Dust generated by trucks driving on an unpaved parking lot can
be a nuisance to industrial neighbours, according to the
Ontario Court of Appeal.
Lighting Ltd. v. KJS Transport Inc., 2014 CarswellOnt 2, the
court ruled that the dust unreasonably interfered with a
neighbouring business's use and enjoyment of its property. For
approximately five years, airborne dust generated by the trucking
operations persistently disrupted the neighbours'
lighting manufacturing business. The court ordered a new
trial on the issue of damages.
The plaintiff, a manufacturer of lighting fixtures,
had sued a neighbouring trucking business in a Brampton industrial
park because of the persistent parking lot dust. The trial
judge had applied the test laid out by the Ontario Court of Appeal
in Smith v. Inco, which drew a distinction between nuisance based
on physical injury to land and nuisance based on "substantial
interference with the plaintiff's use or enjoyment of
The Court of Appeal did not refer to the Inco decision, but
instead focused on the test for private nuisance laid out by the
Supreme Court of Canada in Antrim Truck Centre Ltd. v. Ontario
(Minister of Transportation). Antrimestablished that a
"reasonableness" analysis is necessary regardless whether
the nuisance complained of is based on physical interference with
land, or interference with the use or enjoyment of land.
Nevertheless, in applying the Antrim test, the Court of Appeal
found that there was no palpable or overriding error in the trial
judge's reasonableness analysis, and upheld that part of the
decision. On the issue of damages, however, the Court of Appeal
ordered a new trial, as the plaintiff had failed to produce
adequate evidence of its lost-productivity damages, but the trial
judge should not have employed his own methodology that the parties
did not advance and had no opportunity to challenge.
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