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Dust generated by trucks driving on an unpaved parking lot can be a nuisance to industrial neighbours, according to the Ontario Court of Appeal.

In TMS 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 land.”

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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