with the same symptoms and complaints as described in Exhibit Number 4, Tab 1, at pages 46, 47 and 48.

[52] Even as a newborn, Ian began to suffer from respiratory ailments that grew to be even more severe than his mother as noted in Exhibit Number 6, which totals 71 pages of medical reports not including the addendum related to prescription drug usage over a designated time period.

[53] Both parties called expert evidence. The Plaintiff called Kevin Shipley and submits that the purpose of his expert report was to demonstrate that there is scientific basis for the results reported by Rose Powell and by the other witnesses for the Plaintiff with respect to their observations and experiences with smoke odour and soot. Mr. Shipley assumed that he would not be given permission by the Defendants to do an actual test on the OWF operation. The Defendant, Kent Dowsley, gave evidence that he would have been willing to allow such testing to take place. Based on his assumption, Mr. Shipley put together a modelling technique (AERMOD) to estimate the potential concentration of air contaminants being emitted from the Defendants’ OWF onto the Powell property. He testified that he chose to model the worst case scenario. Because of his assumption that he was not able to test the actual OWF, he was forced to assume most of the model input data, including the exact details of the manufacturer’s specification for the Defendants’ OWF. He went to the website of the manufacturer and chose a particular model made by them and inputted data based on that information. The Defendants point out that certain assumptions made by Mr. Shipley were incorrect and their position is that the conclusions he drew are, therefore, suspect. The incorrect assumptions include the following:

• The Defendants’ OWF was a smaller model, by the same manufacturer, than the one assumed.

• The Defendants’ OWF was manufactured in the year, 2000, the assumption was it predated 1988 before admission standards were established.

• The diameter of the chimney stack was assumed to be five inches when in fact it was eight inches.

• It was assumed that the Defendants’ OWF, for the purpose of this model, would be operating at maximum capacity, 24 hours a day, seven days a week, and 365 days a year, when the evidence is clear that it functioned only during the heating season.

• Because of the above assumption, the Defendants’ OWF would be required to burn 2,800 pounds of wood per day, year round, rather than the actual amount of 200 to 250 pounds per day for only the heating season.

• The damper system, which operates on the Defendants’ OWF, and which prevents smoke emissions from the chimney for most of the day was not taken into account.

• It was assumed that the temperature of the smoke emerging from the chimney of the Defendants’ OWF would be 60 degrees Centigrade. There is no direct evidence by anyone as to the exact temperature because it was never tested. The Defendants’ expert, Gordon Reusing, gave evidence that the chimney stack was insulated and the smoke would be much hotter, more than 100 degrees Centigrade, and therefore more buoyant. With no actual testing having been done, that is more of a conflict in opinions than clearly demonstrated inaccurate assumption.

[54] The Defendants also point out that Mr. Shipley relied on results of the Ministry of the Environment (MOE) first air quality survey. That survey was carried out in the non-heating season. Mr. Shipley took some comfort when those tests gave exceedances, which were greater than the output data generated by his model. The Defendants point out that he had available the results of the second MOE air quality study done in December during the heating season and made no reference to it in the body of his report nor did he attach it to that report.

[55] He acknowledged that the results of that second survey showed no exceedances of relevant air quality standards and substantially less contamination than the output data of his model. The concern, as expressed, is that he neither referred to the second study nor explained why the results did not cause him concern about the quality of the output data of his model.

[56] The Defendants’ expert, Mr. Reusing, complained that Mr. Shipley’s use of the one hour averaging period in combination with MOE conversion factors to produce output data results for 24 hours in one year resulted in much higher output results than could be reasonably expected. Mr. Reusing’s evidence was that the AERMOD model has the proper calculation formula built into it and would have produced more accurate results at little extra cost of time or money if they had been used instead.

[57] I find that it would have been much more helpful to the Court, as the trier of fact in this case, to have had either expert do testing on the Defendants’ OWF in operation. It is apparent that neither the Plaintiffs, nor their counsel, requested permission for their expert to do so. It is also apparent, given the evidence of the Defendants’ expert, and common sense, that the way to be sure about the output of the Defendants’ OWF would be to do actual testing on the unit itself. From the Court’s point of view, that actual testing would have been extremely helpful to the parties and could have, in all likelihood, prevented this trial one way or the other. Neither party chose to pursue that option, which would have produced the best evidence available. I recognize that would have involved an expenditure for such testing to be completed, but that expenditure pales in comparison to the costs of a six-day trial in Superior Court, which ultimately involved an expenditure by both parties for expert witnesses whose evidence was limited to modelling based on assumptions and a critique of same without any actual testing to provide the best evidence, not only for the Court but for the parties in deciding whether to take the risk of going to trial.

[58] During the period between 2007 and 2010, the Plaintiffs sought the intervention of three government authorities, being their local Township, the Leeds and Grenville District Health Unit and the Ministry of the Environment.

[59] As noted above, the Plaintiffs successfully opposed the Defendants’ application for a minor variance from the Township with regard to the location of the Defendants’ OWF. As a result, the Defendants were required to move their OWF to a distance 150 feet west of the lot line, which they proceeded to do before the following heating season commenced.

[60] The Plaintiffs then tried to persuade the local Township to close down the Defendants’ OWF altogether. They were unsuccessful.

[61] The Plaintiffs also approached the District Health Unit of the Ministry of Health (MOH) in the summer of 2008. They voiced their concerns to the MOH relating to their health issues as a result of the operation of OWFs altogether. The MOH responded by indicating that OWFs were an alternative home heating system that was acceptable when properly designed, installed and operated as it released minimum pollution into the environment. There has been no evidence presented at this trial that there was either improper design, installation or operation of the Defendants’ OWF.

[62] In May 2010, the MOH sent inspectors to the site on two occasions. On the second visit on May 19th, 2010, the inspector smelled wood smoke at the end of the Powell driveway. It was their opinion that the wood smoke was not coming from the Defendants’ property but rather from the Donovan farm and the MOH was not prepared to make any recommendations that the Dowsley OWF be closed.

[63] In November 2008, just a few days before Rose Powell moved into the rented property with her husband, Dave Powell, a son of Rose Powell, contacted the MOE to complain about the smoke from the Defendants’ OWF as he had stayed at his mother’s residence the night before and was deathly sick and had to take the day off work.

[64] At 12:40 p.m., the evidence is that the first representatives from the MOE attended at the site. It had been explained to the Plaintiffs that the MOE did not regulate OWFs, but it did have residual jurisdiction to enforce exceedances of Ontario’s air quality standards.

[65] For approximately the next two years, the MOE maintained an active file as it investigated ongoing complaints made by the Plaintiffs, primarily Rose Powell, that their use and enjoyment of their property was being adversely affected by the Defendants’ OWF.

[66] A senior environmental officer at the MOE’s Kingston district office, Natalie Matthews, was the key contact person for the Powells and gave evidence at the trial. It was her evidence that she first attended at the Powell residence on November 12, 2008, the very day that she received a telephone complaint from David Powell. She noted no smoke or smoke odour at the Powell farmhouse. She went on to the Defendants’ property and saw a small amount of smoke being emitted from the OWF. She detected a slight smoke odour but only for approximately 20 seconds. She took a number of photographs which have been filed as Exhibits 19(A) to 19(I). Those photographs show puffs of light smoke with a plume of 20 to 30 feet and a pile of apparently properly seasoned wood near the unit itself.

[67] Ms. Matthews testified that while her file remained open until the fall of 2010, she visited on at least six occasions. Evidence of at least four of those visits are contained in Exhibit 3, Tabs 15, 23, 33 and 49, respectively. Some of those visits were during the heating season when the Defendants’ OWF was operational. Other visits were during the non-heating season. On occasion, she would visit the site on her own either in response to a complaint or while in the general area on other business. On other occasions, she attended the site with technicians. On no occasion did Ms. Matthews see smoke or smell a wood odour that she thought might be considered an adverse effect according to MOE standards.

[68] During her evidence, Ms. Matthews was referred to documents contained in Exhibit 3, at Tab 24, which is her report to colleagues at the MOE about a conversation she had with Tanya Powell on the phone on February 25, 2009. In that report, she states that Tanya intended to move back into the Powell residence at the end of the month. She states that Tanya indicated she has asthma and has only about 45 percent lung capacity. She also states that Tanya indicated that once she moves back home, she will die in one or two months and that prior to dying, she will contact W5. She also reported that Tanya stated to her that Tanya will blame the Ministry for her death. Ms. Matthews reports Tanya stated, “She is prepared to die, but she wants me to know it will be our fault.”

[69] She was also referred to Exhibit 20, which is a copy of a letter that had been introduced earlier by the Defendants as Exhibit 10 which is undated, while Exhibit 20 had a stamp from the Ministry of the Environment, Kingston Ontario District Office, as being received on November 24, 2009. It is a signed letter from Tanya Powell addressed to Natalie Matthews. The tone of the letter is quite aggressive and speaks for itself and includes the following statements. “If you would have had on more hands-on approach, my Dad would still be alive today.” It also states, “I blame you, Natalie, for my father’s death, because under the act you have/had the power to shut the Dowsley’s outdoor wood burning furnace off due to health and environmental issues:…”

[70] The letter concludes with the following two paragraphs:

“I assume that the Ministry of Environment was there to work with all Ontarians and engaging partnerships with business and governments to prevent pollution, restore and protect the environment to enhance public health, environment quality and economic vitality.”

“Here are the pictures you asked for but do answer my question when you start doing your job?”

[71] The nature of all those communications is to attempt to bully the MOE into taking action. The phone call in February 2009 was after Tanya’s accident in August of 2008, but before her father’s death in March of 2009. The letter of November 2009 was about seven months after her father’s death. Tanya was going through a difficult time in her life and admitted she was not proud of the letter. On the stand, Ms. Matthews became emotional when reminded of these insults and accusations made by Tanya Powell. She stated that even when she knew they were not true, they hurt her as she attempts to do her job in a professional, respectful way and cares about the welfare of those people who come to her with complaints about air quality.

[72] Ms. Matthews gave evidence that she, and others from the MOE, repeatedly asked the Powells for their cooperation by obtaining supporting medical evidence showing a causal relationship between the operation of the Defendants’ OWF and their health concerns (see Exhibit 3, Tab 17, 20, 21 and 28). The Powells were also repeatedly asked to deliver videos and/or photographs showing smoke from the Defendants’ OWF coming onto their property and to report in a timely fashion any ongoing incidents of smoke or offensive odours (see Exhibit 3, Tab 22), so that someone from the MOE could possibly come out at the time of the complaint to do an assessment (see Exhibit 3, Tabs 25 and 32).

[73] Ms. Matthews testified that the Powells failed to cooperate. The requested medical evidence was never provided. The photographs were provided a year after the first request, as it is her evidence that they were only received concurrent with the receipt of Exhibit 20, even though Tanya Powell insists they had been sent earlier.

[74] There was only one occasion when a complaint of smoke was made while the incident was occurring. On that occasion, which has already been referred to, the MOE attended on the site within 30 minutes on June 15, 2010. The staff in attendance found no basis for the complaint made that day. In fact, the Defendants’ OWF was determined to be closed and non-operational.

[75] Despite the frustration by the MOE caused by the lack of cooperation from the Powells, the MOE was responsive to all complaints lodged by the Powells totalling at least 35 complaints during the relevant period.

[76] The evidence also demonstrated that on November 19 and 25, 2008, other MOE staff attended the site, being Michael Ladouceur, an Air Scientist from the Eastern Region of the MOE, and Paul Burt, an Air Quality Technician, also from the Eastern Region of the MOE. While at the site, they met and interviewed some of the Powell family, including Rose and Tanya. Neither Mr. Ladouceur or Mr. Burt observed any excess of smoke or smelled any offensive wood odour and, in fact, described the air quality as excellent (see Exhibit 3, Tabs 21 and 22).

[77] From November 2008 to April 2009, the Powells continued to lodge complaints with the MOE alleging adverse impacts from the smoke and odour emissions from the Defendants’ OWF. The MOE decided to carry out an air quality assessment. That assessment was carried out from mid-April to early July, 2009 (see Exhibit 3, Tab 40). While carrying out that assessment, the MOE was not aware that the Defendants’ OWF was not operational during the non-heating season.

[78] The MOE air quality survey was published and distributed in late August 2009, (see Exhibit 3, Tabs 40 and 41). The survey demonstrated momentary bursts of high concentration values of particulates approximately six times per month even though the Defendants’ OWF was non-operational during the survey period except for two weeks. The monitor did not allow for determination of source-receptor geometry. The Air Quality Technician, Paul Burt, who attended the site on a weekly basis to collect data from the equipment, did not remark on having seen smoke or having detected the smell of wood odour. The lab testing showed the presence of only 10 percent (error 5 percent) of fine soot.

[79] It became evident that complaints were being made during the non-heating season when the Defendants’ OWF was not operational. One complaint was received on September 16, 2009 when the MOE was aware that the Defendants’ OWF had been chain-locked (see Exhibit 3, Tabs 47 to 50).

[80] The MOE decided to conduct a second air quality test after it was apparent that the Defendants’ OWF had been closed for almost the whole time of the first test. During the course of the second air quality test (December 8 to 16, 2009), Paul Burt attended the site on a daily basis and gathered data using a hand-held device. This second air quality study was conducted during the heating season and produced much lower results than the first study showing no exceedances of MOE air quality standards. This was consistent with the observations of Paul Burt while on the site during the course of the study, as he noted that on four of the six days that he was at the site, he did smell a wood smoke odour but that odour did not cause any adverse effect on him nor did he consider the odour to be offensive. The events of the week of March 9, 2010, are detailed above regarding the complaints of Rose Powell and the video, filed as Exhibit 18, compiled by the Defendant, Kent Dowsley that week. Also, the June 15, 2010 complaint by Rose Powell when the Defendants’ OWF was not in use is detailed above. For the reasons set out in its September 9, 2010 letter (see Exhibit 3, Tab 59), the MOE decided to close its file at that time.

[81] The Defendant, Kent Dowsley, testified on behalf of the Defendants. He works full time as a maintenance supervisor with Parks Canada and resides in the farmhouse on the subject property with his wife and three children. He keeps cattle and horses on his 300-acre property and cuts his own firewood.

[82] He confirmed that until October 2007, he heated his farmhouse with two woodstoves with electrical baseboard heaters as backup. Given that the Dowsley farmhouse is approximately 4,000 square feet and was built in 1875, he found the indoor wood heating system to be inefficient. The two woodstoves did not heat the house evenly and the second floor was cold, with little heat being provided to the basement, which in turn caused water pipes to freeze.

[83] He chose to purchase an OWF as an efficient solution to the ongoing heating problems being experienced by him and his family. His evidence is that the OWF is only operated during the heating season, being usually from sometime in October until sometime in April. He states that he cleans his OWF twice a year both in October when it is started up, and in April when it is closed down.

[84] He stated he was unaware that his local Township had passed a bylaw that required him to obtain a building permit for the OWF. He then applied for a building permit upon learning of that requirement and discovered that his OWF had to be set 150 feet from his lot line with the Powells. As originally installed, it was only 133 feet to the west of the lot line, otherwise more or less in its present location. With the Township’s approval, the OWF was relocated to meet the setback requirement following the first heating season. During that first heating season, he also ran out of accessible seasoned wood, as a result of a severe winter and late installation of the OWF. He admits to burning green wood for the remainder of that first heating season, but denies doing it since.

[85] His evidence is that he cannot relocate the OWF on his property to another suitable location, as space is limited and the topography is not suitable, within a reasonable distance of the house.

[86] He stated that the OWF could not be moved further to the west as it would block his laneway. It could not be moved to the south because of the barn and it needs to be relatively close to the farmhouse because the hot water being carried in underground pipes is gravity fed. The OWF has to be elevated above the circulatory pump in the basement of the farmhouse.

[87] Upon relocating the OWF to comply with the setback requirement, he also raised the chimney height to approximately 18 and a half feet above grade. He did this so it would be more or less the same height above grade as the chimney of the rental bungalow, which is also located on the Defendants’ property.

[88] He keeps his wood stored in one of the bays of his barn and states that he never burned garbage.

[89] Kent Dowsley also gave evidence that his OWF does not emit smoke on a continuous basis. He explained the combination of a thermostat, and damper, controls the temperature of the heated water in the jacket that surrounds the fire box of the OWF. The damper opens when the temperature in the surrounding water drops below 185 degrees Fahrenheit. The damper turns off once the water temperature reaches 190 degrees Fahrenheit. When the damper is open, smoke is emitted from the chimney. When the damper is closed, there is no smoke and only shimmering heat waves are visible from the top of the chimney.

[90] His evidence was that his OWF operates on a 12-hour cycle. The start of the cycle is usually around 6:00 a.m. when he leaves for work and stokes the fire. The damper opens for about 15 to 20 minutes as part of that process, as it takes about that time for the water to heat up. He states that as the cycle continues, the time that the damper is open reduces dramatically. His evidence is that the last four or five hours of each cycle, the damper may be open for about a minute or so. He then repeats the cycle around 6:00 p.m. when he is back from work.

[91] Consistent with the pictures taken by Natalie Matthews, filed as Exhibit 19 and the video he took, filed as Exhibit 18, when the OWF is in operation and the damper is open, the flume of smoke appears to be about 20 to 30 feet. After that distance, the smoke dissipates into the air.

[92] He estimates he burns about a wheelbarrow full of wood each day being between 200 to 250 pounds of wood per day.

[93] He confirmed that he emailed Natalie Matthews on September 14, 2009, advising that his OWF had been closed down since early May of that year (see Exhibit 3, Tab 47). He proposed to Ms. Matthews that they chain lock his OWF and he would give her the only keys to the lock, to see if the Powells registered any complaints while the OWF was so locked. In fact, that is exactly what happened (see Exhibit 3, Tab 50).

[94] He explained that the purpose of the video filed as Exhibit 18 was to demonstrate how a westerly wind carries smoke away from the Powell property. The issue of possible wind changes during the day during that week when he was at work, which could have led to complaints by Rose Powell to Natalie Matthews, is dealt with above.

[95] His evidence was that the said video demonstrates the amount of smoke being emitted from the chimney when the OWF is open or closed. He states that what is seen in the video would be consistent whether the wind is blowing in either a westerly or easterly direction.

[96] Kent Dowsley stated that he and his family have experienced no difference in air quality before or after the installation of the OWF in late October 2007. They have never experienced any interference with the use or enjoyment of their property be it smoke, soot or odour. Exhibit 24 is a photograph of the Dowsley garage which is only 14 feet away from the OWF showing no obvious signs of soot.

[97] With regards to the law that must be applied in this case, I raised the issue during opening statements by counsel for both the Plaintiffs and Defendants as to their position on whether the test in law, as to whether nuisance has been established by a plaintiff was subjective or objective. I was advised at that time that both counsel for the Defendants believed it was an objective test and counsel for the Plaintiffs stated that I should not be surprised he took a different position.

[98] I would have to say I was somewhat surprised when, during submissions by counsel at the conclusion of the case, they both agreed the test is objective.

[99] In submissions, the Plaintiffs’ counsel relied on a trial decision of Pyke v. Tri Gro Enterprises Ltd., 101 O.T.C. 241, [1999] O.J. No. 3217. This was a 1999 decision in which the Plaintiffs’ counsel in this case also represented the plaintiffs in that case. Counsel, in his submissions, referred to the trial judge’s decision at page 25, paragraphs 202 through 206, which read as follows:

202. The fundamental issue in a nuisance claim is whether, taking into account all the circumstances, there has been an unreasonable interference with the use and enjoyment of the plaintiffs’ land.

203. In this case the plaintiffs rely on the alleged injury to their health, comfort and convenience, and the alleged depreciation of the resale value of their lands.

204. To establish nuisance, the plaintiffs must show substantial interference which would not be tolerated by the ordinary occupier in their location. The test is objective. The interference must be repeated or continuous.

205. In considering the interference, the court must consider the type of interference, the severity, the duration, the character of the neighbourhood and the sensitivity of the plaintiffs’ use of their lands. With respect to the severity of the interference, it is not actionable if it is a substantial interference only because of the plaintiff’s special sensibilities. With respect to the character of the neighbourhood, the court should consider the zoning, whether the defendant’s conduct changed the character of the neighbourhood and the reactions of other persons in the neighbourhood.

206. The court must balance these considerations against the value of the defendant’s enterprise to the public and the defendant’s attitude toward its neighbour. The court must consider whether the defendant is using the property reasonably having regard to the fact that the defendant has neighbours. The court should consider whether the defendant took all reasonable precautions.

[100] I find all of those paragraphs to be quite relevant and helpful in deciding this case.

[101] The Plaintiffs’ position is that the Defendants can have their OWF and the Plaintiffs can have their home free of smoke, as it was prior to the commencement of the operation of the Defendants’ OWF in its present location. Their submission is that it was not reasonable to simply move the OWF 17 feet to comply with the bylaw, when they knew that the Plaintiffs were, for the first time in the history of the two families living side by side, complaining about smoke and odour from the new OWF after it commenced operations in late October 2007. Their position is that the Defendants can relocate their stove on their property so as not to interfere with the Plaintiffs’ enjoyment of their property. They submit that the OWF can be moved to a location where it replicates the original pre-October 2007 conditions. The uncontradicted evidence of the Defendants is that there is no such reasonable location on their property.

[102] The Plaintiffs also, in their submissions, relied on a report from the District Health Unit, filed at Tab 57 of Exhibit 3 and dated June 29, 2010. That letter is unsigned in the copy filed but presumably was signed at the time by Dr. Paula Stewart, a Medical Officer of Health and CEO of that Health Unit. It states that an inspection was made to the Powells’ residence on May 17 and May 19, 2010, by Public Health Inspectors. The letter is directed to Mr. Brian Kaye, the Area Supervisor for MOE, East Region. It is a follow-up to a meeting on April 26, 2010 and those inspections were at the request of the MOE.

[103] The purpose of the assessments was to determine whether or not there were any other environment that could impact on the health of the Powell family.

[104] The residence was inspected both inside and out and it was determined there were not obvious mould or water issues that could affect the health of the family. It was noted the home was heated with an oil furnace and the woodstoves in the home were not being used at that time. There were no smokers in the family and the inspectors were not able to identify any environmental source in the house that could negatively impact the health of the Powell family. The letter goes on to state as follows:

A second visit was made to take pictures of the valley that boarder the two properties. During that visit wood smoke was smelled at the end of the Powell’s driveway. It was clear that the wood smoke was not coming from Mr. Dowsley property, but was coming from a residence located at 1402 County Road 2. (That would be the Donovan outdoor furnace 2,504 feet away.)

During the visits it was noted that the wood burning furnace located at the Dowsley residence is located directly within the valley that naturally shapes the landscape between the two neighbouring properties. With this type of topography, the valley is likely creating a tunneling effect and thereby directing the smoke from the wood burning furnace at the Dowsley residence in the direction of the Powell’s home.

While reviewing the Air Quality Assessment Survey submitted by the Ministry of Environment for the Powell residence, the Analysis’ section of the report noted that there were 6 episodes of elevated particulate matter. For those individuals who suffer from respiratory illnesses, such as asthma or chronic bronchitis, breathing in air that contains high particulate matter can trigger symptoms among those individuals.

[105] The detailed Site Inspection is an attachment to that letter. On the first page of that attachment, which is at page 119.5 of Exhibit 3 in Tab 57, under the heading, “The Geography of the area”, the first sentence states as follows:

The Powell’s residence is located directly east of a wood burning stove which has been implicated by the Powell’s and the Ministry of Environment to be a source of air pollution.

[106] That statement is not correct as the MOE had made no such finding. The report does, however, go on to make the following observations about the location:

Between the two properties lies a ridge of rock that is slightly higher than the Powell’s home. The Powell’s home is located at the end of the rock ridge. To the north of the property is another grass/rock ridge, a valley lies directly between the rock ridge and the grass/rock ridge. The furnace which can be easily seen from the Powell’s property sits in the valley on the neighbouring property (19 Second Concession Road). There are no obstacles surrounding the furnace to block a westerly wind and therefore the plume of smoke flows in the direction of the Powell residence. Currently, the smoke stack from the wood burning furnace located at 19 Second Concession Road is slightly lower than the rock ridge. The Powell family indicated that the smoke follows up the contour of the rock ridge and is filling the home with smoke. During our visit, the wood burning furnace was not in use. There appeared to be a cap over the stack of the wood burning furnace.

[107] The conclusion of the report is made at page 3, which is page 119.7 of Exhibit 3, Tab 57. It reads as follows:

We have been able to determine from our inspections that there are two wood burning furnaces in the area of the Powell’s residence. From the topography of the land, we can understand why the Powell’s would be directly affected by neighbouring property at 19 Second Concession Road. For those individuals who suffer from respiratory illnesses such as asthma or chronic bronchitis, breathing in air that contains high particulate matter can trigger symptoms among those individuals. During our visit, we believe that the internal environment of the Powell’s house should not be impacting negatively on the Powell’s health.

[108] While this report supports the Plaintiffs’ position that the topography of the area may be a factor in directing smoke from the Defendants’ OWF in the direction of the Plaintiffs’ residence, it does not confirm that the Defendants’ OWF is the source for any interference with the Plaintiffs’ use and enjoyment of their property in the non-heating season. It goes on to speculate that at the end of the driveway by the road, there was an odour of smoke that was coming from a OWF over 2,500 feet away. It does not identify that odour of smoke as being sufficient to interfere with the Plaintiffs’ enjoyment of their property or produce conditions that would trigger symptoms in persons, such as the Powells, who suffer from respiratory illnesses such as asthma or chronic bronchitis.

[109] The Plaintiffs are requesting an injunction to prevent the continued nuisance during the October to May heating season each year. They are not requesting that the Defendants shut down their furnace completely but are requesting it be relocated so as to no longer present the nuisance that they submit it continues to present. They are content to have the injunction suspended for the balance of the current heating season and to take effect only after October 1st, 2016.

[110] In addition to the injunction to relocate the OWF, they are seeking damages from the Defendants on the basis that the OWF was installed without consideration for the use and enjoyment by the Plaintiffs of their property and they seek damages in the amount of $80,000.00 for Rose Powell, $30,000.00 for Tanya Powell and $15,000.00 for Ian Powell. They also seek costs on a high and partial indemnity basis.

[111] The Defendants submit that the Plaintiffs have not met the onus to establish the tort of nuisance. They rely heavily on Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, 2013, a decision of the Supreme Court of Canada, dated March 7, 2013. (See Statement of Law filed by Defendants, at Tab 1).

[112] In that decision, the court makes the following statements with respect to the elements of private nuisance, at paragraphs 18 to 24:

18. The Court of Appeal concluded that a nuisance consists of an interference with the claimant’s use or enjoyment of land that is both substantial and unreasonable: paras. 79-80. In my view, this conclusion is correct.

19. The elements of a claim in private nuisance have often been expressed in terms of a two-part test of this nature: to support a claim in private nuisance the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances. This two-art approach found favour with this Court in its most recent discussion of private nuisance and was adopted by the Court of Appeal in this case, at para. 80....

20. The two-part approach, it must be conceded, is open to criticism. It may sometimes introduce unnecessary complexity and duplication into the analysis. When it is applied, the gravity of the harm is, in a sense, considered twice: once in order to apply the substantial interference threshold and again in deciding whether the interference was unreasonable in all of the circumstances.

21. On balance, however, my view is that we ought to retain the two-part approach with its threshold of a certain seriousness of the interference. The two-part approach is consistent with the authorities from this Court (as I noted above). It is also, in my view, analytically sound. Retaining a substantial interference threshold underlines the important point that not every interference, no matter how minor or transitory, is an actionable nuisance; some interferences must be accepted as part of the normal give and take of life. Finally, the threshold requirement of the two-part approach has a practical advantage: it provides a means of screening out weak claims before having to confront the more complex analysis of reasonableness.

22. What does this threshold require? In Barrette, the Court noted that the requirement of substantial harm “means that compensation will not be awarded for trivial annoyances”: para. 77. In St. Pierre, while the Court was careful to say that the categories of nuisance are not closed, it also noted that only interferences that “substantially alte[r] the nature of the claimant’s property itself” or interfere “to a significant extent with the actual use being made of the property” are sufficient to ground a claim in nuisance: p. 915 (emphasis added). One can ascertain from these authorities that a substantial injury to the complainant’s property interest is one that amounts to more than a slight annoyance or trifling interference. As La Forest J. put it in Tock v. St. John’s (City Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181 (S.C.C.), actionable nuisances include “only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes”, and not claims based “on the prompting of excessive ‘delicacy and fastidiousness’”: p. 1191. Claims that are clearly of this latter nature do not engage the reasonableness analysis.

23. In referring to these statements I do not mean to suggest that there are firm categories of types of interference which determine whether an interference is or is not actionable, a point I will discuss in more detail later. Nuisance may take a variety of forms and may include not only actual physical damage to land but also interference with the health, comfort or convenience of the owner or occupier: Tock, at pp. 1190-91. The point is not that there is typology of actionable interferences; the point is rather that there is a threshold of seriousness that must be met before an interference is actionable.

24. I therefore find that a private nuisance cannot be established where the interference with property interests is not, at least, substantial. To justify compensation, however, the interference must also be unreasonable. This second part of the private nuisance test is the focus of the next two issues to which I now turn.

[113] The court then goes on to consider reasonableness assessed in the context of interference caused by projects that further the public good, which is not relevant to this case, nor is the issue of whether the unreasonableness of an interference need to be considered when that interference is physical or material, except for near the end of that consideration when the court states the following at paragraph 51:

51. I therefore conclude that reasonableness is to be assessed in all cases where private nuisance is alleged. Once a claimant passes the threshold test of showing harm that is substantial in the sense that it is non-trivial, there ought to be an inquiry into whether the interference is unreasonable, regardless of the type of harm involved.

[114] The Defendants, therefore, submit that the Powells are not ordinary neighbours. They were not coping well with health issues long before October 2007 and this claim by the Plaintiffs is not actionable, according to the Supreme Court of Canada, if the Plaintiffs’ claims are based “on the prompting of excessive ‘delicacy and fastidiousness’”. Claims that are clearly of this latter nature do not engage the reasonableness analysis.

[115] Both parties address the issues raised by the Ramara (Township) v. Mullen, 2012 ONSC 2220, [2012] O.J. No. 1642, located at Tab 3 of the Plaintiffs’ Book of Authorities. This is a decision from the Ontario Superior Court issued April 11, 2012, which relates to a claim for an injunction against the property owner, who had installed an OWF a number of years before the Township brought into play an injunction attempting to govern their operation. Without going into all the details of the case, it did result in an injunction preventing the operation of the woodstove during the non-heating months, based on the evidence that the surrounding property owners complained of the greatest interference with the enjoyment of their property during those months. That evidence was that the physical impact on their bodies, in terms of enjoying their property, was most severe during those months when they were outdoors more. It was a balancing act by the trial judge to allow the OWF to continue to operate for heating purposes during the heating season only, when it had been used year round. The Defendants also point out that the trial judge noted at paragraph 37 there was no evidence that the surrounding property owners were overly sensitive to the realities of rural life or that they have exaggerated the effects of the smoke on their use of their own land. The Defendants submit that, had they been found to be overly sensitive, no injunction would have issued.

[116] The Defendants also point out that in the reasons for judgment number 2 from the trial judge in the Pyke, supra, which is contained at Tab 5 of the Defendants’ Book of Authorities, the trial judge, at paragraph 50 of those reasons, makes the following statement in the last sentence of that paragraph:

I found no special vulnerabilities which would make the type of impact they suffered unforeseeable and therefore not compensable.

[117] The Defendants submit had such special vulnerabilities been found in any of the property owners, there would have been no damages awarded. None of the other cases in the materials or submissions were particularly helpful in advancing the resolution of this case.

[118] I find that the existing law regarding the tort of nuisance does require that the Defendants’ actions result in interference with the use and enjoyment of the Plaintiffs’ property that could be found to be both serious and substantial, which would not be tolerated by the ordinary occupier in their location. The test is objective and the interference must be repeated or continuous.

[119] As stated in somewhat different ways but consistently in the jurisprudence, a court must consider the type of interference, the severity, duration and character of the neighbourhood and the sensitivity of the Plaintiffs’ use of their lands. A claim is not actionable if it is a substantial interference only because of the Plaintiffs’ special sensibilities. The court must balance these considerations against the value of the Defendants’ enterprise and the Defendants’ attitude towards their neighbours. In doing so, the court must consider whether the defendant is using their property reasonably having regard to the fact that the defendant has neighbours, whose home in this case is located 700 feet downwind from the Plaintiffs’ residence.

[120] I find there is sufficient evidence to conclude that on a balance of probabilities, the operation of the Defendants’ OWF did cause some interference with the use and enjoyment of the Plaintiffs’ land. These parties had been neighbours for decades without any such claims being made. While wood burning stoves are a commonly used source of heat, and are consistent with the rural agricultural character of the neighbourhood in which these parties reside, the only rational conclusion for the sudden complaints by the Plaintiffs about smoke and odour immediately following the installation of the Defendants’ OWF is that there was some impact on them. That impact may not have been reasonably expected by the Defendants and, based on the evidence of Kent Dowsley at trial, this location was chosen as the only practical area within which the OWF could be reasonably functional on their property. The topography of the land and the prevailing winds may have contributed to an unexpected condition occurring that had not previously existed when the wood burning stoves from the Defendants’ home were in use up until that time.

[121] I do, however, agree with the Defendants’ submission that the Plaintiffs’ medical histories are dominant factors in assessing the impact this change had on their lives. All of the Plaintiffs have well-established, significant medical histories for respiratory ailments as referred to above. Rose Powell, quite probably without grasping the implications for this litigation, states that she can see and smell the smoke and taste its impact when no one else around her can. She describes her history of respiratory ailments rather eloquently as making her feel like a much older person for many years prior to the fall of 2007. Tanya Powell has similarly been diagnosed for many years prior to the fall of 2007 as having severe respiratory problems. For three years prior to the installation of the Defendants’ OWF, she had been sleeping in an unheated outbuilding year round in order to get sufficient relief that she could get proper sleep.

[122] Her son, Ian, was diagnosed with respiration illness almost from birth and it is conceded that his condition has been worse than his mother’s.

[123] It is also significant, in my view, that Nancy Powell, the daughter of Rose and sister of Tanya, continues to live at the Powell farmhouse with no adverse effect from the Defendants’ OWF from the fall of 2007 until the summer of 2015. She now is bothered by the odour of the smoke and has a taste in her mouth. Given the history of severe respiratory problems within this family, it is difficult to draw any significant conclusion about why these complaints have only arisen in recent months, particularly when the Defendants’ OWF does not function in the summer and would only be operational since October of 2015, a few months before trial. Her evidence about the existence of soot is that it has come in to play in recent years and continues throughout the non-heating season to be an issue. She is not a plaintiff in this action but that evidence is not capable of being connected to the Defendants’ OWF during the months it does not operate. There is insufficient evidence to support a finding as to the source of that soot or any of the smoke or odours complained of in the non-heating season by the adult plaintiffs herein. There is, however, evidence to exclude the Defendants’ OWF as that source.

[124] Under all the circumstances of this rather perplexing story presented, I am in the position of having to find that any interference in the enjoyment by the Plaintiffs of their property since October 2007 might meet the threshold test of being substantial, within the context of their particular vulnerabilities and sensitivities arising from their longstanding medical condition of serious respiratory issues, but they fail to meet the more objective test and show that such interference, even if substantial, would not be tolerated by the ordinary occupier in their location. The test is objective.

[125] The fact that Nancy Powell has continued to live there symptom free for approximately eight years confirms the Defendants’ submission that it is, indeed, the vulnerabilities of the Plaintiffs, none of which are their fault, that make this claim not actionable.

[126] The Plaintiffs, through their counsel, have also submitted that while the cases referred to by the Defendants clearly indicate that people with a special sensitivity may not be able to claim nuisance, public policy with respect to disabled people has evolved. The Plaintiffs suggest that the Defendants should not be allowed to smoke out their neighbours simply because they suffer from respiratory illnesses. The submit that such a position is not respectful of public policy of allowing the disabled to enjoy full lives.

[127] Given the current state of the jurisprudence on this issue, including the relatively recent ruling by the Supreme Court of Canada, I am bound to apply those principles of the current law to the story of these parties as summarized above. As stated by the authors of Canadian Tort Law, 8th Edition, by Allen M. Linden and Bruce Feldthusen, page 577:

Where the real reason for injury to the plaintiff is the plaintiff’s own peculiar physiology and not unreasonable conduct by the defendant, liability in nuisance will be denied since “this branch of the law pays no regard to the special needs of invalids”. Thus, a plaintiff, who had an asthmatic condition which was brought on because of contact with the defendant’s horses, was not entitled to protection since the condition was one of “abnormal sensitiveness”. Damage due to allergies is not compensable.

However, abnormal sensitivity loses its character as a defence where the extent of interference would have been excessive even in normal circumstances, or where the defendant could easily have suspended operations or carried them on in another manner without exposing the plaintiff to the risk of harm.

[128] I am unable to find that the abnormal sensitivity of the Plaintiffs herein loses its character in this case. A family member without medical history of respiratory illness has continued to live in that residence symptom free for over eight years. Her recent complaints may very well be as a result of her growing sensitivity. The many attempts by various public authorities to relay the complaints by the Plaintiffs to the OWF operated by the Defendants have not been able to do so.

[129] In order to extend the law of nuisance to those persons with disabilities, as requested by the Plaintiffs herein, would require me to ignore binding authority based on the case law and attempt to take on the role that I feel is more appropriately within the purview of those involved in passing legislation through representatives elected in a democratic process. Those authorities have the tools, the expertise and the process to determine this type of public policy which then can be interpreted and applied by the courts. I find that I would be overreaching my jurisdiction to do so under the circumstances of this case.

[130] By reason of this ruling, it is obvious that if the Plaintiffs have not met the threshold for a damage claim, they have also not met the threshold to obtain an injunction as claimed. They are no longer seeking to have the OWF shut down but simply moved. There is no evidence that move would ameliorate their concerns. The evidence that they are bothered year round from some source, that must be other than this OWF, does not allow me to speculate that merely moving this particular unit would provide the relief they claim. The granting of an injunction is an exercise of judicial discretion. In this case, I find the Plaintiffs have failed to demonstrate that the Defendants acted unreasonably, or maliciously. Their actions, I also find, would, on a balance of probabilities, not have interfered substantially with the reasonable use of their neighbour’s property by the average person without the medical histories and infirmities of the Plaintiffs.

[131] The Plaintiffs’ claims for both damages and an injunction are dismissed. If the parties cannot agree on costs, I will receive written submissions from the parties claiming costs within 30 days, limited to four typewritten pages, together with a draft Bill of Costs with a 10 day right of reply to the other party.

The Honourable Mr. Justice K. E. Pedlar

Released: March 18, 2016

CITATION: Powell v. Dowsley, 2016 ONSC 1951

COURT FILE NO.: CV08-0889

DATE: March 18, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Rose Powell, Ian Powell and Tanya Powell

Plaintiffs

– and –

Kent Dowsley and Robert Dowsley

Defendants

REASONS FOR JUDGMENT

Pedlar, J.

Released: March 18, 2016