COURT FILE NO.: CV-22-29055
DATE: 20240918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NICK JOSEPH DELAVALLE AND CHRISTINE ROPETER
Plaintiffs
– and –
MARTY JOSEPH ACCIAVATTI
Defendant
Paul M. Paciocco, Andrew Chorney, Heather Cross, for the Plaintiffs
Self-Represented
HEARD: March 21 and July 4, 2024
rasaiah j.
reasons for judgment
OVERVIEW
[1] This action, brought by the Plaintiffs, Nick Joseph Delavalle and Christine Ropeter, against the Defendant, Marty Joseph Acciavatti, seeks various heads of relief as against the Defendant for alleged intentional or reckless conduct that has caused a significant amount of harm, loss, damage, and interference to both the Plaintiffs and the surrounding community at large.
[2] On November 18, 2022, the Plaintiffs issued a Statement of Claim against the Defendant seeking, among other things, damages for multiple private nuisances, trespasses, mental distress, out-of-pocket expenses, and punitive damages. The Plaintiffs further seek mandatory and prohibitory permanent injunctive relief and their full costs of this action.
[3] On February 2, 2023, the Plaintiffs obtained a Court Order validating of service of the claim on the Defendant.
[4] On February 8, 2023, the Defendant was noted in default for failing to respond and/or file a Statement of Defence.
[5] On April 19, 2023, the Plaintiffs obtained a Court Order for production of Occurrence Summary Reports involving the Defendant, or the Defendant Property, from the Sault Ste. Marie Police Services (the “Police”).
[6] On October 12, 2023, the Plaintiffs brought a Notice of Motion seeking judgement and/or directions to proceed to an uncontested trial.
[7] On January 8, 2024, the Plaintiffs were directed by Court Order to an uncontested trial in this matter pursuant to Rules 19.05(3), 40.02(2), and 40.03(1) of the Rules of Civil Procedure.
[8] On March 21, 2024, the Defendant appeared for the hearing and sought to participate, which request was denied based on orally delivered reasons and written reasons provided thereafter.
[9] For the trial, the Plaintiffs filed a number of affidavits, police occurrence reports, news articles, photographs, letters (sworn to be accurate by author), parcel register, plan of subdivision and complaints to support all of the facts they have set out in their materials filed. I find the facts as alleged are prima facie uncontradicted and established. I have reviewed them all. In addition, the Plaintiffs testified, along with 3 lay witnesses, and 2 police officers that supported the evidence filed. I found no issues with their credibility and/or reliability on the record before me.
[10] The Plaintiffs filed a factum and books of authorities on which they are relying some of which I will reproduce herein based on correct principles of applicable law and fact (based on the evidentiary record) being set out.
[11] At the conclusion of trial, the Plaintiffs were advised that a further date for hearing further submissions may be required.
[12] On July 14, 2024, the Plaintiffs attended at the request of the court to provide further submissions regarding the injunctive relief being sought. Decision was thereafter reserved.
ANALYSIS/CONSIDERATIONS
Background
[13] The Plaintiff, Nick Joseph Delavalle, owns and occupies together with his common law spouse, Plaintiff Christine Ropeter, the property municipally located at 39 Pentagon Boulevard, Sault Ste. Marie, Ontario and legally described as: LT 7 PL H457 ST. MARY’S; SAULT STE. MARIE being PIN 31526-0007 (LT) (the “Plaintiff Property”).
[14] The Defendant owns and occupies the property municipally located at 29 Pentagon Boulevard, Sault Ste. Marie, Ontario and legally described as: LT 6 PL H457 ST. MARY’S; SAULT STE. MARIE being PIN 31526-0006 (LT) (the “Defendant Property”).
[15] The Plaintiff Property and Defendant Property are abutting as immediate neighbours in what the Plaintiffs describe as a historically sought after residentially zoned family neighbourhood in Sault Ste. Marie, Ontario. This was supported by the documents filed and viva voce evidence, including one of the police witnesses very familiar with the area.
[16] The Plaintiffs state that the Defendant has routinely engaged in and/or actively permitted illegal, illicit, disruptive, interfering, and egregious conduct to occur on the Defendant Property. The said conduct includes, but is not limited to the following:
(i) Creating and allowing his guests, invitees, tenants, squatters, occupants (collectively, the “Defendant’s guests”), and animals to create high volumes of noise during all hours of the day and night;
(ii) Trespassing and allowing the Defendant’s guests and dangerous dogs to trespass onto the Plaintiff Property and surrounding areas during all hours of the day and night;
(iii) Engaging in criminal and/or illegal activity and allowing the Defendant’s guests to engage in criminal and/or illegal activity including but not limited to, fighting, domestic violence, possession of stolen property, assaults, batteries, the sale and use of narcotics, and the discharge of firearms, all of which has required the Police to attend at the Defendant Property approximately one hundred and nineteen (119) times between May 18, 2019 and July 9, 2023;
(iv) Discharging and/or allowing the Defendant’s guests to discharge illegal firearms on the Defendant Property for which bullets have, in fact, struck the Plaintiff Property;
(v) Allowing the Defendant Property to be used as a storage facility for garbage, waste, bikes, furniture, personal items, and debris;
(vi) Allowing the Defendant Property to be overcrowded and over-occupied with, on frequent occasions, twenty (20+) or more individuals most of whom have no connection or relationship to the Defendant other than temporary room and board;
(vii) Allowing the Defendant’s guests to invite and encourage multiple people to temporarily reside at the Defendant Property at all hours of the day and night in furtherance of the aforesaid conduct;
(viii) Creating a city-wide reputation that the Defendant Property is a free-for-all residence and/or haven for illegal and illicit activity; and
(ix) Allowing and failing to prevent rats, canine fecal matter, and debris from escaping from the Defendant Property and entering upon the Plaintiff Property.
[17] The Plaintiffs describe the conduct of the Defendant and the Defendant’s guests as persistent, uninterrupted, and ongoing now for a period of at least five (5) years (at the time of the trial). As a result, the Plaintiffs and the surrounding community have suffered an immeasurable amount of turmoil, distress, and loss of the use and enjoyment of their respective properties.
Issues Raised
[18] The following are the issues:
Issue 1: Is the Defendant liable for the tort of private nuisance? If yes, what is an appropriate award of damages? The Plaintiffs are seeking $250,000 each, for a total of $500,000.
Issue 2: Is the Defendant liable for the tort of trespass to property? If yes, what is an appropriate award of damages? The Plaintiffs are seeking $25,000 each, for a total of $50,000.
Issue 3: Should the Plaintiffs be entitled to an award of punitive damages? If yes, what is an appropriate award of damages? The Plaintiffs are seeking $150,000.
Issue 4: Are the Plaintiffs entitled to permanent injunctive relief in the circumstances as requested in the draft proposed judgment they seek?
Issue 5: Costs.
Introduction
[19] I am satisfied that the evidence tendered by the Plaintiffs establish that the Defendant and/or Defendant’s guests have routinely engaged for at least the last five years (at the date of trial) in illegal, illicit, disruptive, interfering, and egregious conduct on their property. Their conduct has had a substantial interference with the Plaintiffs’ use and enjoyment of their property, including, but not limited to, their inability to use their back and front yard, having to relocate their bedroom to a safer location within their home, their inability to utilize their windows because of the smell and noise, their inability to host friends or family, and the amount of rats, animal feces, garbage and debris, that ends up all over their property. I am satisfied that the Plaintiffs, following an incident where bullets struck their property, have been experiencing perpetual fear and anxiety as a result of the Defendant and/or Defendant’s guests’ conduct. There was more than ample evidence on the record before me, including evidence of the plaintiffs, neighbours and police.
Issue 1: Is the Defendant Liable for the Tort of Private Nuisance? If Yes, what is an Appropriate Award of Damages?
Finding
[20] I find that the cause of action for private nuisance has been made out. The Plaintiffs have properly set out the law, which I have noted herein and reproduced.
[21] As the registered owners and occupiers of the Plaintiff Property, the Plaintiffs have capacity to sue the Defendant for nuisance.
[22] The Defendant has capacity to be sued as the creator of the nuisances complained of. The Defendant has capacity to be sued as the owner and/or occupier of the Defendant Property, allowing the nuisances to continue, with knowledge that they are continuing, and failing to take steps to put an end to same.
[23] A nuisance consists of an interference with the Plaintiffs’ use and enjoyment of land that is both substantial and unreasonable: Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13 at paras 18 and 19 (“Antrim”).
[24] The legal test for determining whether an interference rises to the level of nuisance, sets out that the interference with the owner’s use and enjoyment of land must be: (1) non-trivial; and (2) unreasonable in all of the circumstances. In determining whether the interference is unreasonable, the Court will assess certain factors such as the nature, severity, and duration of the interference, the character of the neighbourhood, the sensitivity of the Plaintiffs, and the use and utility of the Defendant’s activities: Antrim at para 26.
[25] On the record before me, the Plaintiffs have experienced the following categories of nuisances, all of which I agree can be said to have substantially and unreasonably interfered with the Plaintiffs’ rights, use, and enjoyment of the Plaintiff Property and established by the evidence adduced at trial which are not trivial:
(i) Noises: (a) police sirens and loud interactions resulting from the multiple police attendances at the Defendant Property; (b) the commotion of police chases and arrests being made in or around the Defendant Property; (c) shouting and boisterous arguments from altercations, domestic violence and assaults with weapons perpetrated by and amongst the Defendant and/or the Defendant’s guests at the Defendant Property; (d) unidentified banging noises coming from the Defendant Property; (e) the incessant sound of multiple dogs barking from within and around the Defendant Property at all hours of the day and night; (f) the repeated sound of the Plaintiffs’ exterior home alarm system being set off by the Defendant’s guests and/or animals trespassing on the Plaintiff Property; (g) the sounds and conversations of the Defendant’s guests coming and going from the Defendant Property during all hours of the day and night; (h) conversations that can be heard relating to the sale of illegal drugs and narcotics; (i) the sound of vehicles coming and going from the Defendant Property, which often includes the sounds of vehicle engines revving, during all hours of the day and night; (j) the sound of gunshots from weapons located on the Defendant Property; and (k) loud music and the sounds of partying coming from the Defendant Property during all hours of the day and night. This was confirmed and supported by the witnesses who testified and police records filed.
(ii) Odours: foul odours and noxious fumes continuously emanate from the Defendant Property attributable to, amongst other things: (a) garbage and assorted debris that continuously pile up on the Defendant Property (despite the City’s Integrated Municipal Enforcement Team ordering the removal of same on multiple occasions); (b) multiple dogs owned by the Defendant and/or the Defendant’s guests that defecate and urinate all over the Defendant Property, as well as on occasion, the Plaintiff Property, which the Defendant and/or the Defendant’s guests fail to remove; and (c) smoke coming smoking and/or burning of drugs, including narcotics, that are being smoked by the Defendant and/or the Defendant’s guests on the Defendant Property. This was supported by the witnesses who testified and the documents filed.
(iii) Trespasses: The Defendant and the Defendant’s guests frequently pass through or otherwise attend upon the Plaintiff Property for unlawful purposes. At times, the Police are required to pass through or otherwise attend upon the Plaintiff Property in pursuit of the Defendant and the Defendant’s guests. Additionally, the Defendant and the Defendant’s guests continuously allow dangerous dogs to run-at-large on the Plaintiff Property, some of which animals are frequently found on the front steps of the home on the Plaintiff Property. This was confirmed and supported by the witnesses who testified and documents filed.
(iv) Bullets: The Plaintiff Property has been struck by bullets from a sawed-off .22-calibre rifle that was fired by one of the Defendant’s guests from inside the garage located on the Defendant Property at approximately 9:30 a.m. on June 11, 2022 (the “Gunshot Incident”). The bullets exited the side of the Defendant’s garage in two locations and struck the chimney of the home on the Plaintiff Property. This was confirmed by the police witnesses who testified and records filed.
[26] The Plaintiffs have established that they have suffered and continue to suffer a substantial interference with the use and enjoyment of the Plaintiff Property in the following, non-exhaustive ways:
(i) The frequent repeated actions, and interferences of the Defendant and/or the Defendant’s guests have created an unsafe environment for the Plaintiffs such that the Plaintiffs are and feel completely deprived of any use or enjoyment of their private outdoor space in the front and rear of their house. The Plaintiff Property: (a) constantly smells of debris, garbage or dog urine and feces; (b) is littered with animal fecal matter; and (c) is frequently occupied by trespassers who are using drugs and/or are extremely loud and confrontational. The Plaintiffs do not feel safe nor comfortable enjoying the Plaintiff Property either alone or in the company of guests;
(ii) The Plaintiffs have stopped sleeping in what was their primary bedroom which is located on the upper level of their home given the amount of noise coming from the Defendant Property during all hours of the day and night and because of the level of insecurity they feel because of the continuous and unrelenting conduct of the Defendant and/or the Defendant’s guests. This insecurity was exacerbated by the Gunshot Incident. The Plaintiffs have relocated themselves to the basement of their home, where it is somewhat quieter and where they feel somewhat safer. In order for Plaintiff Christine Ropeter to feel safe enough to sleep at night, Plaintiff Nick Delavalle is often asked to stay awake and guard their home from the living room of the Plaintiff Property for long hours throughout the night;
(iii) The Plaintiffs are unable to open or utilize their windows to access fresh air because of the noise and offending odours;
(iv) The Plaintiffs are unable to host their friends or family inside their home because they are concerned for their guests’ safety while attending at the Plaintiff Property;
(v) The Plaintiffs are required to actively monitor their safety and monitor their home with surveillance devices for their safety and to protect the Plaintiff Property;
(vi) The Plaintiffs are often required to clean up debris and dog feces, coming from the Defendant, guests, or their animals that they find on the Plaintiff Property;
(vii) The Plaintiffs are required to protect their home against the invasion of rats which come from the Defendant Property; and
[27] The Plaintiffs consistently experience a considerable amount of stress and anxiety. They do not feel a sense of safety, peace, or enjoyment in or around their own home as a direct result of the constant nature of the interferences arising from the Defendant Property.
[28] I agree that the nature and extent of the above interferences are substantial and not trivial to the reasonable person balancing the gravity of the harm against the utility of the defendant’s conduct in all of the circumstances: Antrim at para 26.
[29] The evidence of the police witnesses indicated the numerous attendances and issues at the property. The court heard from witness Kim Ligouri that one of the reasons she left her residence which was located across from the Defendant Property was because of all the issues.
[30] In Tock v. St. John’s Metropolitan Area Board, the Supreme Court of Canada (the “SCC”), noted, “the severity of the interference and the character of the neighbourhood are important factors in assessing the gravity of the harm”: 1989 CanLII 15 (SCC), [1989] 2 SCR 1181 at p 1191.
[31] In Milne v. Saltspring Island Rod and Gun Club, 2014 BCSC 1088 at para 43, Myers J. citing Clerk & Lindsell on Torts, 20th ed. (London: Thomson Reuters (Legal), 2010) at para. 20–10 wrote:
…in organised society everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his [or her] neighbours…and the courts in deciding whether an interference can amount to an actionable nuisance have to strike a balance between the right of the defendant to use his [or her] property for his [or her] own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his [or her] property.
[32] The Court in Antrim at paras 28–29 noted, “…The nature of the defendant's conduct is not, however, an irrelevant consideration. Where the conduct is either malicious or careless, that will be a significant factor in the reasonableness analysis.”
[33] The evidentiary record establishes that the interferences are far greater than trivial.
[34] The record (exhibits and witness testimony) establishes the following:
(i) Frequency, Duration and Severity of the Interference: The interferences experienced by the Plaintiffs are intense, severe, frequent, and long in duration. They occur at random points during all hours of the day and night and are impossible to predict. The police have attended there more than one hundred times. The police monitor because of the Defendant Property activities.
(ii) Character of the Neighbourhood: The Plaintiff Property is located in the area of Sault Ste. Marie colloquially referred to as the “P-Patch”. It is a well-established and sought-after residential neighbourhood filled with families who would not expect to be subjected to the interferences regularly experienced by the Plaintiffs.
(iii) Plaintiff’s Sensitivity: The nature, degree and frequency of the interferences are such that any reasonable person would regard them as offensive and intolerable. There has been substantial and enduring interference with the Plaintiffs use, and enjoyment of the Plaintiff Property. The various noises, odours, dog excrement, bullets and trespasses are experiences that an ordinary person would not reasonably expect to endure in their home and/or on their private property located in a residential neighbourhood such as the P-Patch. This has been ongoing for five or more years. This is not a situation where the Plaintiffs are being intolerant to trivial interference.
(iv) Utility of the Interference: In this case, the interferences experienced by the Plaintiffs on the Plaintiff Property serve little to no functional purpose or utility to the Defendant. I cannot see how they could. Some of the disturbances do not stem from a legitimate use of the Defendant’s residential home, located in a residential and otherwise peaceful neighbourhood and stem from dangerous and illegal activity, including drug use, altercations, and firing of guns.
(v) Defendant’s Conduct: The Defendant and the Defendant’s guests’ conduct is disruptive, dangerous, and disturbing. It presents as ungovernable given the repeated police attendance that results in no permanent change. There is a re-occurring disregard for and risk to the health and safety of the Plaintiffs, P-Patch residents, and the Police. The various noises, odours, dog excrement, disorderly conduct and people continuously trespassing through the Plaintiff Property have not only caused severe disruption to the Plaintiffs’ use and enjoyment of the Plaintiff Property, but also to other homeowners and occupiers living in the neighbourhood. Such conduct and the permitting of the Defendant guests to conduct themselves in such a manner have resulted in notoriety and a community-wide feeling of unease and disturbance throughout this neighbourhood. The Defendant’s conduct and the conduct of the Defendant’s guests is so frequent and extreme that it often requires Police involvement or intervention. Between May 18, 2019, and July 9, 2023, the Police attended the Defendant Property and filed Occurrence Summary Reports on one hundred and nineteen (119) occasions.
[35] Despite multiple Police attendances at the Defendant Property, which have involved multiple officers attending with guns drawn, as set out in the Police Occurrence Summary Reports, and confirmed by the evidence of the police witnesses who testified, there has been no permanent change or improvement in the conduct of the Defendant or the Defendant’s guests. The interferences have reoccurred for over five years now. Police involvement and intervention has not deterred the Defendant’s conduct or management of his guests. This is very concerning.
[36] Based on all these considerations, the Plaintiffs have established that the conduct of the Defendant and the Defendant’s guests in allowing noise, odours, animal feces, bullets, people, and animals to cause disturbances and interference amounts to a substantial interference with the Plaintiffs’ use and enjoyment of the Plaintiff Property. The interferences are objectively unreasonable in light of all of circumstances, and serious.
General Damages
[37] The Plaintiffs seek $250,000 each for a total of $500,000 in general damages.
[38] When granting damages, the court has discretion, on a case-by-case basis, by reference to, and comparison with, awards granted to other claimants: Willis v. Halifax (Regional Municipality), 2009 NSSC 244 at paras 71-72, rev’d in part, Halifax (Regional Municipality) v. Willis, 2010 NSCA 76 on the issue of prejudgement interest (“Willis”).
[39] I agree with counsel, that nuisance awards with regards to neighbourly misconduct is somewhat underdeveloped and there is limited case law available for guidance “on all fours” with this specific set of circumstances.
[40] The assessment should be reflective and made in careful consideration of the facts of the case, the correct applicable law, evidentiary foundation, and the relevant factors: Huang v. Fraser Hillary’s Limited, 2018 ONCA 527 (“Huang”), paras. 44-48.
[41] The Plaintiffs are also seeking permanent injunctions (discussed later herein) and same has been viewed as a consideration, namely whether one or the other or both should be awarded and to what extent: Suzuki v. Munroe, 2009 BCSC 1403, para. 108 (“Suzuki”). In my view, the complaints of the Plaintiffs in this case are more varied and distinguishable from the nuisance found in Suzuki¸ and accordingly that granting both a higher damage award and an injunction may be appropriate. In Suzuki, the Plaintiffs took issue with a very loud air conditioner that the defendants had installed, above the usual decibel of air conditioners, and ultimately, it was a nuisance. In Suzuki, the plaintiff was granted an injunction and damages of $4,000.
[42] The case of Pyke v. Tri Gro Enterprises Ltd., [1999] OJ No 5025, 1999 CarswellOnt 4253 (SC), aff'd 55 OR (3d) 257, 2001 CanLII 8581 (CA), leave to appeal to SCC ref'd, 28789 (13 June 2002) involved a farm operator found to be emitting a foul odour, which was disrupting the plaintiff’s use of their lands and affecting their physical wellbeing. At para. 24, Ferguson J. noted the following:
I recognize that in deciding whether or not an act constitutes a nuisance the court must balance a variety of interests, but I am doubtful that a plaintiff should be denied damages because an injunction is available. It seems to me that the purposes of damages and injunctions in nuisance cases are entirely different. Damages are intended to compensate for the past harm; an injunction is intended to prevent future harm.
[43] In Rathmann v. Rudka, [2001] OJ No 1334 (SC) at para 20 (“Rathmann”), Sheppard J. noted the following:
…the courts are giving monetary awards to persons subjected to neighbourly misconduct and who are affected by it. Much depends on the facts, but it does appear that if the court finds misconduct which causes even mild distress, then the court is prepared to grant an award of damages to compensate the aggrieved party. And perhaps this is the way it should be - what can a person do when subjected to neighbourly misconduct be it, for example, regular loud playing of music - conduct which interferes with other persons right to privacy and their quiet use and enjoyment of their property.
There is no recourse unless the courts are prepared to receive these complaints, and if necessary, extend the law of private nuisance to cover the realities of the present age, and attempt to assess damages as a deterrent. Should misconduct and the damaging effect thereof be proven, then a further deterrent might well be an award of costs on a solicitor and client basis.
[44] The case of Rathmann involved a defendant who continually harassed the neighbouring plaintiff over the span of five (5) years. In that case, the court awarded the plaintiff general damages in the amount of $8,000. Although a similar timeline, the Plaintiffs in the case at bar, factually, have been subjected to much more.
[45] In Deumo v. Fitzpatrick, 2008 OJ No 3015, 2008 CarswellOnt 4543 (SC) (“Deumo”), $80,000 was awarded in general damages for nuisances in connection to noise and excessive fire smoke created by an outdoor wood stove used sixty-seven times over the span of four years. The smoke invaded the claimant’s backyard prohibiting the use of their windows and backyard. In Deumo, the defendant did not care how his actions affected his neighbours. While I cannot find that the Defendant in this case does not care, he has not taken steps to eliminate the nuisances and/or reduce them to a tolerable level.
[46] In Willis, the Plaintiff was awarded $55,000 in damages for nuisance the cause of which was odours from a sewage treatment plant located beside his rural property, where the plaintiff and his family had resided for nearly twenty (20) years. The plaintiff was unable to enjoy the outdoors or keep his windows open.
[47] In Gokey v. Usher, 2023 BCSC 1312 (“Gokey”), the plaintiff was awarded $150,000 in general damages where the neighbour defendant produced excessive fire smoke and operated loud machinery at early times in the morning. In Gokey, the court commented on the deliberate nature of the activities the defendant engaged in, and his knowledge of the problems for his neighbours and the continued nuisance.
[48] In this case, although the Defendant may not be deliberately engaging in each and every one of the activities complained of, there is no doubt in my mind, the Defendant is well-aware, or ought to be well-aware, of his conduct and the conduct of this guests and the effect same is having on the Plaintiffs and his neighbours. I agree this is supported by the number of police attendances at the Defendant Property, volume of Police Occurrence Summary Reports issued for the Defendant Property and continued police monitoring. Allowing these nuisances to occur/re-occur to the extent they have over a period of more than five years and/or being wilfully blind to same in these specific circumstances, is not acceptable and a consideration for ordering a high damage award.
[49] In the case at bar, the extent of the nuisances in this case are more significant in comparison to those listed herein, the length of time the nuisances have been going on is significant, the record reflects that the Plaintiffs have accessed all resources available to them before bringing this claim to address them without permanent success. The Defendant knew or ought to have known or has been wilfully blind to nuisances of a very serious nature. The situation is objectively more than intolerable. The innocent Plaintiffs and innocent neighbours are being placed in very dangerous situations. It is not going too far based on the evidentiary record to state that one of the Plaintiffs could have been seriously injured or killed in the Gunshot Incident. Both Plaintiffs have been significantly impacted by the nuisances in so many ways, mentally, emotionally, and physically.
[50] I will also be ordering injunctive relief which I have balanced with coming to my decision on this issue. This is a factor I have considered on quantum of damages.
[51] Based on the above, I fix and award general damages of $180,000 to each plaintiff, for a total of $360,000. The circumstances warrant a high award.
Damages for Mental Distress Flowing from Nuisance
[52] The Plaintiffs are also claiming damages for mental distress. Such damages may be awarded: Saelman v. Hill, 2004 CanLII 9176 (ON SC), [2004] OJ No 2122, [2004] OTC 440 (“Saelman”); Johnson v. Cline 2017 ONSC 3916 at paras 117 and 124, aff’d on other grounds in Cline v. Drummond, 2019 ONCA 188 (“Johnson”).
[53] In Saelman, the dispute between neighbours involved incidents in which the police were called related to interferences with each other’s property rights. The Court awarded the plaintiff $6,000 in general damages for nuisance and $7,500 for increased pain and mental suffering attributable to the defendant’s conduct. In the counterclaim, the Court awarded the defendant $6,000 in general damages for nuisance and $5,000 for mental distress.
[54] In Johnson, the plaintiffs had endured various interferences including: being yelled and sworn at while they were on their own property; having a private investigator trespass upon their property to take photographs of their house; journaling of the plaintiffs’ day-to-day activities and reporting same to the police; in excess of 100 cigarette butts being thrown on their property; repeated complaints to the police and the regional by-law enforcement authorities with respect to trivial or unfounded matters; and the digging down to and chopping of roots of a tree belonging to the plaintiffs which had grown under the fence and onto the defendant’s property, requiring the tree’s removal. The plaintiffs felt like “prisoners in their own home” and that “on a virtually daily basis for six (6) years, they have felt it necessary to govern their actions, to an unreasonable degree,” to avoid further interferences.
[55] When awarding damages for mental distress, expert evidence is not required, nor must it be established that the distress rises to the level of a diagnosed psychiatric condition: Johnson, at para. 123.
[56] In Johnson, the plaintiffs both testified as to the decline of their mental health as a result of the ongoing disputes. They both were seeing their family physicians for stress and anxiety and were taking a prescribed medication for those symptoms. However, Mrs. Johnson also conceded in her testimony that part of the stress and anxiety she experienced could be attributed to the loss of her employment. Similarly, Mr. Johnson testified that his stress and anxiety could be equally attributed to the ongoing situation with the neighbour and the possibility of losing his job due to a downsizing at work. In Johnson, the Court awarded one of the plaintiffs $3,000 for mental distress, above and beyond $15,000 in general damages award for nuisance. The other plaintiff received $1,500 for mental distress attributable to the nuisance.
[57] In the case at bar, the Plaintiffs live in fear. The Plaintiffs have suffered as a result of the conduct of the Defendant and/or the Defendant’s guests. They have had to limit their daily activities and forgo enjoying the use of main areas of their own property, inside and outside. They are constantly fearful of someone attempting to break into their home or getting into an altercation with the Defendant or the Defendant’s guests. Ever since the Gunshot Incident, the Plaintiffs live with the constant dread that at any time, a stray bullet may come flying through the living room of their home. The Plaintiffs relocated their primary bedroom to their basement to feel some sense of safety in their own home. The nuisances have been going on for more than five years. I have no difficulty accepting that the Plaintiffs have suffered mental distress on the facts of this case. The Plaintiffs have been subjected to interferences by the Defendant and/or the Defendant’s guests in a frequency, duration and severity which is intolerable. A case for damages for mental distress on top of general damages is made out.
[58] Proportionality in my view must be applied, with overlap of complaint with the general damages on the nuisance claim. I have made a large general damage award.
[59] Based on the above, I fix and award damages for mental distress in the amount of $10,000 for each plaintiff for a total of $20,000.00.
Issue 2: Is the Defendant Liable for the Tort of Trespass to Property? If Yes, What is an Appropriate Award of Damages?
Finding
[60] The Plaintiffs case for trespass has been made out.
[61] A summary of the elements is set out in Grace v. Fort Erie (Town), 2003 CanLII 48456 (ON SC), [2003] O.J. No. 3475 at para. 86:
Trespass——Elements of Trespass
86 The elements of trespass have been described as follows:
• Any direct and physical intrusion onto land that is in the possession of the plaintiff (indirect or consequential interference does not constitute trespass).
• The defendant's act needs not be intentional, but it must be voluntary.
• Trespass is actionable without proof of damage.
• While some form of physical entry onto or contact with the plaintiff's land is essential to constitute a trespass, the act may involve placing or propelling an object, or discharging some substance onto the plaintiff's land can constitute trespass. [Citations omitted.]
[62] The Defendant routinely permits his guests and animals which are staying on the Defendant Property to trespass onto the Plaintiff Property without any lawful jurisdiction to do so demonstrated by the photographs filed and the testimony of the witnesses. The trespasses include the following:
(i) The Plaintiff Property is routinely used as a public throughway to the Defendant Property by the Defendant’s guests during all hours of the day and night, without regard for the Plaintiffs’ private property rights;
(ii) The Defendant’s guests occasionally traverse over the Plaintiffs’ fence and through the Plaintiffs’ backyard in efforts to evade Police;
(iii) The Defendant’s guests’ vehicles occasionally pull into and occupy the driveway of the Plaintiff Property during all hours of the day and night;
(iv) The Defendant’s guests and animals routinely loiter on or around the Plaintiff Property, including on or around the main entrance to the Plaintiffs’ home, as captured by the Plaintiffs’ security cameras; and
(v) The Defendant and the Defendant’s guests’ animals routinely urinate on the fence located on the Plaintiff Property and defecate on various areas of the Plaintiff Property.
Damages
[63] Damages for trespass to property are assessed on a case-by-case basis and with reference to, and comparison with, awards granted to other claimants.
[64] Case authorities awarding damages for trespass to property include:
(i) Gokey, wherein a single instance of trespass by a neighbour, which involved opening the door to their home and depositing an envelope on the floor inside the home, justified an award of $2,500; and
(ii) Leroux v. Casselman (Village) 2011 ONSC 4070 wherein an applicant who operated a flower shop and resided beside a vacant lot upon which the applicant had a right of way, brought an action for trespass, interference and nuisance against the respondent Village who opened a public square that hosted markets and other events in the vacant lot (“Leroux”). The respondent Village often closed the public street for events allowing patrons to freely roam the vacant lot and at times park on the applicant’s property. The Court found that the respondent’s unreasonable conduct in allowing its patrons to occasionally park on the applicant’s property had shown complete indifference to the applicant’s property rights and, in fact, substantially interfered with them. As such, the Court awarded the applicants general damages for trespass to property in the amount of $8,000.
[65] The nature and frequency of trespasses occurring on the Plaintiff Property are aggravating factors. The Plaintiffs have been subjected to numerous trespasses on an extremely frequent basis. In fact, their security cameras have captured hundreds of instances wherein the Defendant’s guests, or their animals have crossed the Plaintiff Property without lawful jurisdiction. Similar to the finding in Leroux, where the respondent Village was held liable for the trespasses to property committed by its patrons, the Defendant permits his guests and dogs staying on the Defendant Property to freely roam onto the Plaintiff Property. In all instances, the Defendant has demonstrated a total lack of regard and indifference for the Plaintiff’s property rights as evidenced by the continuous trespasses perpetrated by the Defendant, the Defendant’s guests, and their respective animals.
[66] Proportionality in my view must be applied, with overlap in complaint with the general damages on the nuisance claim as I have previously noted.
[67] Recognizing the time and aggravating features, and based on the above, I fix and award each plaintiff $20,000.00.
Issue 3: Should the Plaintiffs Be Entitled to an Award of Punitive Damages? If Yes, What is an Appropriate Award of Damages?
Principles
[68] The Supreme Court of Canada considered and established the principles and objectives of punitive damages in Whiten v. Pilot Insurance Co. 2002 SCC 18 (“Whiten”) wherein Binnie J. wrote: “Punitive damages are awarded against a Defendant in exceptional cases for malicious, oppressive, and high-handed misconduct that offends the court’s sense of decency”. The Court may award punitive damages where it finds the defendant engaged in misconduct that represents a marked departure from the ordinary standards of decent behaviours. The objective of punitive damages is to punish the defendant rather than to compensate a plaintiff: Whiten v. Pilot Insurance Co. at para 36.
Marked Departure
[69] The Defendant’s conduct as detailed above, constitutes a marked departure from the ordinary standards of decent behaviour reasonably expected from a neighbour and its guests in a residential neighbourhood. It seems obvious in my view. This is an exceptional case.
[70] In fact, the conduct of the Defendant and the Defendant’s guests is so egregious, dangerous, and at times criminal, it necessitates the frequent involvement and intervention of Police. Notwithstanding such Police involvement nor the commencement of these Court proceedings, the Defendant and Defendant’s guests continue to conduct themselves in a manner which has proven to be ungovernable. The continuous conduct of the Defendant and the Defendant’s guests demonstrates a blatant disregard and wilful indifference for the impact their actions and behaviours have on the Plaintiffs and the community at large. Simply put, nothing thus far has been able to deter the conduct of the Defendant and the Defendant’s guests. The Defendant has been aware of the acts complained of for some time.
[71] The conduct of the Defendant and the Defendant’s guests has unilaterally altered the character and compromised the safety of an entire residential neighbourhood. It has adversely affected the lives, property rights, and peaceful enjoyment of multiple families, including the Plaintiffs, and, at times, even jeopardized innocent human lives.
Quantum
[72] When considering the appropriate quantum for an award of punitive damages, the Court must consider the following general principles as set out by the Court in Whiten:
(i) The general objective of punitive damages is punishment, deterrence of the wrongdoer and others, and denunciation of blameworthy conduct. Punitive damages are the means by which the judge expresses its outrage at the egregious conduct of the Defendant;
(ii) The Court is entitled to consider the fact and adequacy of any prior penalty imposed in any criminal or other similar proceeding brought against the Defendant in limiting an award of punitive damages;
(iii) The incantation of the time-honoured pejoratives (“high handed”, “oppressive”, “vindictive” etc.) provides insufficient guidance to the judge setting the amount of punitive damages. A more principled and less exhortatory approach is desirable;
(iv) In directing itself to the punitive damages, the court should relate the facts of the particular case to the underlying purpose of punitive damages and ask itself how, in particular, an award would further one or other of the objectives of the law and what the lowest award that would serve such a purpose;
(v) It is rational to use punitive damages to relieve a wrongdoer of its profit where compensatory damages would amount to nothing more than a license fee to earn greater profits through outrageous disregard of the legal or equitable rights of others;
(vi) None of the common law jurisdictions have adopted a formulaic approach such as a fixed cap ration between compensatory and punitive damages. The proper focus is not on the plaintiff’s loss, but on the Defendant’s misconduct; and
(vii) The governing rule for quantum is proportionality. The overall award, that is to say, compensatory damages plus punitive damages plus any other punishment related to the same misconduct, should be rationally related to the objectives for which punitive damages are awarded.
[73] While the Court has complete discretion when awarding an amount of punitive damages, the Court should award an amount as the Court feels may be necessary to properly address the egregious conduct of the Defendant. Such award must balance proportionality with the objectives of denouncement of the Defendant’s conduct and deterrence of future wrongful conduct.
[74] With the above-noted principles in mind, the assessment of the amount of such damages was addressed in Baring v. Farm Credit Corporation, 2019 BCSC 1965 wherein Gomery J. stated: “… I am satisfied that I should make an award of punitive damages to give the defendants their just deserts, deter them and others from similar misconduct in the future and mark the community’s collective condemnation of what has happened. The difficult question is the amount.”
[75] In assessing the proper quantum, proportionality is one of the Court’s most important considerations and requires that an award of punitive damages be:
(i) Proportionate to the blameworthiness of the defendant’s conduct – the more reprehensible the conduct, the higher the rational limits of the potential award. Factors include outrageous conduct for a lengthy period of time without any rational justification, the defendant’s awareness of the hardship it knew it was inflicting, whether the misconduct was planned and deliberate, the intent and motive of the defendant, whether the defendant concealed or attempted to cover up its misconduct, whether the defendant profited from its misconduct, and whether the interest violated by the misconduct was known to be deeply personal to the plaintiff;
(ii) Proportionate to the degree of vulnerability of the plaintiff – the financial or other vulnerability of the plaintiff, and the consequent abuse of power by a defendant, is highly relevant where there is a power imbalance;
(iii) Proportionate to the harm or potential harm directed specifically at the plaintiff;
(iv) Proportionate to the need for deterrence – a defendant’s financial power may become relevant if the defendant chooses to argue financial hardship, or it is directly relevant to the defendant’s misconduct, or other circumstances where it may rationally be concluded that a lesser award against a moneyed defendant would fail to achieve deterrence;
(v) Proportionate, even after taking into account the other penalties, both civil and criminal, which have been or are likely to be inflicted on the defendant for the same misconduct – compensatory damages also punish and may be all the “punishment” required; and
(vi) Proportionate to the advantage wrongfully gained by a defendant from the misconduct.
[76] In this case, it is in the best interests of the Plaintiffs and the community at large that the continuous and undeterred conduct of the Defendant and the Defendant’s guests be denounced and deterred. The Court should send an unequivocal message not only to the Defendant, but to all others who attend the Defendant Property, that such conduct will not be tolerated or accepted in civil society. They are making innocent people’s lives a “living hell”.
[77] The Defendant is aware of the detrimental effects his conduct and the conduct of the Defendant’s guests have on the Plaintiffs and the surrounding community generally but has not prevented or reduced the nuisances and trespasses.
[78] Decisions of a similar nature to this case, in which the Court awarded punitive damages, include:
(i) Gokey v. Usher wherein punitive damages were awarded in the sum of $50,000 to address intentional creation of a nuisance (the production of firewood smoke). The defendant was well-aware of the effects of his actions on the plaintiffs. The Court found that the defendant’s placement of various burning devices and his excessive production of smoke, whilst knowing its detrimental effect on the defendants and their property over a number of years, constituted conduct that supported an award of punitive damages. In reaching its decision, the Court noted that the plaintiff had shown a complete disregard for the emotional and physical health of the defendants and their property rights and that any award of punitive damage must be sufficient to deter the conduct;
(ii) Kreiser v. Garber 2020 ONCA 699 wherein punitive damages were awarded in the sum of $100,000 for construction of an encroaching dock on neighboring lands which constituted a nuisance, and which failed to be situated in conformity with the permit obtained for such construction. The dock, as constructed, interfered with the neighbouring property owner’s use and enjoyment of their waterfront and boat. The Court determined that punitive damages were merited because the defendant owner rejected the plaintiff’s offer to “fix” the mistaken location of the dock at no expense to the defendants and, even after the defendant property owner learned during construction that the dock was in the wrong location, he instructed the defendant builder to continue building the dock; and
(iii) Weenen v. Biadi 2015 ONSC 6832, aff’d on appeal in 2017 ONCA 533 was a case wherein the defendant dumped “thousands of truckloads of material” on his property causing severe flooding to the plaintiff’s land and intentionally obstructed a culvert under his driveway, which increased the flooding. In addition, the defendant improperly constructed a swale on his property that added to the amount of water flowing onto the plaintiff’s land. In considering the claim for general damages, the trial judge found that the defendant’s conduct had caused the plaintiff “significant and prolonged harm including distress, frustration, anxiety, and loss of the reasonable use and enjoyment of his home for over 12 years.” The trial judge awarded the plaintiff general damages in the amount of $250,000. On the issue of punitive damages, the Ontario Court of Appeal agreed with the trial judge that the appellant’s conduct could be described as “high-handed, malicious, arbitrary, and highly reprehensible that departs to a marked degree from the ordinary standards of decent behavior.” The Court went on to find that it “agree[d] that in the circumstances of this case, particularly given the length of time that the appellant conducted himself in this fashion and his intransigence, an award that addresse[d] the issue of deterrence was clearly warranted.” The Court further affirmed the trial judge’s original award for punitive damages in the amount of $125,000.
[79] The above being said, I recognize that the Defendant may not have been aware of all acts that occurred by tenants and/or other guests until after the fact. Further, it appears that the Defendant is being “run” by the occupants. Police witnesses indicated a desire and some effort on the part of the Defendant to work with them to control the issues. He has not totally or always “thumbed” his nose at the complaints. But he certainly is aware and has not done much to stop the continued issues on the record before me. He presents as having lost control at the very least.
[80] The Plaintiffs have suffered quite significantly, over many years, and the cumulative effect is substantial. I have made the general damages high as a result. Proportionality must be applied. Several injunctions are also sought and will be ordered by me as set out below.
[81] Based on the above considerations and proportionality, I fix and award each plaintiff $50,000 in punitive damages.
Issue 4: Are the Plaintiffs Entitled to Permanent Injunctive Relief in the Circumstances?
Principles
[82] An injunction is an appropriate remedy for both trespass and nuisance.
[83] Usually, injunctions tend to be granted when damages will not suffice, however, as the Plaintiff highlighted in their factum on page 12 in reference to Pyke v. Tri Gro Enterprises Ltd., 2001 CanLII 8581 (CA), “damages are intended to compensate for the past harm; an injunction is intended to prevent future harm.” I agree that this applies to this case and that this is a case for granting both permanent injunctions and damages. This is one of the worst cases of ongoing continuous wrongful nuisance, and trespass.
[84] The Court of Appeal for Ontario recited some relevant passages from the book Injunctions and Specific Performance, in the case 1465152 Ontario Ltd. v. Amexon Development Inc., 2015 ONCA 86, para. 23:
23 As the law in Ontario currently stands, different considerations apply in the latter circumstance, as was explained in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (consulted on 30 January 2015), (Toronto: Canada Law Book, 2014), at 4.10 and 4.20:
Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favored. This is especially so in the case of direct infringement in the nature of trespass.
The reason for the primacy of injunctive relief is that an injunction more accurately reflects the substantive definition of property than does a damages award. It is the very essence of the concept of property that the owner should not be deprived without consent. An injunction brings to bear coercive powers to vindicate that right. Compensatory damages for a continuous and wrongful interference with a property interest offers only limited protection in that the plaintiff is, in effect, deprived of property without consent at an objectively determined price. Special justification is required for damages rather than an injunction if the principle of autonomous control over property is to be preserved. A damages award rather than an injunction permits the defendant to carry on interfering with the plaintiff's property.
[85] In Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71 at paras 24–36, the court wrote that the test for permanent injunctive relief requires the Court to address the following five questions:
(i) Has the plaintiff proven all the elements of a cause of action that has been established or threatened?
(ii) Has the claimant established, to the satisfaction of the Court, that the wrongs that have been proven are sufficiently likely to occur or recur in the future such that it is appropriate for the Court to exercise the equitable jurisdiction of the Court to grant an injunction?
(iii) Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong?
(iv) If not, are there any terms that should be imposed on the plaintiff as a condition of being granted the injunction?
(v) In any event where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent?
Elements of the Action
[86] As stated above, I am satisfied that the plaintiffs have established the elements of the above-noted causes of action such as to entitle them to permanent injunctive relief. I will not repeat those findings.
Likelihood of Recurrence
[87] Based on the history to date, I find it is more than fair to conclude that the nuisances and trespasses are certain to continue. The property has been visited by Police over one hundred and nineteen separate times and the acts complained of have been continuing for a period of over five years. After attempts at intervention, the circumstances inevitably revert to the pre-intervention circumstances.
Adequate Alternate Remedy
[88] I find that there is no adequate alternate remedy excluding granting of permanent injunction in the circumstances.
[89] The issues have been ongoing for some time and are still continuing. It is unlikely an award of damages alone will be sufficient to govern the conduct of the Defendant and the Defendant’s guests based on the facts that Police presence seems to have provided very little motivation to the defendant to take steps to address the problems/issues.
[90] A prohibitory injunction will assist the Plaintiffs with future enforcement efforts when the need inevitably arises.
Terms which Should be Imposed on the Plaintiffs
[91] There is no question in my mind that the Plaintiffs come to Court with clean hands and have exercised an extraordinary amount of self-restraint in the face of egregious interferences with both their property rights and sense of personal safety over the last five years. They have turned to every regulatory body with jurisdiction in an effort to resolve the issues.
[92] There are no conditions in these circumstances that justify imposing conditions on the Plaintiffs as a condition of granting the injunction.
Scope of the Injunction
[93] Robert J. Sharpe, in Injunctions and Specific Performance, loose-leaf, (Toronto: Canada Law Book, 2023), at 4-21, wrote:
Injunctions may be limited to restraining certain levels of activity or certain types of interference. While in earlier cases orders were framed very generally, simply prohibiting the defendant from behaving so as to cause a nuisance to the plaintiff, it is becoming more common for the order to provide specific guidance and to avoid language which effectively amounts to outright prohibition of the activity complained of. In most cases, the problem is not seen as one of eliminating interference but rather limiting it to a more tolerable level.
A good example is provided by the decision of the English Court of Appeal in Kennaway v. Thompson. While insisting on injunctive relief rather than damages, the court made a complex and detailed order which did not prevent the defendants from conducting their speedboat races but limited the type and frequency of such events. In some cases, the court may ask the parties themselves to negotiate the terms of a specifically tailored order once a finding of liability has been made. Between the extremes of finding no wrong at all and awarding an injunction which would completely stop whatever it is the defendant is doing, there is a wide range. In an area where the substantive definition of rights is so flexible and relative, it would be unfortunate to impose black and white remedial choice and the courts have properly exploited the flexibility of partial or qualified injunctions.
It is submitted that where the situation has crystallized and the court has sufficient information at the trial, the practice of issuing relatively specific orders of this type offers distinct advantages. They allow the court to adopt a more refined and precise approach to the balancing of competing property interests. They assist the defendant by defining precisely what can be done and avoid causing unnecessary caution, which may often be prompted by a vague order in general terms. In addition, specific orders avoid postponing the decision as to important details to the more awkward procedural form of a contempt application.
Relief Requested in Draft Proposed Judgment Filed
[94] The real question in this case is whether the specific conditions that the Plaintiffs have requested in their draft injunction order are appropriate. I fully appreciate that the Plaintiffs seek to restrict the very disturbing conduct of the Defendant and the Defendant’s guests, and their respective animals, from continuing to trespass on the Plaintiff Property or otherwise cause nuisances or engage in any other tortious conduct.
Draft Order 6. (a)
[95] This term is too broad. I appreciate that blanket injunctions have been granted in some authorities and as against unknown persons as submitted by the Plaintiffs. I take no issue with same being applicable to unknown persons on the facts of this case to provide the Plaintiffs with the relief that is needed. Various people and tenants have come and gone with respect to the Defendant’s property.
[96] I do not agree however with the Plaintiffs that it is not “cost-effective” or that same should be a factor based on the array of nuisance related activities to prohibit same broadly. The activities they complain of can be addressed with specific injunctions. Their predominant claim is related to noise (various), trespass (animals and humans), safety (threats/confrontations/discharge of firearms) and debris, for lack of a better phrase, “have been consistently the same over the last five plus years”.
Draft Order 6. (b)
[97] A city by-law exists regarding noise, and in my view, this term should be refined to fit same. Clearly restriction as to noise is needed as set out on the facts of this case. On page 4 of the by-law, there is a list of various noises that have time restrictions. Point 11 deals with “yelling, shouting, hooting, whistling or singing”, and such noises are restricted in residential areas from 11:00 p.m. to 7:00 a.m. (Monday-Saturday), and 11:00 p.m. to 9:00 a.m. (Sundays). I drew this to the attention of the Plaintiffs. They agreed ultimately that restriction be in accordance with the by-law and that it was appropriate.
Draft Order 6. (c)
[98] I have no difficulty with this request with respect to trespass. This injunction will prohibit and restrain the defendant and his guests (or his guests’ guests) from trespassing on the Plaintiff property. It is clearly needed based on the facts of this case.
Draft Order 6. (d), (e) and (f)
[99] It is noted that in point 9 of the city noise by-law, same addresses “persistent barking, calling or whining or other similar persistent noise making by any domestic pet, or any other animal kept or used for any purpose other than agriculture”, which, in residential areas, is not allowed at all times. The time of day of the noise varies and includes all hours of the day. One of the Plaintiffs works night shift and is unable to sleep during the day because of the animal noise. Although the Plaintiffs didn’t request this in the draft as a condition, they have set out a complaint with the noise level emanating from that property. It was also learned by me that there is no fence fully encompassing the back yard of the Defendant’s property. There is a border fence between the properties only. Given the number of instances of trespass (people and animals) in my view, the addition of a fully fenced in back yard could help with some of the nuisances complained of and it would not be, based on the number of times and continuous nature of the nuisances to order that same be erected.
Draft Order 6. (g)
[100] In my view, (g), a restriction regarding possessing firearms, goes beyond what is permissible – this is within the purview of the Criminal Code of Canada and for the police to enforce. The Plaintiffs agreed when addressed with them, that same is outside civil realm injunctive relief. The city noise by-law, point 2, also provides that there not be noise from the discharge of firearms in residential areas, at all times. It is within, in my view, however, to restrain discharging of firearms on the property, on the specific facts of this case. The Plaintiffs agree.
Draft Order 6. (h)
[101] In my view, (h), a restriction regarding illegal drugs and nonprescription drugs, goes beyond what is permissible – this is within the purview of the Criminal Code of Canada and for the police to enforce. The Plaintiffs agreed when addressed with them that same is outside civil realm injunctive relief. However, there certainly is a case for restraint being ordered with respect to the creating and emanating strong and intrusive odours causing a nuisance related to drugs or otherwise. This is made out on the trial record and including a restriction regarding same would be appropriate. The Plaintiffs agree that the relief be amended to deal with same, leaving the police to address enforcement of illegal drugs at the residence. I have similar thoughts on debris and that compliance can be ordered as directed by the City.
Draft Order 6. (i) and (j)
[102] In my view, (i) is a bit broad but I have no doubt that the Plaintiffs are fearful of the defendant and there have been prior confrontations, and actions including discharge of firearms that support this relief on the facts of this case. It is supported in my view, accordingly, to restrain the defendant and all occupants from threatening, harassing, annoying and/or assaulting the Plaintiffs – to make an order to that effect. The Plaintiffs have been followed and threatened related to bringing these proceedings as well per counsel.
Draft Order 6. (j)
[103] In my view, (j) reflects a combination of 6. (c) and (i) considerations and is not necessary.
Draft Order 7
[104] This proposal encompasses much more than the acts complained of and are an issue/jurisdiction for the Corporation of the City of Sault Ste. Marie who is not a party to this proceeding. However, as set out above, some of the relief ought to be ordered that fits the facts of the case, especially property standards.
Issue Five: Costs
[105] The Plaintiffs requested the opportunity to make cost submissions in writing within 30 days following the hearing of the uncontested trial.
[106] Bills of costs/costs outline were filed April 10, 2024.
[107] The Plaintiffs seek substantial costs over $75,000.
[108] The Plaintiffs are the successful party.
[109] The issues were important. Their use and enjoyment of their property were being significantly interfered with that was not ending. There was also an element of public interest.
[110] Most of the issues were not particularly complex but required the gathering of evidence and presenting same. Damages and relief were a complex issue as this case factually presented as an unprecedented case.
[111] I take no issue with the years of call of the counsel involved and the hourly rates charged that are commensurate with years of call and acceptable rates in Northern Ontario.
[112] Significant materials were required to be prepared for trial and the calling of viva voce evidence. Substituted service had to be pursued. Motions were required to obtain third party records had to be pursued. The defendant did not participate until his request to do so at the trial. His lack of participation increased the costs to process the claims.
[113] The plaintiffs prepared an offer to settle that the defendant’s parents were willing at one point to accept that ultimately did not come to fruition. First, this delayed the proceeding and second, the offer is more favourable to the defendant than the ultimate judgment of this court. It was a monetary offer. In this case, monetary damages have been awarded as well as permanent injunctive relief.
[114] The amount claimed in my respectful view, even with the foregoing considerations, is too high, multiple counsel provided services, some of which presents as overlap and related to experience. I am not satisfied that the nature of this matter required four counsel or the time spent. It is too much in my respectful view.
[115] Further, the costs outline includes steps that were related to cost issues reviewed by the court for which orders were already made. April 19, 2023, an order for costs of $750 was made and on October 27, 2022, an order for $3,000.
[116] I take no issue with the Plaintiffs’ claimed disbursements. They are appropriate given the steps taken in this case and the materials required to be filed to meet their evidentiary burdens.
[117] Having said all of the above, I do find that this is a case to order an award for costs and I that I exercise my discretion to do so. I also find that this is a case where party and party costs is insufficient, given the lack of cooperation by the defendant. The Plaintiffs had to seek records, prepare several affidavits for the hearing, and call several witnesses.
[118] Having considered all of the above, I find that a reasonable amount an unsuccessful party would expect to pay on a claim of this nature and the steps that were required to be taken to be $50,000.00 inclusive of fees, disbursements and taxes.
Other
[119] It is important, in my view, given the terms of the Order that I will be making that all be provided with notice. As such, I will be including terms to address same.
[120] I find it is equally important to direct enforcement of this Order, given the continuous and long-standing nuisance and trespasses in this case, recognizing the discretion and powers of those authorized to enforce the Orders and terms will be included to address same.
[121] I find it is also important that the injunctive relief ordered not apply to persons acting in the course of or in the exercise of a statutory duty, power, or authority and a term will be included to address same.
JUDGMENT/ORDER
[122] The Plaintiffs respectfully request that judgment be granted in accordance with the form and content of the draft order submitted to this Court. I have reviewed that judgment. I have not signed it for reasons stated herein.
[123] For all reasons set out above, a final judgment shall issue providing:
that the court declares that the Defendant’s use of the property has constituted an ongoing nuisance to the Plaintiffs and trespass to their property municipally located at 39 Pentagon Boulevard, Sault Ste. Marie, Ontario.
that the Defendant, Marty Joseph Acciavatti, shall pay general damages on account of private nuisance, trespass, and mental distress to the Plaintiff, Nick Joseph Delavalle, in the sum of $180,000, $20,000, and $10,000 respectively for a total of $210,000.
that the Defendant, Marty Joseph Acciavatti, shall pay general damages on account of private nuisance, trespass, and mental distress to the Plaintiff, Christine Ropeter, in the sum of $180,000, $20,000, and $10,000 respectively for a total of $210,000.
that the Defendant, Marty Joseph Acciavatti, shall pay to the Plaintiffs, Nick Joseph Delavalle and Christine Ropeter, punitive damages each in the sum of $50,000 for a total of $100,000.
that the Defendant, Marty Joseph Acciavatti and all tenants, occupants, agents, guests, invitees, and other persons present at any time at or upon 29 Pentagon Boulevard, Sault Ste. Marie, Ontario, are hereby permanently prohibited and restrained:
a. from interfering with the Plaintiff’s use or enjoyment of their property located at 39 Pentagon Boulevard, Sault Ste. Marie, Ontario at any time;
b. from creating and emanating noise during the hours of 11:00 p.m. to 7:00 a.m. (Monday-Saturday), and 11:00 p.m. to 9:00 a.m. (Sundays);
c. from entering upon, passing through, or attending upon the property municipally located at 39 Pentagon Boulevard, Sault Ste. Marie, Ontario or permitting any person from entering upon, passing through, or attending upon the property municipally located at 39 Pentagon Boulevard, Sault Ste. Marie, Ontario at any time;
d. from permitting any animal housed and/or brought to 29 Pentagon Boulevard, Sault Ste. Marie, Ontario to enter upon or pass through the property municipally located at 39 Pentagon Boulevard, Sault Ste. Marie, Ontario at any time;
e. from permitting any animal housed and/or brought to 29 Pentagon Boulevard, Sault Ste. Marie, Ontario to be unleashed at any time upon the property 29 Pentagon Boulevard, Sault Ste. Marie, Ontario, and the surrounding areas, except when secured and controlled inside the premises or a fully enclosed area outdoors located thereon;
f. from permitting persistent barking, calling, or whining or other similar persistent noise making, at any time, by any animal, housed and/or brought to 29 Pentagon Boulevard, Sault Ste. Marie, Ontario;
g. from discharging firearms at 29 Pentagon Boulevard, Sault Ste. Marie, Ontario at any time;
h. from creating and emanating strong and intrusive odours at 29 Pentagon Boulevard, Sault Ste. Marie, Ontario at any time;
i. from threatening, harassing, annoying, or assaulting the Plaintiffs, Nick Joseph Delavalle or Christine Ropeter, or any other person present upon the property municipally located at 39 Pentagon Boulevard, Sault Ste. Marie, Ontario at any time.
that the Defendant Marty Joseph Acciavatti, shall install and maintain a fence to fully enclose the back yard for all animals housed and/or brought to 29 Pentagon Boulevard, Sault Ste. Marie, Ontario, to assist in keeping them within the boundaries of this property.
that the Defendant Marty Joseph Acciavatti, shall remove all debris and maintain 29 Pentagon Boulevard, Sault Ste. Marie, Ontario as directed by the Corporation of the City of Sault Ste. Marie.
that the prohibition and restraint relief in this Order shall not apply to persons acting in the course of or in the exercise of a statutory duty, power or authority.
that this Order is directed to the Sheriff for the City of Sault Ste. Marie for enforcement.
that this Order authorizes the Sault Ste. Marie Police Services (“SSMPS”) to assist the Sheriff of the City of Sault Ste. Marie in the enforcement of this Order and arrest any person who has knowledge of this Order and who the SSMPS has reasonable and probable grounds to believe is contravening or has contravened any provision of this Order. The SSMPS shall retain discretion:
a. as to the timing and manner of enforcement of this Order, and specifically retain discretion as to the time and manner of arrest and removal of any person pursuant to this Order;
b. to detain and release any person without arrest who the SSMPS have reasonable and probable grounds to believe is contravening or has contravened any provision of this Order upon that person agreeing to abide by this Order; and
c. to lay any charges or take any other lawful actions.
that this Order may be registered on title to either or both of said real properties at the discretion of the Plaintiffs: Description of Plaintiffs' Real Property: LT 7 PL H457 ST. MARY'S; SAULT STE. MARIE being PIN 31526-0007 (LT) and Description of Defendant's Real Property: LT 6 PL H457 ST. MARY'S; SAULT STE. MARIE being PIN 31526-0006 (LT);
that the Plaintiffs shall personally serve the Defendant with a copy of this Order and file proof of service of same in this claim;
that the Defendant shall provide notice of this Order to all present and future tenants and known occupants of 29 Pentagon Boulevard, Sault Ste. Marie, Ontario;
that the Defendant shall instruct all present and future tenants to inform any and all guests attending the said property of the Order;
that the Defendant shall post a copy of the Order at 29 Pentagon Boulevard, Sault Ste. Marie, Ontario, in a spot that will be visible to all attending the property;
that the Defendant, Marty Joseph Acciavatti, shall pay costs to the Plaintiffs of this claim within 30 days of today’s date, in the sum of $50,000 inclusive of fees, disbursements and taxes;
that if the provisions of this Order are insufficient to bring the Defendant into compliance with the spirit and intent of this Order, the Plaintiffs are hereby granted leave to seek further directions of the Court by way of motion served upon the Defendant;
that unless as otherwise set out herein, the claim shall be considered completed.
Rasaiah J.
Released: September 18, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NICK JOSEPH DELAVALLE AND CHRISTINE ROPETER
- and –
MARTY JOSEPH ACCIAVATTI
REASONS FOR JUDGMENT
Rasaiah J.
Released: September 18, 2024