Indexed as:
Pyke v. Tri Gro Enterprises Ltd.
Between
Craig Pyke et al., plaintiffs, and
Tri Gro Enterprises Ltd. et al., defendants
[1999] O.J. No. 5025
101 O.T.C. 241
93 A.C.W.S. (3d) 1010
Court File No. 69190/95
Ontario Superior Court of Justice
Ferguson J.
Heard: November 22-24, 1999.
Judgment: December 22, 1999.
(60 paras.)
Torts -- Nuisance -- Particular nuisances -- Odours -- Injury to property, neighbouring owners -- Injury to health and comfort -- Damages -- Torts affecting land and buildings -- Normal measure -- Nuisance.
Assessment of damages in a nuisance action by 16 neighbours of Tri Gro Enterprises, a mushroom grower. The neighbours, which included a numbered company, had shown that the nuisance, a bad odour, had persisted for five years. The neighbours claimed that damages should be increased to reflect the fact that the provincial government had statutorily removed their right to an injunction. They also argued that higher damages would encourage the cessation of such nuisances, rather than permitting the offender to pay what amounted to a license fee. The neighbours sought non-pecuniary general damages and damages for loss of property value.
HELD: Claim for loss of property value for the numbered company dismissed; non-pecuniary damages assessed in amounts from $7,500 to $35,000, depending on the effect on individual plaintiffs. In the absence of a sale or attempted sale of land, loss of property value was not compensable. While an analogy to personal injury cases was somewhat useful, it was not conclusive. Some of the significant distinguishing factors among the neighbours for the purposes of damages assessment were: the frequency and intensity of the odour; the amount of time that, and the time of day when, the neighbours were on their properties; how much the nuisance interfered with the neighbour's activities; and each neighbour's physical and psychological characteristics. None of them had an unforeseeable vulnerability. However, damages were not to be increased to compensate for the lack of an injunction remedy. The Court's jurisdiction was limited to assessing damages based on the extent of damage caused.
Counsel:
Donald R. Good, for the plaintiffs.
Raymond G. Colautti and Craig M. Houle, for the defendants.
FERGUSON J.:--
ISSUES ON THIS ASSESSMENT
1 I earlier heard the evidence on liability and have given my reasons for finding that certain of the defendants are liable in nuisance. I also concluded that because of a statutory bar the plaintiffs are entitled to claim only damages and not an injunction.
2 The plaintiffs do not contend this is a case for punitive or exemplary damages and claim only compensatory damages under two heads: non pecuniary general damages for the individual plaintiffs and loss of property value for all plaintiffs.
DAMAGES FOR LOSS OF PROPERTY VALUE
Who is entitled to damages under this head
3 The history of this trial is important in explaining how this claim was resolved.
4 From the outset both sides assumed that each plaintiff had a potential claim for loss of property value. The trial was bifurcated at the request of counsel principally so they could defer obtaining expert appraisal evidence based on the findings of the court. This evidence was obtained and both counsel prepared for the continuation of the trial anticipating that the evidence would be adduced and dealt with.
5 About three days before the continuation of the trial counsel for the defendants turned up authority for the proposition that damages for loss of property value cannot be awarded in a nuisance case unless the plaintiff can prove an actual sale or an aborted attempt to sell the property before the court assesses the damages: Butt v. City of Oshawa (1926), 59 O.L.R. 520 (Ont. C.A.); Godfrey v. Good Rich Refining Co. [1939] O.R. 106 (H. Ct.). The theory underlying this proposition is that the damage has not occurred unless one of these two facts exist and since nuisance is a continuing tort, it is not appropriate to assess damages until the tort causes the loss which might never happen if the plaintiffs never sell their land or attempt to sell it. Counsel for the plaintiffs did not learn of those authorities until the opening of the continued trial.
6 Until those cases were discovered it appeared that counsel for both sides assumed that the plaintiffs could recover damages for loss of property value even if they had not yet attempted to sell their property. Indeed there are a number of cases decided since Butt where damages were awarded in such circumstances. Eg. Nikolajevich v. Goreski [1984] O.J. No. 595; McLaughlin v. River Road Co-Op Ltd. [1988] N.B.J. No. 121 (N.B. Q.B.). It appears the courts in those cases were not informed of Butt or the cases it followed.
7 Having reviewed the defendants' authorities after the trial resumed, the plaintiffs' counsel conceded that only the corporate plaintiff and the Pykes could claim damages for loss of property of value. No claim under this head is being pursued by the Pykes.
8 He contended that the testimony of the appraisers could also be relevant to the issue of non pecuniary general damages for the individual plaintiffs but having heard it I conclude it is not relevant to that head of damages.
The claim of 1094581 Ontario Limited
9 This plaintiff adduced evidence of some actual sales of lots on its property and of unsuccessful attempts to sell other lots. The appraisers also addressed the issue of whether or not the nuisance affected the value of these lots.
10 As it might be relevant to the issue of costs, I should mention that in the course of his testimony the expert appraiser called by the defendants described how he had attended at properties nearby another mushroom farm and noticed a very offensive odour from its operations. This again is in apparent conflict with the testimony of the staff of the defendants who testified before me that there was virtually no such odour off the site of their own operations.
11 After the conclusion of the evidence and submissions of counsel I pointed out that it appeared to me that the corporate plaintiff could not pursue a claim on the theory that the value of its lands had diminished as a result of the nuisance because the evidence showed that the corporate plaintiff had purchased all its land in December 1994 which was after the nuisance had commenced. In other words, if there had been an adverse impact it occurred before the plaintiff purchased its land and in the absence of evidence to the contrary the court would have to assume the impact was reflected in the price the plaintiff paid and therefore conclude that the plaintiff suffered no loss.
12 Both counsel agreed with this analysis.
13 Counsel for the plaintiffs contended that I could still award nominal damages to the corporate plaintiff. I do not think there is any basis to do so.
14 In Butt, Riddell J.A. reviewed the authorities and pointed out that in the absence of a sale or attempted sale of the land affected, the only head of damages available is the injury to a human person. As he put it, if the land is vacant, no action would lie. (at p. 525) The only plaintiff in this action involved in the lands of the corporate plaintiff is the company itself and consequently there is no head of damages it can claim. It can prove no damage because a corporation cannot suffer personal harm from an odour.
15 The claim of the corporate plaintiff shall be dismissed.
DAMAGES FOR INJURY TO THE INDIVIDUAL PLAINTIFFS
As of what time the damages are assessed
16 At the conclusion of their submissions both sides agreed that I would assess the damages as of the date of the trial. I propose to assess them as of November 23, 1999 which was the last date on which I heard evidence that the nuisance was continuing.
17 There is authority for the proposition that the damages should be assessed as of the date of the commencement of the action: Bilson, The Canadian Law of Nuisance, Butterworths, (1991), at p. 129. I do not think this is correct. It has long been the custom in our courts to assess damages for personal injuries as of the date of the conclusion of the trial and the courts take into account all the evidence available up to that date.
18 On November 22 and 23, 1999 I heard uncontradicted testimony from several of the plaintiffs and I find that the nuisance has continued to that date causing roughly the same frequency and degree of harm to all the plaintiffs as I found in my earlier reasons.
What factors are relevant to the assessment of
non pecuniary general damages in nuisance
19 Nuisance is actionable because it is an unreasonable interference with the use and enjoyment of a plaintiff's land.
20 The caselaw indicates that in assessing damages the courts consider these factors: the frequency, degree and length of the interference; its effect on the health and comfort of the plaintiffs while on the land; the effect on the plaintiff's enjoyment of the land; the effect on the plaintiff's activities on the land.
21 The plaintiffs' counsel contended that two other factors should be considered.
22 He contended that the legislature had taken away the remedy of an injunction and that therefore the damages should be increased. He relied on Atwell et al. v. Knights [1967] 1 O.R. 419 (H. Ct.) where the judge appeared to conclude that damages were not appropriate where an injunction was warranted. The plaintiffs' counsel contended this decision implied that damages should be awarded in an increased amount if no injunction were granted.
23 He also referred me to Breau v. Soucy [1983] N.B.J. No. 69 (N.B. C.A.) where the court stated that nominal damages would be appropriate if an injunction were issued. Again, counsel argued that this implied that damages should be increased if no injunction were issued. Indeed, in that case the court found the trial judge was barred by statute from issuing an injunction against a pig farm and increased the damages from $1 to $2,000 for each plaintiff with this comment:
The trial judge awarded each plaintiff "nominal damages of $1". That would have undoubtedly sufficed if the injunction granted could have been upheld. In the circumstances, this order to pay a nominal sum is clearly insufficient and must be modified. (at para. 26)
24 I recognize that in deciding whether or not an act constitutes a nuisance the court must balance a variety of interests but I am doubtful that a plaintiff should be denied damages because an injunction is available. It seems to me that the purposes of damages and injunctions in nuisance cases are entirely different. Damages are intended to compensate for the past harm; an injunction is intended to prevent future harm.
25 As the defendants' counsel pointed out, the enactment of the "right to farm" legislation did not change the law as to how to assess damages. It only removed the court's power to issue an injunction. In my view the loss of the right to an injunction does not affect the assessment of damages which are only be assessed on the basis of the harm caused to the date of trial.
26 The second contention of the plaintiffs' counsel was that the non pecuniary damages should be increased to encourage the defendants to stop the nuisance by moving or ceasing their composting operations. He says the damages should not be a cheap licensing fee.
27 I do not accept this submission. The legislature has removed the court's power to stop the nuisance by issuing an injunction. In my view I have no jurisdiction except to assess damages based on the extent of the damage caused.
What approach should the court use to quantify the non
pecuniary general damages
Comparisons to previous nuisance cases
28 Both sides referred me to previous cases where courts assessed damage for nuisance resulting from odours.
29 I find these cases to be of limited assistance for several reasons.
30 First, many of them were from other provinces which historically have assessed lower amounts than Ontario courts in similar cases. For example, I was referred to Desrosiers et al. v. Sullivan (1985), 66 N.B.R. (2d) 243; appeal dismissed, (1986), 40 C.C.L.T. 66 (N.B. C.A.). In that case the nuisance was the odour from a pig farm. The complaints of the plaintiffs were very similar to those in the case before me. For damages over a period of 4 years the court assessed damages of $1,500 per plaintiff. In my view that amount would be totally inadequate in Ontario in 1999.
31 Second, many of them are outdated and the amounts do not reflect the Ontario court's current views of what is an appropriate amount of damages. The Desrosiers decision is an example. Another example, is Bone v. Seal [1975] 1 All E.R. 787 (Eng. C.A.) where the court dealt with a nuisance in the form of an odour from a pig farm. The trial judge found the odour was intolerable and had continued for 12 1/2 years. The Court of Appeal awarded each plaintiff 1,000 pounds. In my view such an award would be considered totally inadequate in Ontario to-day. That is clear when one considers that the trial judge awarded 6,000 pounds to each plaintiff and the Court of Appeal said that such a high amount "would only be given for a serious and permanent loss of amenity as the result of a very serious injury, perhaps in the case of a young person". A 6,000 pound assessment in a "very serious" personal injury case in 1999 in Ontario would clearly be too low.
32 I was referred to only two Ontario nuisance cases decided in the last 15 years.
33 In Nikolajevich v. Goreski, supra, the court assessed damages for nuisance resulting from the operation of a large marina over a period of about 8 years. The assessment is not helpful here because it included an unspecified amount relating to damages in the form of erosion and loss of land value.
34 The other case was Banfai et al. v. Formula Fun Centre Inc. et al. (1984), 51 O.R. (2d) 361 (H. Ct.). In that case the court assessed damages for nuisance caused by the noise from an automobile-racing amusement park. The evidence was similar to that in the case before me as it included evidence that the nuisance caused the plaintiffs to keep their windows closed and caused loss of sleep, sore throats and headaches. The nuisance affected the plaintiffs for 5 months a year over two years. At the beginning and end of the 5 month period the track was open only on week-ends but for 3 1/2 months it was open 7 days a week from 11 a.m. to 11 p.m. Each plaintiff was awarded $10,000.
35 It goes without saying that assessments of damages have substantially increased since 1984 when both those cases were decided.
Comparisons to assessments of personal injury damages
36 In Bone v. Seal, supra, the English Court of Appeal concluded that damages in nuisance cases could be assessed by analogy to what would be awarded for loss of amenity in personal injury cases:
The nearest analogy would seem to be the damages which are awarded almost daily for loss of amenity in personal injury cases; it does seem to me that there is perhaps a closer analogy than at first sight appears between losing the enjoyment of your property as a result of some interference by smell or by noise caused by a next door neighbour, and losing an amenity as a result of a personal injury. Is it possible to equate loss of sense of smell as a result of the negligence of a defendant motor driver with having to put up with positive smells as a result of a nuisance created by a negligent neighbour? There is, as it seems to me, some parallel between the loss of amenity which is caused by personal injury and the loss of amenity which is caused by a nuisance of this kind. (at p. 793)
37 This approach was adopted by the trial judge in the Desrosiers case. One text suggests it may have been adopted in other cases: Bilson, supra, p. 131.
38 Counsel for both parties urged me to assess damages in this case by considering the assessments made by our courts in personal injury cases. Defence counsel suggested this should only be a guideline and contended that personal injuries could be more serious in that they might entail physical pain rather than merely discomfort or inconvenience.
39 I suggested that because of the intermittent and non-permanent nature of the impact of this nuisance and the kinds of activities it interfered with, one analogy might be to a soft tissue case where the symptoms were intermittent and interfered with similar activities.
40 Counsel gave me copies of numerous recent cases which, predictably, showed a wide range of assessments from case to case and from province to province. Looking only at the Ontario cases and disregarding what appear to me to be assessments at the extreme high and low end, it appears to me that the following cases are helpful to some extent.
41 In Gardner v. John [1997] O.J. No. 3826, Cavarzan J. assessed damages for pain and suffering in a whiplash case where he found the plaintiff recovered within 3 years. He assessed $25,000.
42 In Deschenes v. Midland (Town) [1999] O.J. No. 1703 Hermiston J. assessed damages in a soft tissue case which had numerous disputed features. It appears from the reasons that the judge concluded the plaintiff had suffered a condition involving pain from nerve root interference which caused intermittent debilitating pain and caused the plaintiff to give up sports and change his writing hand. It appeared the problem was permanent. He assessed $30,000.
43 My impression from reading all the cases provided and from my own experience is that the current appropriate range of an assessment for a 5 year soft tissue injury which disrupted a plaintiff's life to an extent analogous to the plaintiffs' experiences in this case is $25,000 to $40,000.
44 In my view it is somewhat helpful to consider an analogous personal injury assessment but it is necessary to assess the damages in the present case based on the facts of the case.
45 There are a number of ways in which the analogy to personal injury cases might be inappropriate.
46 The English Court of Appeal considered the analogy of an injury causing a loss of smell. That might be a more serious case in some respects since the loss would be permanent. It would also be more serious because of the constant effect of the injury compared to the intermittent effect in the present case.
47 On the other hand, a personal injury case might be a less serious case even if temporary because the loss of smell would not involve the disruption of the plaintiff's activities as happened here. For instance, losing one's sense of smell would not prevent one from going outside to enjoy the visual beauty of the day or breathing fresh air; it would not interfere with social activities on the property and would not cause someone to leave a home and property they cherished.
48 I can think of a number of other ways in which any physical personal injury case might be an inexact comparison.
49 In the end the trial judge must assess the loss by choosing an amount of money which reflects the judge's assessment of the damage taking into account the range of awards which the courts of Ontario are currently awarding in a wide range of cases. This is more of an art and public policy issue than a science and there is no formula available. Whether or not the judge is skilful in the art or has made appropriate public policy is decided by the appellate courts.
The assessment of the damages in this case
50 There are a number of factors which distinguish the damage to each plaintiff. Some of the more significant are these: the frequency and degree of intensity of the odour on their property, the frequency and time of day they spent on the property, the extent to which their activities were disrupted, my assessment of the extent to which each was personally affected taking into account their physical and psychological persona. I found no special vulnerabilities which would make the type of impact they suffered unforeseeable and therefore not compensable.
51 As a general approach I have grouped the plaintiffs in terms of the frequency and intensity of odour on their properties. Then I differentiated among those in the group by considering the extent of their exposure; for instance, some were away at work in the daytime, others were at home most of the time, the Pykes moved away before the end of the five year period, Mr. Donnison and Mr. Chapman changed their life styles during the five year period. Then I tried to adjust these figures to take into account all the other factors.
52 I have taken into account only the findings I made in my earlier reasons which I shall not repeat and the additional testimony of the plaintiffs which I heard on the resumption of the trial.
53 I assess the non pecuniary general damages of the plaintiffs for the approximately five years of odour from the fall of 1994 to November 23, 1999 as follows:
|
|
Jean Gardner |
$35,000 |
|
|
|
Bernice Gardner |
$35,000 |
|
|
|
Patricia Pyke |
$20,000 |
|
|
|
Craig Pyke |
$10,000 |
|
|
|
Donald Walker |
$15,000 |
|
|
|
Leslie Walker |
$15,000 |
|
|
|
Ron Chapman |
$12,000 |
|
|
|
Erlyne Young |
$18,000 |
|
|
|
Gary Young |
$13,500 |
|
|
|
Ken Giles |
$10,000 |
|
|
|
Sally Giles |
$20,000 |
|
|
|
Margaret Davis |
$20,000 |
|
|
|
Christa Downes |
$15,000 |
|
|
|
Chris Downes |
$ 7,500 |
|
|
|
Karen Donnison |
$ 7,500 |
|
|
|
Gordon Donnison |
$10,000 |
|
The difficulties with the current law
54 Before leaving this subject I feel obliged to make a comment for the assistance of our legislators.
55 The current law concerning nuisance arising from farm operations is a combination of statute and common law and is, in my view, unfair and impractical.
56 It is unfair to those injured by the nuisance because they cannot stop the nuisance and must sue over and over again if it continues as they can only be compensated for the damage suffered up to the time of a trial and not for any future damage. It is unfair to the farmer because he or she will be exposed to the uncertainty of future lawsuits repeatedly. The farmer will not know if the future law suits will be different in their outcome either as to liability or damages as each issue will have to be considered afresh in each trial.
57 In addition, the system is impractical. Such disputes will tie up courts and disrupt the parties' lives and livelihoods for years. The costs to both plaintiffs and farmers in this system will be unconscionable and may well make justice unavailable
58 The fundamental problem in the system is that the court does not have the power to issue an injunction to stop a nuisance.
OUTSTANDING ISSUES
59 I would like submissions from counsel on the issues of pre-judgment interest and costs. These submissions should address these matters: the rate and commencement date for interest, if any; whether costs should be awarded and, if so, to whom; whether any costs awarded should be assessed or fixed. In the event I decide to fix costs I shall ask the parties for further submissions as to the amount and do not require those now.
60 Mr. Good shall send his submissions on these issues to me and Mr. Colautti by January 10. Mr. Colautti shall send his submissions by January 21 and Mr. Good shall send any reply submissions by January 28. If counsel can agree on a shorter timetable I will adopt it.
FERGUSON J.
cp/d/qlmcc