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NUISANCE - Private nuisance - Factors giving rise to right of action

Friday, December 11, 2020 @ 6:54 AM  


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Appeal by the defendants Garber and Nealon from trial judgment finding a dock constructed by Nealon at the request of Garber constituted a nuisance, granting a mandatory injunction and awarding the respondent punitive damages. The appellants also sought leave to appeal the costs award. Nealon failed to situate the dock in conformity with the permit obtained. The dock curtailed the respondent Krieser’s use of their neighbouring waterfront and boat. The dock sat squarely in front of the Krieser waterfront and amounted to a physical invasion of their property. The Kriesers, as recreational boaters, could no longer dock their vessel at their own property because of the location of the Garber dock. Garber rejected Krieser’s offer to pay for all the costs of moving the dock and protective boulders. Nealon was convicted of a criminal offence for ignoring the approved plans and building the dock in the wrong place. Krieser then sued Nealon and Garber. The trial judge ordered that Garber and Nealon, jointly and severally, at their expense, remove the dock from its present location. He ordered that Nealon and Garber pay Krieser punitive damages of $100,000 and awarded substantial indemnity costs of $518,000, jointly and severally, against Garber and Nealon, and a further $80,000 in costs solely against Garber.

HELD: Appeal by Nealon allowed in part. The punitive damages order against Nealon was set aside. The costs award against Nealon was reduced to $108,000 to reflect partial indemnity costs. The trial judge did not err in finding that the dock constituted a nuisance. The construction of the dock resulted in a substantial and unreasonable interference with Krieser’s use and enjoyment of her property. The trial judge properly focused on the fact that Krieser’s use of their boat was impeded by the dock and the boulders which were installed as part of the dock directly in front of Krieser’s marine rails. The trial judge did not err in his reasonableness analysis by failing to balance the harm to Krieser against the increased utility of the dock to Garber as built. There was no reason why Krieser should bear the cost of this dock for Garber’s benefit. There was no reason to interfere with the trial judge’s exercise of his discretion in granting the injunction requiring the removal of the entire dock. It was not unduly burdensome to require removal of the dock. In awarding punitive damages, the trial judge erred in treating Garber and Nealon as one, without assessing whether punitive damages were required against them separately. Nealon’s misconduct was not so outrageous that punitive damages were rationally required to punish, deter or denounce it. The trial judge failed to consider that Nealon’s position was fundamentally different from Garber’s. The protracted nature of the interference and the failure to accept the Krieser offer were the most significant factors in the trial judge’s decision to order punitive damages against Garber and Nealon. These factors, however, properly related only to Garber. The court did not interfere with the trial judge’s award of punitive damages against Garber. The trial judge did not err by ignoring an indemnity agreement and a tolling agreement when awarding punitive damages. Punitive damages were required to punish and denounce Garber’s conduct and deter similar conduct. The trial judge engaged in careful consideration of proportionality to determine the lowest award to rationally serve the objectives of punitive damages. Substantial indemnity costs against Nealon were not warranted. Nealon was entitled to defend the nuisance claim. His lack of success at trial did not make his conduct reprehensible, scandalous or outrageous. The Krieser offer was not made to Nealon and he could not accept it. Nor could he relocate the dock without Garber’s approval.

Krieser v. Garber, [2020] O.J. No. 4850, Ontario Court of Appeal, D.H. Doherty, A. Hoy and M. Jamal JJ.A., November 5, 2020. Digest No. TLD-December72020009