Ontario Civil


Noise and odour not tangible objects in context of law respecting trespass

Appellant owned quarry. Respondents were residents who lived in vicinity of quarry. Residents brought action complaining of noise and odour alleged to be caused by production of asphalt. Judgment was granted in favour of respondents totaling $14,700 as damages for nuisance, trespass and negligence. Appeal was dismissed in relation to nuisance claim and allowed in relation to claims in trespass and negligence. Judge did not misapprehend character of neighbourhood. Trial judge did not make palpable and overriding error in assessing severity of interference. Trial judge did not make reviewable error in not finding that respondents were predisposed to be hypersensitive to noise and odour emanating from asphalt plant. There was no reviewable error in assessment of utility of appellant’s conduct. Trial judge did not make reviewable error in permitting individual to provide opinion evidence. Finding of liability in trespass was set aside. Nature of intrusion was indirect because noise and odours were emitted from plant rather than being placed on neighbouring land by appellant. Noise and odour were not tangible objects in context of law respecting trespass. Finding of liability in negligence was set aside. There was no suggestion in evidence that respondents suffered personal injuries or property damage to extent that justified compensation under law of negligence. Appeal as it related to damages was dismissed. No adjustments were made to amounts awarded by trial judge.

Moore v. Smith Construction Co. (Jan. 21, 2013, Ont. S.C.J., Martin James J., File No. DC-10-0102) 231 A.C.W.S. (3d) 836.

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