TMS Lighting Ltd. et al. v. KJS Transport Inc. et al., 2014 ONCA 1

JudgeCronk, Blair and Strathy, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateSeptember 03, 2013
JurisdictionOntario
Citations2014 ONCA 1;(2014), 314 O.A.C. 133 (CA)

TMS Lighting v. KJS Transport Inc. (2014), 314 O.A.C. 133 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JA.006

TMS Lighting Ltd. and Bahra Holdings Inc. (plaintiffs/respondents in appeal) v. KJS Transport Inc., Kulwant Singh and 1707416 Ontario Inc. (defendants/appellants)

(C56285; 2014 ONCA 1)

Indexed As: TMS Lighting Ltd. et al. v. KJS Transport Inc. et al.

Ontario Court of Appeal

Cronk, Blair and Strathy, JJ.A.

January 2, 2014.

Summary:

Airborne dust generated by the defendants' trucking operations persistently disrupted the plaintiffs' conduct of their neighbouring lighting manufacturing business. The plaintiffs also complained that the defendants' trucks encroached on the plaintiffs' premises and had struck and displaced a series of concrete barrier stones. The plaintiffs sued the defendants in nuisance and trespass, seeking compensation for various losses, including for an alleged loss of productivity in their business occasioned by the dust.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 5907, held that the corporate defendants were liable to the plaintiffs in both nuisance and trespass. The court awarded damages to the plaintiffs for loss of productivity and the costs of refinishing various lighting fixtures to repair damage caused by the dust, among other matters. The defendants appealed from the court's finding that their interference with the plaintiffs' lands was unreasonable and, consequently, from its holding that they were liable to the plaintiffs' for nuisance. They also appealed from the court's awards of damages for loss of productivity, in both nuisance and trespass, and refinishing costs.

The Ontario Court of Appeal allowed the appeal in part, set aside the judgment below relating to lost productivity damages, and ordered a new trial limited to the assessment of those damages both in nuisance and trespass, save only for the admitted trial award of $5,910 for the plaintiffs' costs of replacing damaged barrier stones.

Damages - Topic 801

Assessment - General - The Ontario Court of Appeal stated that "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. ... To hold otherwise would sanction trial unfairness" - See paragraph 65.

Damages - Topic 803

Assessment - General - Where amount of loss difficult to estimate or determine - [See Damages - Topic 4213 ].

Damages - Topic 1210

Nominal damages - Insufficient evidence to assess amount of loss - [See Damages - Topic 4213 ].

Damages - Topic 4212

Torts affecting lands and buildings - Normal measure - Trespass - [See Damages - Topic 4213 ].

Damages - Topic 4213

Torts affecting land and buildings - Normal measure - Nuisance - For approximately five years, airborne dust generated by the defendants' trucking operations persistently disrupted the plaintiffs' conduct of their neighbouring lighting manufacturing business - The plaintiffs also complained that the defendants' trucks encroached on the plaintiffs' premises and had struck and displaced a series of concrete barrier stones - The trial judge found the defendants liable to the plaintiffs in nuisance and trespass - The judge awarded damages to the plaintiffs for loss of productivity and the costs of refinishing various lighting fixtures to repair damage caused by the dust - The judge found that the plaintiffs failed to lead available evidence to support their theory of lost productivity damages calculated as a percentage of the plaintiffs' gross sales revenues - However, the judge concluded that the plaintiffs' lost productivity damages could be measured on the basis of the estimated value of production time lost to address the dust problems - The defendants appealed - The defendants argued that, having rejected the plaintiffs' theory that their lost productivity damages could be calculated as a percentage of gross sales revenues, the trial judge, on his own motion, devised a method for quantifying those damages that was neither supported by the evidence nor urged by the parties - The Ontario Court of Appeal held that the trial judge erred in his approach to the quantification of lost productivity damages and trial fairness was compromised - There was no evidentiary support for key components of his calculations - Nor were the parties afforded an opportunity to test the reliability of or otherwise counter the quantification approach adopted by the trial judge - The trial judge's quantification of the plaintiffs' lost productivity damages could not stand - However, the court rejected the defendants' argument that any award of damages for the plaintiffs' lost productivity should be nominal, at best - The plaintiffs had suffered a substantial and unreasonable interference with the use and enjoyment of their lands, as well as trespass to those lands - That the manner of proof of lost productivity damages posited by the plaintiffs at trial failed, did not mean that no proof was available - A new assessment of the plaintiffs' lost productivity damages arising from the defendants' nuisance and trespass was required in the interests of justice - See paragraphs 28 to 87.

Torts - Topic 1002

Nuisance - General principles and definitions - Elements of - [See Torts - Topic 1253 ].

Torts - Topic 1007

Nuisance - General principles and definitions - Private nuisance defined - [See Torts - Topic 1253 ].

Torts - Topic 1253

Nuisance - Particular nuisances - General - Dust emission - Airborne dust generated by the defendants' trucking operations persistently disrupted the plaintiffs' conduct of their neighbouring lighting manufacturing business - The trial judge held that the defendants' interference with the plaintiffs' use and enjoyment of their lands was substantial and unreasonable and the defendants were liable to the plaintiffs for damages for nuisance - The defendants appealed - The defendants argued that the trial judge erred in his nuisance analysis by failing to assign appropriate "weight, impact and effect" to the alleged abnormal sensitivity of the plaintiffs' manufacturing operations to damage from dust - The defendants said that this error fatally tainted the trial judge's finding that the defendants' interference with the plaintiffs' use and enjoyment of their lands was unreasonable in the circumstances - The Ontario Court of Appeal rejected this ground of appeal - There was no reversible error in the trial judge's appreciation and application of the private nuisance test set out in Antrim Truck Centre Ltd. (2011 ONCA; 2013 SCC), or in his analysis of the factors pertinent to that test - The trial judge's reasons confirmed that he was alive to the significance of the alleged sensitivity of the plaintiffs' manufacturing operations and products to damage from the effects of dust - His finding of unreasonable interference was open to him on the evidence adduced at trial - See paragraphs 12 to 27.

Cases Noticed:

Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation) (2011), 281 O.A.C. 150; 2011 ONCA 419, revd. (2013), 441 N.R. 342; 301 O.A.C. 281; 2013 SCC 13, appld. [para. 13].

Mandrake Management Consultants Ltd. et al. v. Toronto Transit Commission (1993), 62 O.A.C. 202; 102 D.L.R.(4th) 12 (C.A.), refd to. [para. 13].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 25].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193 (S.C.C.), refd to. [para. 25].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 60].

Magnussen Furniture Inc. v. Mylex Ltd. (2008), 234 O.A.C. 329; 89 O.R.(3d) 401; 2008 ONCA 186, refd to. [para. 60].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341; 2001 SCC 58, refd to. [para. 60].

Martin v. Goldfarb et al. (1998), 112 O.A.C. 138 (C.A.), leave to appeal denied (1999), 239 N.R. 193 (S.C.C.), consd. [para. 61].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 191 W.A.C. 161, refd to. [para. 61].

100 Main Street East Ltd. v. W.B. Construction Ltd. (1978), 20 O.R.(2d) 401; 88 D.L.R.(3d) 1 (C.A.), refd to. [para. 61].

Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd., [1976] 1 S.C.R. 267; 4 N.R. 1, refd to. [para. 61].

Stemeroff et al. v. Swartz et al. (2005), 198 O.A.C. 141 (C.A.), refd to. [para. 65].

Rodaro et al. v. Royal Bank of Canada et al. (2002), 157 O.A.C. 203; 59 O.R.(3d) 74 (C.A.), refd to. [para. 65].

Rosenhek v. Windsor Regional Hospital (2010), 257 O.A.C. 283; 2010 ONCA 13, leave to appeal denied (2010), 410 N.R. 398 (S.C.C.), refd to. [para. 85].

Counsel:

Thomas Slade and Jonathan Melo, for the appellants;

Salvatore Mannella, for the respondents.

This appeal was heard on September 3, 2013, before Cronk, Blair and Strathy, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Cronk, J.A., and was released on January 2, 2014.

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    ...H.C.); Whitehead v. R. B. Cameron Ltd. (1967), 63 D.L.R. (2d) 180 (N.S.S.C. App. Div.). [45] TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1; Martin v. Goldfarb, [1998] O.J. No. 3403 at para. 75 (S.C.J.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 516; Eastwalsh Homes Ltd. ......
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    ...28, Marchand v. The Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.), TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 Short Civil Decisions Dunford v. Otonabee-South Monaghan (Township), 2022 ONCA 230 Keywords: Torts, Misfeasance in Public Office, Civil Procedu......
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