Court File and Parties
Court File No.: CV-24-00002428-0000 Date: 2026-03-06
Superior Court of Justice -- Ontario
Re: KAMINSKYJ, Martin, applicant GOMEZ, Patricia, applicant
And: SHIMANO, Michael, respondent
Before: Justice Mandhane
Counsel: PERRY, Ian J., for the applicants MCGOOGAN, Carlin, for the respondent
Heard: March 4, 2026, by video conference
Endorsement
Introduction
1The applicants and respondent are next-door neighbours at 3177 and 3183 Constitution Boulevard, Mississauga, respectively. Their neighbourhood is zoned residential, and features detached homes with medium-sized lots, generous setbacks, tidy front lawns, generous side yards, and a verge between the sidewalk and street. The neighbourhood is part of a busy, urban centre, where dealing with neighbours in close proximity is an everyday fact.
2The applicants are a married couple with a child and dog who moved into 3177 Constitution in 2022. The applicants say that the constant smoke billowing out of the respondent's chimney is toxic, smelly, and has exacerbated their underlying health conditions and created new ones. They say that the respondent blasts his music at all hours of the day such that they cannot sleep. Since launching this lawsuit in 2024, they say that the respondent has increased his noxious activities as a form of retaliation for their complaints to the city, fire department, police, and the criminal courts.
3The applicants say that the respondent's activities are a nuisance and ask me to order that the respondent be enjoined using his woodstove or burning anything, storing wood on his property, or emitting any sounds except in strict compliance with noise by laws. They ask for punitive damages of $10,000.
4The applicants rely on their own affidavits, along with affidavits from a family member and a neighbour from across the street, Jacob Park. Mr. Kaminskyj and Mr. Park were both cross-examined. The applicants also rely on a letter that they received from the respondent after commencing this litigation. The applicants say the letter is an admission whereas the respondent says it is protected by settlement privilege and should not form part of the record.
5The respondent asks me to dismiss the application, which he says is motivated by the applicants' animus towards him. He says that he is a single man who has lived in his property his entire life, minding his own business. He says that his use of his property is entirely normal and hardly a nuisance. He admits to burning hardwood in a woodstove in his basement year-round for pleasure, and playing music while working outside, but denies releasing toxic fumes, noise bombing, harming anyone's health, or breaching any relevant laws or standard of care. He notes that the applicants' complaints to various officials and bodies have gone nowhere. If I find any liability, the respondent says that I should award nominal damages because the injunction being proposed is inconsistent with the everyday and entirely normal use of his home. He relies on his own affidavit, upon which he was cross-examined.
6The issues I must decide are as follows:
a. Is the respondent's letter protected by settlement privilege?
b. Is the respondent's use of his woodstove a nuisance?
c. Is the respondent's use of outdoor speakers a nuisance?
d. If so, is this an appropriate case to grant an injunction or would damages suffice?
e. What costs should be ordered?
7Based on my answers to these questions, I would dismiss the application.
A. Is the respondent's letter protected by settlement privilege?
8I deal first with the admissibility of the respondent's undated letter, which was sent to the applicants' counsel sometime after this litigation was commenced on May 29, 2024.1 The parties agree that the respondent was self-represented at this time.
9The letter contains two sections. The first is entitled, "Response to the Applicant Record" and includes handwritten pages numbered 1 to 5. The respondent concedes that no privilege attaches to the first section of the letter and that it is admissible. In it, the respondent denies most of the applicants' allegations, denies ever burning toxic materials but admits that he might have burned pressure treated wood once because the applicants gave it to him.
10The second section is entitled "The 'Olive Branch'" and includes handwritten pages lettered A through C. This section starts with a preamble stating that it is an "offer, as a start to open up dialogue/discussions to resolve the matter at hand," before listing proposed terms. This section includes a subsection titled, "Why the 'Olive Branch' offering" which is a narrative justification for the proposed settlement outlined on the previous pages. The applicants seek to rely on the narrative justification for the truth of its contents because they say that it was never marked "without prejudice," and is an admission against interest.
11The respondent says that the "Olive Branch" letter is protected by settlement privilege. I agree. Despite not using the legal term "without prejudice," the respondent's use of the term "olive branch" and "offer" make it abundantly clear that what followed was a proposal to settle the matter out of court. Any admissions contained in this section of the letter were clearly intended to further settlement and are therefore inadmissible: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623 at para. 14.
B. Is the respondent's use of his woodstove a nuisance?
12To be successful in a claim of nuisance, the applicants must establish on a balance of probabilities: (1) that they have experienced a substantial interference with their use and enjoyment of land; and (2) that the substantial interference was unreasonable: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R., at para. 19.
13I turn first to resolving the key factual issues in dispute: the nature and extent of the smoke being emitted from the respondent's woodstove, and whether the smoke has contributed to the applicants' health issues. To do so, I must assess the credibility of the parties.
14Overall, I prefer the evidence of the respondent to that of the applicants. The respondent's evidence is simple and straightforward, has been consistent over time, and is balanced. He admits to burning hardwood in a wood stove for pleasure year-round. He admits to sometimes playing his music while working outside during the day and evening hours. He admits to valuing his privacy and independence. He admits to rising tensions with the applicants.
15In contrast, the applicants' positions have evolved over time and have become increasingly hyperbolic. For example, the applicants' complaint about toxic fumes was only made after their complaint about wood smoke was dismissed by the fire department. When the applicants' complaint about toxic smoke was investigated and dismissed by the fire department and the police, they changed their position once again to focus solely on the nature and extent of the smoke and not its toxic character.
16This happened again in relation to the complaint about loud music. It started as a complaint about playing loud music during the afternoon and evening hours which evolved into a complaint about playing racist music to harass Mr. Park, before again evolving into a complaint about noise bombing as retaliation for the applicants' complaints to authorities.
17The evolving nature of the applicants' claims is especially problematic because there is no cogent evidence to support them. It is uncontroversial that the applicants' numerous complaints to various authorities about smoke, smell and noise have never resulted in any enforcement or injunctive action. Despite the alleged toxicity of the smoke, there is a curious absence of expert evidence from doctors, toxicologists, environmental scientists, or even a chimney sweep or technician.
18At the same time, there is ample evidence of the applicants' animus towards the respondent for using his woodstove and playing his music. Police records show that the applicants videotaped him surreptitiously and then were caught taunting and threatening the respondent with violence. When the applicants tried to lay a private information against the respondent in criminal court for harassment, the Crown immediately withdrew it because it was an abuse of process.
19While the applicants say that their evidence is corroborated by their neighbour, Mr. Park has become aligned with the applicants such that his evidence is not sufficiently independent and cannot be afforded much weight. For example, Mr. Park admits that he and the applicants "often discuss the troublesome and escalating behaviour of Mr. Shimano," and notes that he has come to "sympathize" with the applicants. Mr. Kaminskyj also included, as an exhibit to his affidavit, an entirely self-serving email from Mr. Park that was clearly written to create a record for court. Mr. Park's only complaint to the authorities was about noise, and predates the applicants moving into the neighbourhood. Indeed, given the nature of the harms being alleged, I would have expected to see a coalition of neighbours opposing the respondent's behaviour, not just the appellants and Mr. Park.
20Considering the problems with the applicants' credibility, I cannot conclude on a balance of probabilities that the respondent has been emitting toxic smoke into the air, that the smoke is harming anyone, or that the smoke is being emitted to the extent claimed by the applicants.
21Even if I accepted that the applicants and Mr. Park smelled "burning plastic" or "rubber," that tells me nothing about the source or whether the respondent was indeed burning something toxic. Again, when the fire department inspected the respondent's woodstove, fuel, and fuel storage, they did not find anything wrong. The fact that the respondent admits to burning pressure treated wood once says nothing. This is easily attributable to an innocent mistake -- the applicants admit to giving the respondent the pressure treated wood that he later admitted to burning.
22The applicants have also not proven that the smoke being emitted by the respondent has caused or contributed to any of their medical problems. There is no medical opinion before me to that effect, nor any medical records. The fact that Ms. Gomez and their daughter have been prescribed puffers does not tell me much about the cause, nature, or prognosis of their health issues. In terms of actual harm, there is scant evidence beyond Ms. Gomez's own testimony about discomfort, coughing and shortness of breath.
23Finally, the applicants have not proven on a balance of probabilities that the respondent's chimney is constantly billowing dark smoke, regardless of what he may be burning. It is uncontroversial that the respondent uses a standard woodstove that is installed in his basement, and which provides both heat and enjoyment. It is also agreed that the stove vents via a chimney and complies with the relevant by-laws. While the applicants have provided photos and videos of the smoke taken in or around April, May and June 2024, with a few showing dark smoke coming out of the chimney, it is hard for me to interpret them absent expert evidence. Moreover, the photos and video capture moments in time, and show levels of smoke that may or may not be consistent with a normal fire.
24Overall, the applicants' claim for nuisance must fail. At its highest, the evidence establishes that the respondent uses his woodstove frequently to burn wood, which results in wood smoke being emitted from his rooftop chimney and dispersed into the surrounding air.
25The evidence does not support a finding that the respondent's use of his woodstove has caused a substantial interference with the applicants' use and enjoyment of their property. The fact that the applicants' can smell wood smoke, are bothered by it, and as a result must close their windows, or sometimes take meals inside does not rise to the threshold of establishing "substantial interference." On occasion, people who live in a busy neighbourhood will have to close their windows or stay inside because a neighbour decides to use their wood stove. While this may lead to annoyance and may even warrant a neighbourly conversation to resolve tensions, it is not substantial interference in the enjoyment of property and certainly does not warrant court intervention: St. Lawrence Cement v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 77. Indeed, nuisance involves a tolerance factor because we must all be able to withstand the inherent annoyances associated with living with other people in society: Stadnyk v. Thunder Bay (City), 2023 ONSC 3920, at para. 47.
26If I am wrong on the first branch of the test for nuisance, I also find that the respondent's use of his woodstove was reasonable. Using a woodstove is a common feature of Ontario life and the smoke emitted from normal use does not ground a claim in nuisance.
C. Is the respondent's use of outdoor speakers a nuisance?
27Again, I first turn to the alleged facts grounding this aspect of the claim. The applicants allege that the respondent has engaged in noise bombing as a form of harassment and retaliation for the applicants' various complaints against him. The applicants testify that the first incident of noise bombing took place on October 22, 2023 -- after their second complaint to the fire department -- and involved the respondent playing loud music in the afternoon into the early evening hours such that their infant baby could not sleep.
28Since then, the applicants claim that the respondent has noised bombed them during the daytime or early evening hours once more in 2023, and twelve times in 2024. On April 13, 2024, the applicants allege that the respondent had a fire, was chopping wood and blasting music while the applicants were eating dinner as a family. On May 8, 2023, the applicants say that the respondent admitted to blasting his music in retaliation for their ongoing complaints about the smoke.
29The respondent says that he does not blast his music, but rather listens to music while working outside occasionally. He can only recall one occasion when the applicants asked him to turn down his music. He denies blasting music as retaliation. He notes that the applicants have never once filed a noise complaint to a by-law officer, and nor has anyone else either.
30In the absence of any objective, third party evidence corroborating the applicants' version of events, and considering their credibility problems, I prefer the respondent's version of events.
31Applying the law of nuisance, the respondent listening to music while working outside during daytime hours is nothing more than a mere inconvenience or annoyance and does not warrant court intervention. There is nothing unreasonable about the respondent's conduct.
32Given that the applicants' nuisance claim must fail, I need not consider whether this is an appropriate case for granting injunctive relief.
D. What costs should be ordered?
33I have a broad discretion when it comes to awarding costs: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1). I must consider the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, including but not limited to: offers to settle, the complexity and importance of the matter, the conduct of any party during the litigation, the principle of indemnity, and the amount that an unsuccessful party could reasonably be expected to pay.
34The respondent was successful and is entitled to costs. The parties both submitted bills of costs. The respondent asks for costs on a substantial indemnity scale in the amount of $25,021.48. The applicants' bill of costs on a substantial indemnity scale totaled $46,667.84.
35Both parties also made relevant offers to settle. The respondent beat his offer dated July 3, 2025 which was open until the hearing of the application. The applicants did not beat their offer dated February 17, 2026.
36As discussed, I find that this litigation was motivated by the applicants' animus towards the respondent for his reasonable use of his property. To this extent it was misguided and a waste of court resources. The applicants' attempt to increase the claim for punitive damages from $10,000 to $30,000 by way of order submissions at the hearing, bordered on sharp practice without any notice of an intention to amend pleadings.
37While I accept that the issues were important to the applicants, they lost sight of the big picture along the way.
38The applicants shall pay the respondent $25,000 in costs, all inclusive.
39I am not seized.
Mandhane J.
Released: March 6, 2026
Footnotes
- Both parties sought to rely on inadmissible evidence at the hearing. For example, I ruled that both parties' exhibits contained inadmissible hearsay; for example, correspondence from neighbours, and email from a postal worker. I also found that the applicants' opinions about the cause of their medical conditions was inadmissible because it did not come from a qualified expert.