340909 Ontario Ltd. v. Huron Steel Products (Windsor)

Inc. and Huron Steel Products *

[Indexed as: 340909 Ontario Ltd. v. Huron Steel

Products (Windsor) Inc.]

10 O.R. (3d) 95

[1992] O.J. No. 1694

Action No. C 10611

 Court of Appeal for Ontario,

Tarnopolsky, Finlayson and Arbour JJ.A.

August 19, 1992

* This case was originally noted at 9 O.R. (3d) 305n and is herewith published in full.

Damages -- Nuisance -- Damages in nuisance action awarded for loss of rental income and for diminution of market value of plaintiff's apartment building caused by operation of defendants' factory -- Damage award affirmed on appeal.

The plaintiff's action in nuisance against the defendants was allowed. The trial judge held that the operation of the defendants' factory constituted a nuisance in law and unreasonably interfered with the plaintiff's use and enjoyment of its property. Damages were awarded for loss of rental income as a result of the nuisance and for diminution of the market value of the plaintiff's apartment building. The defendants appealed the damage award on the ground that there was no admissible evidence to support it.

Held, the appeal should be dismissed.

All of the evidence on the record was admissible, albeit some of it for limited purposes, and there were no errors in the trial judge's conclusions.

APPEAL from award of damages in nuisance action.

Raymond G. Colautti, for appellants.

David S. Wilson and Robert A.J. Muir, for respondent.

THE COURT (orally):--It was conceded in argument that we should not disturb the finding of the trial judge that the operation of the respondents' factory constituted a nuisance in law. Further, there was no issue taken with the finding that the operations complained of "have caused and continue to cause an unreasonable interference with the plaintiff's use and enjoyment of its property". The submissions in argument by counsel for the appellants were restricted to the contention that there was no evidence, or at least no admissible evidence, to support the damage award. More specifically, it was submitted that the nuisance could not be causally related to the increased vacancy rate suffered by the respondent's apartment building and accordingly the trial judge was not justified in making an award for loss of rental income for the period 1980 to 1988 and, additionally, an award for diminution of the market value of the building.

In our opinion, all of the evidence on the record was admissible, albeit some of it for limited purposes. We agree that the evidence of the tenant survey and individual letters of complaint could not be used for the truth of their contents, but there is nothing in the very full reasons of the trial judge that indicates that he treated them as anything more than evidence that there were complaints from some tenants with respect to the noise and vibration from the factory. They were not used as a basis for a finding that there was a nuisance or that specific tenants had vacated the premises because of these conditions.

There was ample evidence to support the trial judge's findings that some responsibility for the lower than average occupancy rate at the apartment building was attributable to the nuisance which had been independently established in evidence. The trial judge's quantification of these damages is supported by expert testimony. We also find no merit in the submission that there was an element of double recovery in assessing an amount for lost income for the period 1980 to 1988 and a further figure to compensate for the loss in market value of the property as of the date of trial.

Accordingly, the appeal is dismissed with costs. The cross-appeal is dismissed as abandoned.

Appeal dismissed.