Court File and Parties

COURT FILE NO.: CV-14-502018-00A1 DATE: 20181127 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHARI KRIESER, Plaintiff – AND – ANNA GARBER, MICHELLE GARBER, SUSIN GARBER, MIKE NEALON and NEALON WOOD PRODUCTS LTD., Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Ken Prehogan, Lia Boritz, and Kelsey Gordon, for the Plaintiff Roger Chown and David Thompson, for the Defendants, Mike Nealon and Nealon Wood Products Ltd. Irvin Schein and Whitney Abrams, for the Defendants, Anna Garber, Michelle Garber, and Susin Garber

HEARD: November 27, 2018

INADMISSIBILITY OF CHARACTER EVIDENCE

[1] In this action, the Plaintiff claims damages, including punitive damages, for Nuisance in relation to the Defendants’ building of a dock that the Plaintiff contends blocks his access, or his ease of access, to his own dock. The Plaintiff and one Defendant are neighbours with waterfront properties on Lake Simcoe. The other Defendant is the contractor that built the impugned dock.

[2] At trial, the Defendants wish to introduce evidence of the Plaintiff’s conduct supposedly in retaliation for the alleged Nuisance. This includes allegations that the Plaintiff has been playing loud music and causing smoke to waft over the Defendant’s property, in an interference with their quiet enjoyment.

[3] Waddams, The Law of Damages, at ch. 13, indicates that a plaintiff’s conduct in provoking the actionable conduct by the defendant is relevant to the assessment of punitive damages. Professor Waddams (who is always concise and precise) says, “The conduct of the plaintiff, in provoking an assault for example, is not in general, relevant to the assessment of compensatory damages…[but] provocation by the plaintiff will usually reduce the impropriety of the defendant’s reaction, and so may reduce or extinguish the award of exemplary damages.”

[4] That is not analogous to what we have in our action here. In a claim for assault, a plaintiff will not be awarded punitive damages for provoking the assault. In a claim for Nuisance in the wrongful building of a dock, the analogy would be that the Plaintiff could not be awarded punitive damages if he provoked the building of the dock. Clearly that is not the Defendant’s allegation here. Neither is Moase Produce Ltd v Royal Bank, 1987 Carswell PEI 24, paras 36-37 analogous. There, the PEI Supreme Court made it clear that the misconduct of the Plaintiff was in having provoked the bank defendant into putting it into receivership by submitting misleading financial statements. Accordingly, the plaintiff was not awarded punitive damages despite the bank’s apparently heavy-handed actions in putting it into receivership.

[5] In our case, there is no causal connection between the Plaintiff’s alleged bad conduct and the building of the dock, as the Court of Appeal says is necessary in BMO Nesbitt Burns Inc. v Wellington West Capital Inc. (2005), CarswellOnt 3899 (Ont. CA), at para 32. The Plaintiff’s supposed bad conduct is specifically said to be in reaction to the building of the dock.

[6] What Defendants’ counsel points to is the Plaintiff’s claim that the Defendants should not only not have built the dock, but should have rectified it once they learned of the error. It is conceivable that if this is a ground for the Plaintiff’s punitive damages claim, then the Defendants would be able to put into issue the Plaintiff’s provocative conduct. But this would have to fit into the paradigm already articulated by the courts.

[7] Accordingly, the Defendants would have to be attempting to establish a causal link between the Plaintiff’s conduct and their failure to rectify the error. As was said in Murano v Bank of Montreal, 1998 ONSC 5633, para 114 – “…the plaintiffs’ conduct in this case (which included failure to communicate information to the bank and other conduct described by the trial judge) was a cause of the bank’s conduct in the sense that if the plaintiffs’ conduct had been more reasonable the bank would not have acted as it did.”

[8] In other words, the Defendants would have to be arguing that, but for the Plaintiff’s playing of loud music or causing smoke to drift over the Defendant’s property, the Defendants would have rectified the mislocated dock. As Plaintiff’s counsel points out, this is not pleaded by the Defendants. That does not surprise me. No one made this point in the overview of the case that I was given by all counsel at the outset of the trial, and for good reason. It would in effect be an admission of liability then an attempt to minimize the consequences. If there were an admission of liability by the Defendants, this would be a far shorter trial than the two weeks that have been set aside for it.

[9] Without the required causal connection, the attempt to put the Plaintiff’s conduct in issue is just bad character evidence and is extraneous to the issues at hand. As evidence that is unconnected to the claim against the Defendants, and that in any case relates to a form of defense that has not been pleaded by the Defendants, I will not allow it.

Morgan J. Date: November 27, 2018