The facts underlying a recent ruling, TMS Lighting Ltd. v. KJS Transport Inc.,
2014 ONCA 1, read like a law school exam question —
i.e., when the business carried on by a manufacturer of
delicate lighting fixtures is disrupted by air-borne dust caused by
the activities of its neighbour, a trucking company, is the
lighting company permitted to sue in either nuisance or trespass?
Is the lighting company's particular sensitivity to dust
relevant in assessing whether or not there has been
"unreasonable interference" with its use of its lands?
What is the proper scope of damages recoverable by the lighting
manufacturer, and does it include damages for lost
The trial judge ruled that actionable nuisance had
been committed and awarded generous damages to reflect, inter
alia, the plaintiff's lost productivity. The Court of
Appeal affirmed, but varied, this ruling.
More specifically, the Court of Appeal confirmed that the
trucking company's use of its unpaved parking lot resulted in
the creation of dust which entered the lighting company's
premises and interfered with its manufacturing activities. In the
circumstances, the entry of the dust satisfied the test for
nuisance, as it constituted "an interference with a
plaintiff's use or enjoyment of land that is both substantial
and unreasonable." An assessment of "unreasonable"
conduct is always highly contextual. As noted by the Court:
While the courts are not limited by any specific list of factors
in assessing the gravity of the harm occasioned by the defendant,
such factors as the severity of the interference, the character of
the neighbourhood, the sensitivity of the plaintiff to the harm
caused, and the frequency and duration of the interference may be
relevant under the reasonableness inquiry.
The trucking company argued that the unique sensitivity to dust
of the plaintiff's manufacturing operations should not properly
have been considered by the trial judge. The Court of Appeal
disagreed, and approving quoted the trial judge's treatment of
[W]hile TMS's manufacturing process was sensitive to dust,
its sensitivity was not unique in the area. Its use of its property
was consistent with the use that its neighbours made of their
properties, including retail warehouses, small manufacturing
concerns, and professional offices. TMS's sensitivity to dust
is not what made KJS's failure to pave its [parking] lot for
four years unreasonable, although it contributed to the extent of
damages TMS suffered because of it.
The second issue related to the scope of damages available to
the plaintiff. The lighting company had argued successfully in the
court below that its workers had been forced to spend a
considerable amount of their time addressing and remediating the
problems caused by the dust entering the premises, and that the
resulting lost productivity was compensable in damages.
The Court of Appeal confirmed that such losses had been
suffered, and could be recovered. However, the Court rejected the
trial judge's decision to develop and apply his own methodology
for calculating these losses:
[I]n my opinion, it is not open to a trial judge to postulate a
method for the quantification of damages that is not supported by
the evidence at trial. Nor is it open to a trial judge to employ an
approach to the quantification of damages that the parties did not
advance and had no opportunity to test or challenge at trial.
In light of these concerns, and given the requirement for expert
evidence needed to calculate such damages, the Court ordered a new
trial limited to the assessment of damages.
A recent decision of the Ontario Court
of Appeal, D'Onofrio v. Advantage
Car & Truck Rentals Ltd., 2017 ONCA 5,
asks whether a party who takes "no
position" on a summary judgment
motion is later bound by the motion
judge's findings in the ongoing
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