COURT FILE NO.: CV-16-0054 (Perth)
DATE: 20220211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAURIE RINTOUL and ELEANOR RINTOUL
Plaintiffs
-and-
GREGORY DRUMMOND and KATHERINE CAPELLO
Defendants
Richard Butler and Alessia Petricone-Westwood, for the plaintiffs
Jonathan Collings and Tessa Morris, for the defendants
HEARD at Perth (by video conference): 11 and 12 January 2022
MEW J.:
REASONS FOR DECISION
[1] The parties to this action are neighbours. Their properties are situated in a rural location near Carleton Place. The dispute between them arises from the installation by the defendants, and their subsequent use, of an outdoor wood fired boiler (“OWB”). According to the plaintiffs, this has resulted in the release, discharge, emission and migration of contaminants, which has substantially and unreasonably interfered with their use and enjoyment of their property.
[2] At a case conference held on 2 December 2021, Abrams J.’s endorsement recorded, inter alia, that:
The issue of liability has been resolved by the removal of the outdoor wood furnace and the agreement of the defendants by court order that would prohibit the return of the furnace while they are the owners of the subject property.
If necessary, the trial shall proceed on the issue of the assessment of damages alone...
Background
[3] The plaintiffs are retired and have lived at 234 Gardiner Shore Road since 2007. It is their principal residence. The property is situated in a peaceful location and is fronted by Lake Mississippi.
[4] The defendants purchased 233 Gardiner Shore Road in 2013. They, too, live there year-round. Mr. Drummond is a paramedic, but he also has an ownership interest in a local construction company.
[5] Soon after moving in, the defendants started looking into installing an OWB. After applying for a building permit for, and installing an OWB, the defendants were told by the local authority (the Township of Beckwith) that their OWB was non-compliant with an applicable by-law and that they would need to obtain an exemption. This they duly applied for and, on 7 October 2014, were granted an exemption, provided that they attached a chimney pipe extension to a height satisfactory to the Chief Building Official.
[6] The plaintiffs first observed and were affected by what they describe as noxious emissions, smoke and odours migrating from the defendants’ OWB to their property, on 9 November 2014. Contaminants are alleged to have continued to migrate from the defendants’ property to their own property unabated until the recent agreement between the parties. This notwithstanding that the defendants say they installed the required chimney pipe extension at the end of 2014.
Preliminary Issues
[7] The defendants argued that the action should be dismissed on the basis of res judicata, or alternatively on the basis that there was not an actionable nuisance capable of grounding an award of damages.
Res Judicata
[8] Before this action was commenced, the plaintiffs had sued Mr. Drummond, Beckwith Township (“the Township”) and Reeve Richard Kidd in the Small Claims Court seeking damages of $25,000 and an injunction to prevent Mr. Drummond from operating the OWB. The claim against the Township and Mr. Kidd was dismissed because the Municipal Act precluded their liability for policy decisions made in good faith. The plaintiffs, who were self-represented, also became aware that they could not obtain injunctive relief in the Small Claims Court. Mr. Rintoul testified, and I accept, that he decided to terminate the Small Claims Court action so that he could commence a Superior Court action. He went to the courthouse in Perth on 2 March 2016 and filled out what he believed to be the appropriate form – a Form 11.2A Request for Clerk’s Order on Consent – seeking a dismissal of the plaintiffs’ claim. He agreed to pay the defendants $750 for costs thrown away. He was told later the same day that he had, in fact, filled out the wrong form. He returned to the court and completed and filed a Notice of Discontinued Claim (Form 11.3A).
[9] The defendants argue that the dismissal of the plaintiffs’ claim represented a with prejudice disposition of the plaintiffs’ claims and that the legal doctrine of res judicata precludes them from being re-litigated in this action. Mr. Drummond asserts that he was led to understand that the dismissal of the Small Claims Court proceeding would put an end to legal proceedings arising from use of the OWB once and for all. The defendants rely on the decision of Ground J. in Reddy v. Oshawa Flying Club (1992), 11 C.P.C. (3d) 154 (Ont. Gen. Div.), at para. 9:
The case law seems to be clear that a consent order which ends an action is of the same effect for purposes of the res judicata doctrine as a judgment issued by the court on completion of a trial or hearing.
[10] The plaintiffs point out that the co-defendant in this action, Ms. Capello, was not a party to the Small Claims Court proceeding. But that aside, it was clearly the plaintiffs’ intention to discontinue their action so that they could start a new one in the right court.
[11] In my view the application of a bar based or res judicata would not be appropriate in this case. A discontinued proceeding would not operate as a bar. And even if the operative termination of the Small Claims Court action was by a consent dismissal order signed by the Registrar, it was clearly not the intention of the plaintiffs to foreclose their ability to bring an action in this court.
[12] Furthermore, there cannot be said to have been an adjudicative aspect to the consent order. In Lawyers' Professional Indemnity Co. v. Geto Investments Ltd. (2001), 2001 CanLII 27980 (ON SC), 54 O.R. (3d) 795 (S.C.J.), commenting on the above quoted passage from Reddy, Nordheimer J. wrote, at paras. 11 and 12:
[11] With respect, I do not believe that the authorities support the breadth of that statement. Where the consent order has an adjudicative aspect to it, as it did in Maiocco [v. Lefneski, [1995] O.J. No. 4014 (Ont. Gen. Div.)] and in Staff Builders [International Inc. v. Cohen, [1983] O.J. No. 401 (Ont. H.C.)], then the principle of res judicata may apply. But where, as here, the order does nothing more than dismiss the action pursuant to a settlement and therefore clearly does not purport to have made any adjudication of the action on the merits, then I do not see how the doctrine of res judicata can flow from it. The classic statement in Henderson v. Henderson (1843), 3 Hare 100, (Eng. V.-C), which is relied upon both in Reddy v. Oshawa Flying Club, supra, and in Staff Builders International Inc. v. Cohen, supra, says, at p. 115:
“The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” (emphasis added)
[12] As I have already indicated, the consent order here does not involve a pronouncement of judgment on any of the matters raised in the former action nor could it given that the order itself was granted by the Registrar. In my view, therefore, the doctrine of res judicata is not invoked by such an order and no estoppel can arise as a consequence of it.
Actionable Nuisance Established?
[13] The defendants’ position is that despite the issue of liability having been resolved, there has been no agreement by them that the plaintiffs are relieved from having to prove that the defendants’ activities have caused a substantial and unreasonable interference with the plaintiffs’ use or enjoyment of their land. Anything short of that would result in there being no actionable nuisance. They argue that Abrams J.’s endorsement that liability has been resolved merely reflects a concession by them that the plaintiffs do not have to prove the conduct that forms the basis for their claim for damages.
[14] In Antrim Truck Centre Ltd. v. Ontario (Transportation), 2011 ONCA 419, 106 O.R. (3d) 81, the Court of Appeal stated, at para. 80:
... the test for nuisance, at its core, commands a two-part analysis. Fleming (The Law of Torts, 9th ed. (Sydney: The Law Book Company, 1998)) puts it simply, at p. 466: "[T]o constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable" ... : see, also, St. Lawrence Cement v. Barrette, at para. 77. Murphy [Street on Torts, 12th ed. (Oxford: Oxford University Press, 2007)], at p. 420, explains that these elements of the test should not be viewed as mutually exclusive and that an interference that is unreasonable will also often necessarily be substantial.
[15] Shortly before the above quoted passage, the Court of Appeal had observed, at para. 77, that unlike most other torts, nuisance focuses on the damage to the defendant as opposed to the conduct of the plaintiff. Moreover, there is an element of "give and take, live and let live" when dealing with the issue of whether a balancing exercise is required in determining whether nuisance has been made out.
[16] The plaintiffs question how, having consented to an order restraining the defendants from further use of an OWB, the defendants can now say that they have not conceded that their conduct amounted to an actionable nuisance. In any event, they argue that the facts support a finding that the nuisance caused by the defendants’ OWB was substantial and unreasonable.
[17] Given the accord reflected in Abrams J.’s endorsement, and in particular the defendants’ agreement to what amounts to a mandatory injunction requiring the removal of the OWB and a prohibitory injunction restraining the reinstallation or future use of an OWB, it follows implicitly that the defendants should be taken as having accepted a juridical basis for such relief.
[18] Accordingly, the plaintiffs should not be required, as part of this trial on the issue of the assessment of damages, to prove that the damage they have suffered is substantial and unreasonable.
Evidence of Damages
[19] Injunctive relief and damages often go hand in hand in nuisance actions. Damages are intended to compensate for the past harm; an injunction is intended to prevent future harm: Pyke v. Tri Gro Enterprises Ltd., [1999] O.J. No. 5025, 101 O.T.C. 241 (S.C.J.) at para. 24.
[20] In Pyke, it was held (at para. 20) that factors that may inform the damages calculation in an odour nuisance case include:
(a) the frequency, degree and length of the interference;
(b) the effect of the odour on the health and comfort of the plaintiffs while on the land;
(c) the effect of the odour on the plaintiff’s enjoyment of the land; and
(d) the effect of the odour on the plaintiff’s activities on the land.
[21] Pyke involved claims by a group of plaintiffs who had been impacted by offensive odours from a neighbouring mushroom farm over a period of five years. They received awards of non-pecuniary damages ranging from $7,500 to $35,000 (in 1999 dollars).
[22] Deumo v. Fitzpatrick (2008), 39 C.E.L.R. (3d) 299 (Ont. S.C.J.) involved a nuisance claim arising from a neighbour’s use of an OWB. The defendants had used their OWB 67 times over the course of four years. J.A. Ramsay J. found that the locality in question was a low-density residential neighbourhood consisting of houses on large wooded lots where many people would expect to spend a great deal of time outdoors and everyone would expect to spend some time outdoors. The harm caused by smoke migration was severe enough to deprive the neighbours of the ability to stay outdoors in their yards or to go into the house and leave the windows open. It even caused them some disturbance when the windows were closed. It was a severe interference with the use and enjoyment of the property. The defendants continued to use their OWB despite their awareness of their neighbours’ concerns. Although the OWB was being used to heat the defendants’ garage, there was no utility in the defendants heating their garage by burning wood as opposed to using any other method available to him. The court awarded damages of $80,000.
[23] In the present case, the first occasion that the plaintiffs became aware of the defendants’ use of their OWB appears to have coincided with what Mr. Drummond says was the sole occasion that he tried burning some construction garbage which caused black smoke that hung low. This was before the chimney pipe extension had been attached. After that, Mr. Drummond says that he only burned hardwood.
[24] The heating season typically ran from October until April. The extent of the OWB’s operation would be driven by the weather. The amount of smoke would vary.
[25] In addition to the plaintiffs, another neighbour, Doreen Scott, testified. The plaintiffs also called an expert witness, Andrew Chan, an engineer, who was qualified to give opinion evidence on odour assessment and abatement.
[26] The plaintiffs’ property is across the road from the defendants’ home. The defendants’ OWB is located behind the defendants’ house. The distance between the OWB and the front door of the plaintiffs’ home is 113 metres.
[27] Ms. Rintoul described how she first noticed the OWB one day after coming home. She backed her vehicle into the garage and became aware of what she described as a terrible strong smoky odour of some kind in the garage itself. The same smell was outside. She realised that the smell was coming from across the road. She described the smell as having a chemical quality. She told her husband about the smell when he came home, and believes that her husband then went to speak to David Scott, a neighbour whose home is situated next door to the defendants.
[28] Ms. Rintoul explained that she does not dislike the smell of burning wood from a woodstove or a campfire. But what was coming from the defendants’ property was not pleasant at all. She says that she was aware of the smell from the time that the defendants started to use their OWB in mid-fall until mid-April, when they ceased. The smell was there all the time unless there was a strong wind from the west or it was a really cold sunny winter day.
[29] The plaintiffs’ home has a deck on three sides. The plaintiffs say that they smelled smoke whenever they walked out of the house or used the deck.
[30] The smoke from the OWB could not always be seen from the plaintiffs’ property, for instance, when the OWB was idling or smoldering.
[31] Photographs taken by Ms. Rintoul were entered into evidence. Some were taken from the plaintiffs’ property and others from the Scotts’ property. A number of them showed grey or dark smoke going up into the air or appearing to head across the defendants’ property in the direction of the plaintiffs’ home.
[32] Ms. Rintoul conceded that the photographs were what Mr. Collings, in cross-examination, described as “cherry-picked moments”. It was acknowledged that the Rintouls typically do not entertain on the deck between October and April. Nevertheless, the smell of smoke had other impacts on the plaintiffs’ activities. Ms. Rintoul hangs out the plaintiffs’ laundry to dry – she does not use a mechanical dryer. She avoided doing laundry on days when the smell was there, and would keep checking. Sometimes she had to go out and grab clothes off the laundry line if the smell of smoke picked up. She was also aware of the smell of smoke in the fall when she cleaned up the garden, although she conceded that she continued to clean up despite the smell.
[33] Since the removal of the OWB, the plaintiffs can do laundry whenever they want to (and the weather co-operates). Ms. Rintoul expressed relief about being able to walk outside the front door or use the patio and not smell the furnace.
[34] For some time, Ms. Rintoul kept a log of what she was smelling and seeing. She was challenged, on cross-examination, about some inconsistencies and gaps in the log. She candidly acknowledged that there were gaps when either nothing was happening, or she got tired of keeping a log and therefore made fewer entries.
[35] Laurie Rintoul, like his wife, had no doubt that the smoke smell came from the OWB. Although the Scotts had a wood burning furnace, he only smelled their furnace once.
[36] Mr. Rintoul described the smell as very unpleasant – sickening – and explained that both he and his wife were concerned about what the smoke might be doing to their health. He described how, on occasions, the smoke seemed to get trapped in the area around their house.
[37] After speaking with the Scotts, Mr. Rintoul tried to contact the defendants. He walked over to their house and rang the doorbell. There was no answer. He then phoned at least five times, although it appears that the number he called was Mr. Drummond’s business number. Eventually Mr. Drummond did call back. That was the only time they spoke on the phone. However, Mr. Rintoul decided to raise the matter with the local council. He wanted to know how the defendants had gotten permission to have an OWB (apparently Mr. Scott had been turned down the previous year when he applied for a permit).
[38] Not being satisfied with the response from the Township, Mr. Rintoul decided to commence an action in the Small Claims Court. He said that his objective was to get rid of the furnace. He attached a copy of a Lung Association article on the chemical content of certain smoke.
[39] Doreen Scott also described how smoke from the defendant’s OWB was, at times, dense and dark. She, too, described the smell as rather unpleasant.
[40] Ms. Scott recounted how one day Mr. Drummond had approached her and asked if she had put in an objection to his wood furnace. She claims – which Mr. Drummond disputes – that as she walked away, Mr. Drummond said to her that he was going to put an OWB in regardless. She said that he was very angry, and that he told her he had friends on council. Mr. Drummond denies this too.
[41] Although Ms. Scott said that she breathed in the unpleasant odours, she never complained to the defendants about the OWB. She and her husband thought that the Township was looking after the issue. However, she did concede that she was concerned about whether the ongoing presence of the smell of smoke would have a negative impact on property values.
[42] Ms. Scott said that ultimately she was pleased that the OWB was gone.
[43] By contrast to the accounts given by the plaintiffs and Ms. Scott, Mr. Drummond, who said that he was always outside doing something if he had the time, did not find that the smoke from the OWB impacted on his own use and enjoyment of his property.
[44] With a background in construction, Mr. Drummond designed and built the defendants’ house. He decided to go with an OWB and propane backup. He liked the idea of using a renewable resource. An added benefit was that his company sold firewood. He gave some thought to the location of the OWB. The prevailing winds off the lake were from west to east, so by placing the OWB to the east of his property, he expected that smoke would travel towards an open field to the east of his property.
[45] When he obtained a permit to build his house, Mr. Drummond was not aware of any specific requirement for a permit to install an OWB. The original application for a building permit made no reference to an OWB and showed that the fuel source for heating would be propane. He subsequently became aware that there was a concern about the OWB when he received an email from a building inspector asking if he was installing an OWB. It then became clear that the Township was not going to allow him to install an OWB unless he got a bylaw variance. He wrote a letter and went to a council meeting. Through that process he found out that he was outside of the requirements for an OWB, one of which was a minimum property lot size of three acres (the defendants’ lot is just over one acre).
[46] The OWB was installed after Mr. Drummond got an exemption from the bylaw. He acknowledged that a condition of the bylaw exemption was that he install a chimney extension. Although he ordered the extension as soon as he got the notice, he continued to use the OWB in the meantime. He said that he did so because no one had told him he could not. It was only on 17 December 2014 that he received a cease and desist notification from the Township.
[47] As previously noted, Mr. Drummond concedes that on one occasion, likely the date that Ms. Rintoul first became aware of the smell of smoke, he had burned some construction debris. He claims that since then, he only used hardwood. He acknowledged, however, that he had taken no other steps to mitigate the problem. He did not receive complaints from any other source and continued to use the OWB, not out of malice, but because it was the means by which he was heating his home.
[48] Mr. Drummond did acknowledge that the Township had made some efforts to persuade him to remove his OWB, including offering him some money to do so. But on closer consideration, Mr. Drummond had concluded that the economics of the Township’s offer did not work for him.
[49] The expert retained by the plaintiffs, Andrew Chan, undertook an odour study on 27 June 2019. Because of the direction of the prevailing wind on the day of his attendance, Mr. Chan was not able to take any odour readings on the plaintiffs’ property. Instead, using an approved methodology, he took samples directly from the stack connected to the defendants’ OWB. The smoke samples were collected in special plastic bags and then tested by a panel of assessors. Eight testers were used. Their sensitivity to odour is calibrated using a reference odour. 81% of the samples tested were described by the testers as “unpleasant”. The odour levels were in a range that indicated easily recognizable odours.
[50] Mr. Chan acknowledged that the local meteorological data, from the Ottawa airport, suggested that a majority of time the wind was blowing away from the plaintiffs’ property. Only 22% of the time were prevailing winds going to the southwest. However, Mr. Chan noted that the plaintiffs’ residence was beside a local body of water and that it was possible this could have produced a lake breeze effect.
Discussion
[51] I accept the plaintiffs’ evidence that they were troubled by smoke from the defendants’ property during the months that the OWB was in operation. I also accept, based on the evidence of all of the witnesses called by the plaintiffs, that the smell was unpleasant and interfered with their use and enjoyment of their property. While there is no evidence of any personal injury in the form of a health hazard or otherwise, the smell of the smoke caused the plaintiffs discomfort and some distress. The interference was more than trivial.
[52] The cases referred to by counsel show a wide variation in approach to the issue of damages.
[53] Pyke involved claims brought by a number of property owners against a nearby mushroom farm which, they allege, produced odours which disrupted their lives and the use of their properties. The source of the odours was believed to be the farm’s composting operation. The trial judge found that the odours produced by the composting process, even when carried out according to current state-of-the-art techniques, generated significant odours that could be extremely unpleasant.
[54] In submissions, the plaintiffs gave as an example a description of the complaints of one of the plaintiffs in the Pyke case, Jean Gardner, of whom it was said at para. 148 that:
“[B]ecause of the odours she no longer liked to sit outside, she had to interrupt her gardening, she had stopped walking her dog, and had to keep the windows closed. She said that on several occasions they had to cancel or cut short campfire parties, corn roasts and a family reunion…She said she felt like a prisoner in her own home. She said the odours permeated her house. The odours are unpredictable.”
[55] Ms. Gardner was awarded $35,000 in damages for nuisance of a duration of approximately five years. This would equate to approximately $56,000 in 2022.
[56] Not all of the damages awards in Pyke were as generous. Christopher and Christa Downs, who had a property with a deck and a swimming pool, were found to have been affected by odours about two or three times a week on average. They were unable to use their deck and pool on some days. They found that they had to close the windows and use their air conditioning more. They used to go for walks but the odours curtailed that activity. Ms. Downs had curtailed her gardening. She found it difficult to get her children to go outside. They described the odour as being like a septic tank and like ammonia. Ms. Downs said that it took her breath away and sometimes she had to hold her breath. She also said that it burned her eyes. Ms. Downs was at the property all the time, with the children. Mr. Downs was at work during the week. She was awarded $15,000 (approximately $24,000 in 2022); Mr. Downs was awarded $7,500 (approximately $12,000 in 2022).
[57] In Deumo, the plaintiffs were a married couple who sued their next door neighbours, another married couple, for nuisance in connection with smoke from the defendants’ outside wood stove. The trial judge found that the burning was frequent, it occurred in winter and summer. It caused heavy, acrid and obvious smoke which blanketed the plaintiffs’ backyard. J.A. Ramsay J. found, at para. 16, that:
“The consequences for the plaintiffs’ normal enjoyment of the property and the potential health risks were known to the defendants and were ignored by them. For the period in question the plaintiffs were entirely unable to enjoy their property other than using it simply for shelter. They could not go into the yard or leave their windows open, unless the defendant did not happen to be burning at the moment. Several of the trees on the plaintiffs’ property that were usually in line with the smoke died. I conclude that the smoke killed them.”
[58] The judge noted that the locality in question was a low density residential neighbourhood where people would be expected to spend a great deal of time outdoors.
[59] The defendant acknowledged having used the stove in question at least 67 times over a four year period. He had continued to do so after receiving letters of complaint. He had also not fully complied with a request by the local authority to restrict his burning to certain periods. The judge found, based on the evidence of other witnesses, that the defendants in fact burned at least twice as much as they said they did.
[60] The harm was severe enough to deprive the defendants’ neighbours of the ability to stay outdoors in their yards or to go to the house and leave the windows open. The plaintiffs were not unusually sensitive with respect to the use of their yard or their house. The defendant apparently used his wood burning stove to heat his garage, as opposed to using any other method available to him. The judge found that there was no utility in the method which he had chosen. There was also evidence of what the judge described as the defendant’s “persistent insouciance towards the well-being and property rights of his neighbours”.
[61] The plaintiffs were awarded general damages of $80,000 and punitive damages of $20,000.
Conclusions on Damages
[62] The effect of the nuisance in Deumo was clearly far more significant than that in the present case. While I accept that the plaintiffs suffered a serious and persistent interference with the use and enjoyment of their property, there is no indication that their health was in jeopardy. They were able to continue with many of their activities, although the unpredictability of when the smell of smoke would descend on their property was doubtless an aggravation. Their experience was more akin to that of the Downs in Pyke.
[63] I do not find the conduct of the defendants in the present case to resemble that of the defendants in Deumo. While the use of the OWB before the installation of the chimney pipe extension was antisocial and inconsiderate, I do not detect any malice on the part of Mr. Drummond.
[64] The ultimate mitigation, of course, occurred in the summer of 2020, when the defendants removed their OWB and undertook not to operate an OWB for the duration of their ownership of their property.
[65] Although the plaintiffs made a pitch for punitive damages, I indicated during the course of argument that I did not see the necessary elements to support such a claim in the evidence before me.
[66] I would assess general damages payable to each of the plaintiffs, in the amount of $20,000, for a total of $40,000. In addition, prejudgment interest should accrue from the date of removal of the defendants’ OWB to the date of this decision.
Costs
[67] Subject to any offers of settlement that should be taken into account, I am presumptively of the view that the plaintiffs should have their costs on a partial indemnity scale. If the parties are unable to agree on costs within fifteen days of the release of this decision, they should contact my judicial assistant, Aimee McCurdy, at Aimee.McCurdy@ontario.ca and I will provide such directions as may be appropriate for submissions on the issue of costs.
Disposition
[68] The plaintiffs will have judgment against the defendants, jointly and severally, in the amount of $20,000 each (for a total of $40,000) plus pre-judgment interest and costs in accordance with these reasons.
Graeme Mew J.
Released: 11 February 2022
COURT FILE NO.: CV-16-0054 (Perth)
DATE : 20220211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAURIE RINTOUL and ELEANOR RINTOUL
Plaintiffs
– and –
GREGORY DRUMMOND and KATHERINE CAPELLO
Defendants
REASONS FOR DECISION
Mew J.
Released: 11February 2022