Appendix B: Private Nuisance Case Summaries

Go Back to the Table of Contents for Property Rights in the Defence of Nature

1851: Walter v. Selfe(1)
A brick-maker is forbidden to violate his neighbour’s right to unpolluted and untainted air.

Shortly after Mr. Selfe began manufacturing bricks on his property in the English countryside, the owner and tenant of the neighbouring house and garden took him to court. They sought an injunction against the burning process, objecting that the resulting smoke, vapour, and “floating substances” caused inconvenience and discomfort.

Knight Bruce, the Vice-Chancellor who heard the case, determined that the brick burning constituted a nuisance and issued an injunction prohibiting any burning that damaged or annoyed the plaintiffs or injured their garden. The plaintiffs, he said, were entitled to “unpolluted and untainted air,” which he described as “air not rendered to an important degree less compatible, or at least not rendered incompatible, with the physical comfort of human existence – a phrase to be understood of course with reference to the climate and habits of England.”(2)

Knight Bruce found it unnecessary to determine whether the smoke from Mr. Selfe’s brick burner threatened human or animal health. Suffice it to say that it was “an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober and simple notions among English people.”(3)

Mr. Selfe tried without success to defend his brick burning on the grounds that others also polluted the local air. But, the Vice-Chancellor responded, the plaintiffs had not objected to these more remote operations. And even if they were nuisances, they would “not form a reason why the defendant should set up an additional nuisance. There is no ground, I think, for inferring a licence to him.”(4)

Nor did Mr. Selfe’s argument that he was merely using his land in a common and useful way sway the Vice-Chancellor, who noted that otherwise lawful uses of one’s property would be forbidden if they interfered with others’ property rights: “There are notorious instances of various kinds in which the rights of neighbouring occupiers or a neighbouring proprietor prevent a man from using his land as, but for those rights, he properly and lawfully might use it. A man may be disabled from building on his own land as he may wish, by reason of his neighbour’s rights.”(5)

1858: The Attorney General v. The Borough of Birmingham(6)
A city may not discharge raw sewage into a river, even if doing so serves the national interest.

Mr. Adderley owned a large estate on the Tame River, seven miles below its convergence with the Rea River. Although the town of Birmingham had long drained sewers into the Rea, until the 1850s they were sufficiently small and disperse, and the sewage sufficiently purified by filtration, as to not interfere with downstream water quality. Following the passage of the Birmingham Improvement Act of 1851, however, the town council constructed one large main public sewer disgorging into the Tame River, polluting it badly. The pollution aggravated disease, killed fish, and prevented cattle from drinking from the river and sheep from being washed in it. After four years of empty assurances that the town council would soon stop polluting, Mr. Adderley turned to the courts, requesting an interim injunction preventing the opening of additional sewers and an undertaking that Birmingham would, within a specified period, abate the existing nuisance.

The defendants did “not deny that the evil complained of is highly offensive.”(7) They argued, however, that the court should allow continued pollution in the name of the public good. “[T]he evil that must ensue if the Court should interfere would be incalculable,” they maintained. “The deluge of filth will cause a plague, which will not be confined to the 250,000 inhabitants of Birmingham, but will spread over the entire valley and become a national calamity. The increase of population, inseparable from the progress of a nation in industry and wealth, is attended of necessity by inconvenience to individuals against which it is in vain to struggle. In such cases private interests must bend to those of the country at large.”(8)

Vice-Chancellor Sir Page Wood dismissed the argument as an “extreme position . . . of remarkable novelty.” He was not, he explained, a public safety committee; his function was simply to interpret the law and to define who has what rights. Once the plaintiff’s right to enjoy a clean river was established, the court should grant an injunction, regardless of its consequences: “[I]t is a matter of almost absolute indifference whether the decision will affect a population of 25,000 or a single individual carrying on a manufactory for his own benefit.”(9)

Sir Page added that if an injunction would produce considerable injury, the court would, “by way of indulgence,” give the defendant an opportunity to stop its nuisance before enjoining its activity. But if the defendant failed to stop the nuisance, it would be up to Parliament – rather than the court – to allow it to continue: “If, after all possible experiments, they cannot drain Birmingham without invading the Plaintiff’s private rights, they must apply to Parliament for power to invade his rights.”(10)

The defendants also argued that pollution should be permitted on the grounds that Birmingham residents had a prescriptive right to pollute (meaning a right to carry on a longstanding activity). Sir Page answered that whether or not such a right had existed, previous sewage disposal had not polluted the river as it was now doing. Previous rights would therefore no longer apply.

Lastly, the defendants claimed that the Birmingham council operated under legislative authority. Again, Sir Page rejected this argument. His review of the act governing the matter indicated that it preserved people’s common law rights respecting nuisances. It is clear, he concluded, that “nothing in this Act contained has given the Defendants any right so to interfere with the river as to produce the nuisance of which the Plaintiff complains.”(11)

1859: Imperial Gas Light and Coke v. Broadbent(12)
Once a plaintiff’s rights have been established, a judge will, as a matter of course, issue an injunction against a nuisance.

Samuel Broadbent had leased market gardens near Fulham, England, for 15 years when, in 1851, the Imperial Gas Light and Coke Company constructed a large retort house 40 feet from his grounds. The noxious gasses emitted from the building injured his flowers, fruits and vegetables. After one legal action in which he obtained damages but following which the gas company erected another retort house, aggravating the nuisance, Mr. Broadbent returned to court, this time seeking an injunction. A series of courts, culminating in the House of Lords, heard his case; all agreed that an injunction was the appropriate remedy for this ongoing nuisance.

The gas company argued that the “balance of convenience” was in its favour: while its activities merely inconvenienced Mr. Broadbent with “trifling damage,” an injunction would stop the making of gas and greatly injure the public. In response, Lord Kingsdown pointed out that, in principle, the size of the damage makes no difference. He spelled out the rules governing injunctions as follows:

The rule I take to be clearly this: if a Plaintiff applies for an injunction to restrain a violation of a common law right, if either the existence of the right or the fact of its violation be disputed, he must establish that right at law; but when he has established his right at law, I apprehend that unless there be something special in the case, he is entitled as of course to an injunction to prevent the recurrence of that violation.(13)

Lord Campbell agreed that once a plaintiff’s right has been established, it is a judge’s duty to grant an injunction if a nuisance continues; he would do so as a matter of course. Damages, he explained, would be insufficient: “How can he prove to a jury the exact quantity of pecuniary loss that he may have sustained? He may be able to show the value of the flowers and trees that have been destroyed, but how can he show the irreparable injury done to his trade by his customers leaving him, whom he may find it most difficult or impossible to get back?”(14)

Lord Campbell noted that conducting one’s works in a manner that injures another violates the maxim, Sic utere tuo ut alienum non laedas (use your own property so as not to harm another’s). He explained, “The Appellants are at liberty, under the injunction, to carry on their works so that they do not injure the Plaintiff, and they must either find out some mode by which they can carry on their works without that injury, or they must limit the quantity of gas to that which they made before this new retort was constructed.”(15)

1865: St. Helen’s Smelting v. Tipping(16)
Nuisances resulting in material injury or financial harm cannot be excused, regardless of the character of the neighbourhood in which they occur.

In June 1860, William Tipping purchased the Bold Hall manor house, along with 1300 acres of surrounding land. Three months later, operations began at the nearby St. Helen’s Copper Smelting Company (Limited). The works emitted noxious gases and vapours which damaged Mr. Tipping’s hedges and trees, sickened his cattle, adversely affected people, reduced the land’s value, and generally interfered with his beneficial use of land. Mr. Tipping sued St. Helen’s directors and shareholders to recover damages for injuries done to his trees and shrubs.

The first trial concluded that the smelting operations constituted a nuisance. Although the business was “an ordinary business, and conducted in a proper manner,” it was not carried on in a proper place. Mr. Tipping was awarded damages of £361.

St. Helen’s appealed the decision, arguing that the judge had misdirected the jury. The presence of many other manufactories and chimneys in the neighbourhood, it claimed, made it a suitable place to carry on its business. It cited the judgment in Hole v. Barlow: “The right of the owner of a house to have the air unpolluted is subject to this qualification, that necessities may arise for an interference with that right pro bono publico, to this extent, that such interference be in respect of a matter essential to the business of life, and be conducted in a reasonable and proper manner, and in a reasonable and proper place.”(17)

The House of Lords rejected St. Helen’s argument and refused to grant a new trial.

In his judgment, which future courts would frequently cite, Lord Westbury distinguished between alleged nuisances resulting in personal discomfort and those resulting in material injury or financial harm. Courts should consider the character of the neighbourhood only in the former cases:

My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.(18)

Lord Wensleydale’s judgment stressed that trifling inconveniences are not grounds for nuisance. In a county “where great works have been created and carried on, and are the means of developing the national wealth, you must not stand on extreme rights and allow a person to say, ‘I will bring an action against you for this and that, and so on.’ Business could not go on if that were so. Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.”(19)

1866: Dent v. Auction Mart(20)
Property rights include the right to light and air.

Dent, Palmer, & Co. had leased its London premises for ten years when Auction Mart Company, Limited, purchased a number of neighbouring houses, pulled them down, and started to rebuild. Dent objected that the new structures – both higher than the old and closer to its premises – would block its light and air flow. As one witness explained, “The result would be . . . to place the staircase windows of Messrs. Dent’s house in a dismal stagnant well of small size and great depth.”(21)

Dent offered not to oppose the construction if Auction Mart paid it £2000 in damages and installed light-reflecting enamelled tiles on the new wall. When these negotiations failed, Dent sought an injunction. The court issued “a perpetual injunction restraining the Defendants from erecting any building so as to darken, hinder, or obstruct the free access of light and air to the ancient windows of the Plaintiffs.”(22)

In his judgment, Vice-Chancellor Sir Page Wood noted the increasing frequency of such disputes as people built higher buildings that were more likely to affect their neighbours. He acknowledged that many cases, such as those causing simple annoyance or damages amounting to a few pounds, did not warrant injunctions. Two circumstances would, however, call for an injunction: a substantial interference with comfort and/or a substantial diminution of light for carrying on work. These criteria applied to the case at hand.
Sir Page extensively cited Yates v. Jack, a recent case in which the court prohibited the raising by 50 per cent of a building thirty feet from the plaintiffs’ premises. The plaintiffs, it found, had “‘an absolute indefeasible right to the enjoyment of the light, without reference to the purpose for which it has been used.'”(23) In that case, Sir Page noted, “it was no answer to a Plaintiff complaining that his light had been obstructed to shew that other persons had been able to carry on trade successfully with less light than would remain to the complaining party after the obstruction had been set up.”(24) Accordingly, he dismissed Auction Mart’s contention that its construction would leave Dent with as much light as others would find sufficient for the same purposes.

Sir Page rejected the defendant’s argument that, in this case, the plaintiff should be entitled only to damages. A damage award, he explained, would amount to giving the defendant the right to purchase the plaintiff’s property at a price set by a jury: “His comfort is to be taken away, not at his own estimate, but at the value which a jury might put on it.”(25) Rather, it is the property owner who should decide whether or not he wants “to sell his comfort and ease,” and at what price:

[I]t cannot be contended that those who are minded to erect a building that will inflict an injury upon their neighbour have a right to purchase him out without any Act of Parliament for that purpose having been obtained. It appears to me it cannot safely be held that this Court will allow parties so to exercise the rights which they may have in their soil as to inflict an injury on their neighbour, if the neighbour is unwilling to take any compensation; or even though he be willing to take compensation, if he is not ready to submit to the valuation of a jury, but insists on his own right to determine what the value of his property is.(26)

1875: Smith v. Smith(27)
Awarding damages in lieu of injunctions may amount to forcing people to sell their property rights.

The plaintiff and defendant owned and occupied adjoining properties, separated in the back by a nine-foot-high party wall. The windows of the plaintiff’s kitchen, scullery, and workshop faced the wall from a distance of eight feet. In 1875, the defendant added on to his home, raising the wall from nine feet to 26 feet and obscuring the light and air flow that the plaintiff had enjoyed for 46 years. The addition darkened the plaintiff’s kitchen, scullery, and workshop, necessitating the use of gaslight. It rendered the workshop useless for the plaintiff’s cabinet-making and upholstering – work which required good light. Furthermore, it affected his family’s health, obliging his wife and daughter to leave the home. The plaintiff filed suit, requesting damages and an injunction.

The defendant did not deny obstructing the light. He argued, however, that the court should exercise its power to substitute damages for an injunction on the grounds that the plaintiff’s delay in filing suit had led him to spend a considerable sum on construction.

Regardless, Sir George Jessel issued a mandatory injunction for removal of the addition. He explained that the court must exercise its powers “in such a way as to prevent the Defendant doing a wrongful act, and thinking that he could pay damages for it.”(28) One cannot force another to sell his property rights:

In granting a mandatory injunction, the Court did not mean that the man injured could not be compensated by damages, but that the case was one in which it was difficult to assess damages, and in which, if it were not granted, the Defendant would be allowed practically to deprive the Plaintiff of the enjoyment of his property if he would give him a price for it. When, therefore, money could not adequately reinstate the person injured, the Court said, . . . “We will put you in the same position as before the injury was done.”(29)

Sir George suggested that a defendant’s intentions could affect the remedy chosen by the court. Ignorance of wrong could justify the substitution of damages for an injunction. However, ignorance could not justify the defendant’s behaviour in this case: it was inconceivable that the defendant did not know that he was blocking the plaintiff’s light.

1894: Shelfer v. City of London Electric Lighting Company(30)
An injunction is the appropriate remedy for nuisance unless the damages are small, easily estimated, and can be adequately compensated by money.

In 1891, the City of London Electric Lighting Company acquired land adjacent to the Waterman’s Arms, a public house on the River Thames. It excavated, erected buildings, and installed large electricity generators – some as close as 30 feet from the public house.

The generating station showered its neighbours with clouds of steam. Its engines’ noise and vibrations shook the Waterman’s Arms’ rooms and furniture, disturbing people’s sleep, interfering with their comfort, and even making some of them sick. The public house began to list, and a two-inch-wide crack appeared in one wall.

Victualler and innkeeper William Shelfer, along with Meux’s Brewery Company, from whom he leased the Waterman’s Arms, brought actions for injunctions and damages. Although the lower court found that the power generation constituted a nuisance, it awarded damages instead of an injunction on the grounds that the nuisance had not decreased the public house’s profitability and that an injunction would cause great inconvenience. The plaintiffs appealed the decision and obtained from the Chancery Division an injunction restraining the continuance of the nuisance.

In the chancery hearing, the electric company fought an injunction on the grounds that it would harm the public interest. It argued that the court “ought not to grant an injunction to restrain a work which is for the benefit of the whole City of London, in which many of the main streets and public buildings would be left in darkness if the company’s works were stopped.”(31)

Lord Justice Lindley explained that, regardless of the public inconvenience, before the passage of Lord Cairns’ Act Mr. Shelfer would have been entitled to an injunction to prevent the continuation of the nuisance. The judgment in Imperial Gas Light and Coke Company v. Broadbent had articulated the principle that “an injunction would not be refused on the ground that the public might be inconvenienced if an injunction were granted.”(32)

Although Lord Cairns’ Act had empowered the courts to substitute damages for injunctions, Lord Justice Lindley insisted that the act had not prompted them to consider the public good when choosing remedies: “Neither has the circumstance that the wrongdoer is in some sense a public benefactor (e.g., a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed. . . . Courts of Justice are not like Parliament, which considers whether proposed works will be so beneficial to the public as to justify exceptional legislation, and the deprivation of people of their rights with or without compensation.”(33)

All three chancery judges agreed that substituting damages for an injunction would amount to expropriation. Lord Halsbury noted that refusing an injunction would “enable a company who could afford it to drive a neighbouring proprietor to sell, whether he would or no, by continuing a nuisance, and simply paying damages for its continuance.”(34)

Lord Justice Lindley added, “[E]ver since Lord Cairns’ Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that Court into a tribunal for legalizing wrongful acts; or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict.”(35) Finally, Lord Justice Smith explained, “a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance.”(36)

Lord Justice Smith, whose judgment would be frequently cited in future cases, offered the following guidelines for the substitution of damages for an injunction:

[I]t may be stated as a good working rule that –
(1.) If the injury to the plaintiff’s legal rights is small,
(2.) And is one which is capable of being estimated in money,
(3.) And is one which can be adequately compensated by a small money payment,
(4.) And the case is one in which it would be oppressive to the defendant to grant an injunction: –
then damages in substitution for an injunction may be given.(37)

As Mr. Shelfer’s injury clearly did not fit the above description, an injunction was the appropriate remedy.

The electric company argued that legislation permitted – even required – it to create nuisances. It had to construct its works in the densely populated area that it supplied with electricity. Since houses surrounded every available spot, it could not avoid causing offence to someone. In short, it could not supply electricity without statutory protection.

The lower court had denied the electric company’s claim that it had statutory authority to commit nuisances: “It is well settled that power to do a particular thing . . . does not justify the undertakers . . . in doing that thing so as to commit a nuisance, unless by express language or by necessary implication.”(38) The higher court’s Lord Justice Lindley also rejected the electric company’s argument that an injunction could prevent it from carrying on its business. It could, he said, avoid committing nuisances by increasing the number of its stations and decreasing the size of the generators at each one.

1896: Drysdale v. Dugas(39)
A stable, although modern and well-run, constitutes a nuisance in a residential neighbourhood.

In 1891, William Drysdale constructed a livery stable on Montreal’s primarily residential St. Denis Street. The stable was 25 feet away from C. A. Dugas’s home, and immediately adjacent to another house that Mr. Dugas would soon purchase. The stable smelled, and its 30 noisy horses disturbed Mr. Dugas and his tenant. Mr. Dugas brought a successful nuisance action for damages, both for his own discomfort and for reductions in his tenant’s rent.

In his appeal to the Supreme Court of Canada, Mr. Drysdale argued that stables were indispensable in a large city, and that this one had been constructed using the best possible drainage and ventilation methods. One judge agreed, saying that a judgment against Mr. Drysdale’s impeccable operations would make it virtually impossible to maintain a stable in Montreal. The other Supreme Court judges, however, upheld the lower courts’ decisions to grant damages.

In his judgment, Chief Justice Sir Henry Strong rejected the defences of necessity and reasonable use. Regarding the former, he cited Broder v. Saillard, a similar case dealing with the noises made by horses in a stable. There, he explained, the courts repelled the argument that the stable was both necessary and reasonable.(40) In dismissing the defence of reasonable use, Sir Henry also cited Bamford v. Turnley, a case demonstrating that the argument that extreme care and caution could justify an offensive action was “entirely without foundation.”(41)

Sir Henry’s decision dealt extensively with the issue of locality, or the character of the neighbourhood. He explained that one must pay heed to a property’s surroundings when determining whether a nuisance exists: “It would be of course absurd to say that one who establishes a manufactory in the use of which great quantities of smoke are emitted, next door to a precisely similar manufactory maintained by his neighbour, whose works also emit smoke, commits a nuisance as regards the latter, though if he established his factory immediately adjoining a mansion in a residential quarter of a large city, he would beyond question be liable for damages for a wrongful use of his property to the detriment of his neighbour.”(42) The character of the neighbourhood, however, remains a limited defence. Sir Henry explained that the decision in Bamford v. Turnley included important comments on the locality rule. In that decision, the court had determined: “Whenever, taking all the circumstances into consideration including the nature and extent of the plaintiff’s enjoyment before the acts complained of, the annoyance is sufficiently great to amount to a nuisance according to the ordinary rule of law, an action will lie whatever the locality may be.”(43)

Sir Henry also addressed the extent to which Mr. Drysdale was free to use his own property. He explained that even the most absolute proprietary rights “must, according to the general principles of all systems of law, be subject to certain restrictions subordinating the exercise of acts of ownership to the rights of neighbouring proprietors; sic utere tuo ut alienum non laedas is as much a rule of the French law of the province of Quebec as of the common law of England.”(44)

The issue of “coming to a nuisance” also arose. Mr. Drysdale had objected that since Mr. Dugas had acquired the neighbouring property after the stable’s construction, he had no right to complain. Sir Henry dismissed this argument: “This circumstance as to the date of the respondent’s acquisition of title can make no difference in his rights to object to the nuisance. In Tipping v. St. Helen’s Smelting . . . the facts were that the plaintiff had come to the nuisance (i.e. acquired his property) with a knowledge of the existence of the nuisance, and it was nevertheless held that he was entitled, not merely to damages, but to an injunction to restrain the further commission of the acts complained of.”(45)

1901: Hopkin v. Hamilton Electric Light(46)
An electric company’s licence to produce and sell power does not confer upon it any authority to create a nuisance.

The Hopkin family had lived on Victoria Avenue North, in Hamilton, Ontario, for 26 years when, in 1900, the Hamilton Electric Light and Cataract Power Company built a transformer and distribution station next door. The station, just 13 feet from the Hopkins’ home, included three large engines that vibrated vigorously. Although the vibrations did not structurally damage the Hopkins’ house, they reduced its value. In fact, they made it virtually uninhabitable – so unhealthy and uncomfortable as to cause the Hopkins to move out. Mrs. Hopkin went to court, where the judge found that the electric company had created a serious nuisance. He awarded damages and issued an injunction, effective three months later, restraining the company from operating on its works so as to occasion a nuisance.

In considering the electric company’s claim that statutory authority exempted it from liability for its nuisance, Mr. Justice Street reviewed a number of cases on the subject and summarized his findings:

It is well established . . . on the one hand that a company obliged by law to serve the public – as a common carrier, for instance – clothed by statute with authority to do certain things, may do them at the place and in the manner authorized by the statute, without being liable to be charged with a nuisance necessarily created and without paying any compensation other than that provided by statute to persons who may be injured thereby. . . .

On the other hand, it is equally clearly settled that a body, whether public or private, possessed of powers which are strictly permissive – that is to say, which the law will not compel it to execute, those powers being such as are capable of execution without the creation of a nuisance, and conferred without any provision being made for compensating persons injured by their exercise – is only authorized to execute them in such a manner as not to create a nuisance.(47)

The judge concluded that while the government had granted the electric company the power “to construct, maintain, complete, and operate works for the production, sale, and distribution of electricity,” it had not compelled it to operate in such a location and manner as to create a nuisance. Nor had the government provided for compensation for injuries caused by the company’s operations. Such a company, he said, must act so as not to create a nuisance. And if nuisance were an in-evitable result of its activities, it would have to be restrained. Regard-less, the judge noted, the work in question could very likely have been carried on in a less injurious way. Had the company been willing to spend more money, it could have avoided the nuisance by dividing its work amongst several stations or purchasing more land for its operations.

1916: Beamish v. Glenn(48)
Courts should issue injunctions against nuisances as a matter of course, unless they cause only slight or temporary damage.

In 1911, Mr. Beamish purchased a lot on Toronto’s Boston Avenue, and there erected a home. The neighbourhood featured a mix of residences, factories, and shops; Carlaw Avenue, to the west, was primarily industrial, while to the east, houses lined Pape Avenue. When, four years later, Mr. Glenn tried to purchase the adjoining lot for a blacksmith shop, Mr. Beamish actively opposed the plan. Despite receiving negative petitions and deputations, City Council’s Property Committee granted a permit for the proposed smithy. Mr. Glenn constructed his shop and began the noisy, smelly, smoky work of shoeing horses and setting tires on wagons. The persistent clanging of the hammer on the anvil and the odour of singed hoofs offended Mr. Beamish and compelled him to close his doors and windows even in very warm weather. He sued Mr. Glenn, accusing him of committing a nuisance and preventing him and his family from enjoying their property.

The trial judge, Mr. Justice Sutherland, found that the blacksmith business did indeed constitute a nuisance, despite the presence of other noisy, smoky factories in the neighbourhood. Echoing the judgment in Appleby v. Erie Tobacco Co., he explained that the noise, smoke, and odours “’cause material discomfort and annoyance and render the plain-tiff’s premises less fit for the ordinary purposes of life, even making all possible allowances for the local standard of the neighbourhood.'”(49)

The fact that the defendant did his work “in a usual and reasonable fashion” did not influence the judge: “If the defendant has caused a nuisance to the plaintiff, it is of course no defence to say that he is making a reasonable use of his premises in the carrying on of a lawful occupation.” On appeal, Mr. Justice Riddell agreed. “It is,” he said, “of no importance.”(50)

Nor could a city permit exonerate the blacksmith. The trial judge explained that the permit conferred no authority to commit a nuisance. Upon hearing the appeal, Chief Justice Meredith elaborated: “The power of cities to regulate and control the location, erection, and use of buildings . . . is a restrictive power, not one under which the right can be given to any one man to injure the property of another, or so to deprive another of any of his property or other rights.”(51)

Mr. Justice Sutherland discussed the circumstances warranting an injunction. The court, he explained, will not normally enjoin an activity if it causes slight or temporary damage. Otherwise, an injunction would be the rule. The judge cited the decision in Attorney-General v. Cole & Son: “‘if it really is a nuisance, then it seems almost to follow as a matter of course that it is a nuisance which ought to be restrained, assuming that it is not of a trifling or a passing character.'”(52)

In this case, the blacksmith shop nuisance would not pass; Mr. Glenn intended to carry on his business as before. So Mr. Justice Sutherland chose an injunction as the appropriate remedy. The Divisional Court, after hearing the defendant’s appeal, upheld the original judgment. Chief Justice Meredith explained, “[T]he carrying on of the defendant’s business, even in an ordinary, careful and proper manner, cannot be continued there. The business ought to go elsewhere, in the defendant’s own interests.”(53)

1949: Walker v. McKinnon Industries(54)
In causing sensible, visible, and material damage to a neighbouring florist, a foundry’s emissions constitute a nuisance.

Mr. Walker had been growing flowers commercially since 1905, when he built his first greenhouse in St. Catharines, Ontario. The 1925 start-up of the McKinnon foundry to the southwest of his property didn’t interfere with his business. But 15 years later, after the steel and iron products manufacturer built a forge-shop, enlarged the foundry, and changed its smelting process to one using cupolas, problems abounded. Oily fumes, soot, fly ash, and iron oxide from the new works formed a film on the glass of Mr. Walker’s greenhouses, blocking the sunlight. A film coated his plants, interfering with photosynthesis and growth. Sulphur dioxide in the foundry’s fumes further injured the plants.

During the war years, Mr. Walker refrained from suing the foundry, believing that the courts were unlikely to restrain a company that manufactured urgently needed munitions. Instead, the two parties reached agreements regarding damages and temporary easements for the pollution. Once the war ended, however, Mr. Walker launched a court action for both damages and an injunction.

Chief Justice McRuer, who heard the case in the Ontario High Court, found that the deposit on the greenhouse glass and the injury to the plants materially injured Mr. Walker and constituted a nuisance. He ordered damages and issued an injunction, to take effect in four and a half months, against the discharge of any damaging substance. Two higher courts affirmed his judgment.

In his decision, Chief Justice McRuer extensively reviewed the law of nuisance. He started with Blackstone, who in 1769 had broadly (too broadly, thought the Chief Justice) defined private nuisance as “any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another.”(55)

In narrowing the definition of nuisance, the Chief Justice suggested that the injury should be sensible, visible, and material. He cited Bamford v. Turnley for the first criterion: “[W]hat makes life less comfortable and causes sensible discomfort and annoyance is a proper subject of injunction.”(56)

Regarding the second criterion – the visibility of injury – the Chief Justice cited Salvin v. North Brancepeth Coal Co., in which the distinction was made between injuries apparent to “ordinary persons conversant with the subject-matter” and injuries merely predicted by scientists with microscopes: “[A]lthough when you once establish the fact of actual substantial damage it is quite right and legitimate to have recourse to scientific evidence as to the causes of that damage, still if you are obliged to start with scientific evidence, such as the microscope of the naturalist, or the tests of the chemist, for the purposes of establishing the damage itself, that evidence will not suffice. The damage must be such as can be shewn by a plain witness to a plain common juryman.”(57)

Lastly, in regards to the materiality of the injury, the Chief Justice distinguished between material injury to property and sensible personal discomfort, referring to the decision in St. Helen’s Smelting Co. v. Tipping.

Chief Justice McRuer proceeded to reject three common defences to pollution: the existence of other pollution and the economic and social burdens imposed by stopping it. Other pollution, the Chief Justice explained, is no defence: “[E]ven if others are in some degree polluting the air, that is no defence if the defendant contributes to the pollution so that the plaintiff is materially injured. It is no defence even if the act of the defendant would not amount to a nuisance were it not for others acting independently of it doing the same thing at the same time.”(58)

Nor can a polluter defend himself on the basis of economic considerations: “The cases well establish that economic considerations do not enter into the matter, and I am not called upon to weigh the economic disadvantages to the defendant.”(59) Nor should a judge weigh the social costs of shutting down a polluting industry. In Bamford v. Turnley, the Chief Justice remembered, “Baron Bramwell in cogent language disposes of any argument that ‘the public benefit’ of the works complained of may be taken into consideration.”(60)

1952: Russell Transport v. Ontario Malleable Iron(61)

The operations of a long-established foundry become a nuisance when a business starts up on previously vacant neighbouring land.

In 1949 and 1950, the Russells purchased vacant land in Oshawa, Ontario, which they used for their new vehicle-transport business. They would pick up cars and trucks from General Motors and other manufacturers, sort and store them in their marshalling yard, and then deliver them to distributors across Ontario. Business went well until the autumn of 1951, when a distributor noticed damage to the finish of vehicles stored by Russell Transport. Inspections revealed that many of the cars in the marshalling yard were pitted and corroded. General Motors ordered the removal of all of its products from the yard.

Russell Transport traced the problem to Ontario Malleable Iron Co. Ltd., whose foundry was located just west of the marshalling yard. Charging nuisance, they went to court. Chief Justice McRuer, who heard the case in the Ontario High Court, determined that the iron and iron-oxide particles emitted from the foundry rendered the transport company’s property unfit for its intended purpose and caused the company material damage. He ordered damages and an injunction, to take effect in six months, prohibiting damaging discharges.

Ontario Malleable Iron Co. argued that over the years it had acquired a right to pollute: it had been doing business since 1907, and its predecessors had operated a foundry on the property since 1876. Chief Justice McRuer denied that the plaintiff had such prescriptive rights, both because the nature and extent of the operations had changed considerably over the years and because any pollution that the foundry had emitted would not have amounted to a nuisance against the formerly vacant land. “The defendant,” he explained, “must not only show that it has exercised the right to deposit the substances herein complained of on the plaintiffs’ lands, for the prescribed period, but that the exercise of the right amounted to a nuisance actionable at the instance of the plaintiffs and their predecessors in title for the full period of 20 years.”(62)

The Chief Justice also refused to consider that the transport company had “come to the nuisance.” Only after two years in business did it become aware of the nuisance. And regardless, according to Salmond on Torts, “It is no defence that the plaintiffs themselves came to the nuisance.”(63) On this subject the Chief Justice also cited Fleming v. Hislop: “[W]hether the man went to the nuisance or the nuisance came to the man, the rights are the same. . . .”(64)

Chief Justice McRuer devoted much attention to the question of reasonable use, introducing his discussion with another reference to Salmond on Torts: “It is no defence that all possible care and skill are being used to prevent the operation complained of from amounting to a nuisance. . . . He who causes a nuisance cannot avail himself of the defence that he is merely making a reasonable use of his own property. No use of property is reasonable which causes substantial discomfort to others or is a source of damage to their property.”(65)

The foundry had relied on Sturges v. Bridgman, where the court had held that “whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey. . . .”(66)

Chief Justice McRuer commented that that case, which had dealt with noise and vibration, had been cautiously applied to some situations that produced personal discomfort rather than those resulting in material injury to property. For more on that distinction, he referred to the judgment in St. Helen’s Smelting Co. v. Tipping, which had determined that the character of the neighbourhood cannot justify a nuisance that causes material injury to another’s property.

The Chief Justice also explained that although taking reasonable care is no defence against nuisance, the failure to take reasonable care can jeopardize the defence of reasonable use: “[I]f the defendant has taken no reasonable precautions to protect his neighbour from injury by reason of operations of his own property the defence of reasonable user is of little avail.”(67) He determined that the defendant, having “adopted no method of modern smoke or fume control,” had not taken such precautions.

1972: Newman v. Conair Aviation(68)

It is a nuisance to spray an insecticide which, drifting over the property line, frightens and distresses a neighbour.

Patricia Newman was in her yard in Delta, British Columbia, when a low-flying aircraft sprayed her neighbour’s pea crop with a dilution of the insecticide Cygon 4E. Although the plane sprayed only up to the fence line, the insecticide drifted over the property line and enveloped Ms. Newman in a bitter cloud. Ms. Newman, who thought the spray was poisonous, developed a stomach ache and a headache, from which she suffered for the next week. Her horse, who had been terrified by the plane’s roar, also seemed sick for several days. When Patricia’s elderly mother, Margaret Newman, arrived home shortly thereafter, the plane passed again and she, too, was enveloped in spray, which caused itching, burning, headaches and nausea. The Newmans sued for damages, target-ing both their neighbour and the company he had hired to spray his crop.

Chief Justice Wilson of the British Columbia Supreme Court found both the farmer and the spraying company liable for damages. He agreed with their contention that the diluted spray could not have harmed human or animal health, or that of trees or vegetables. But he explained that it was a nuisance nonetheless, for it interfered with the Newmans’ enjoyment of their property. Their fear and subsequent illness, he said, was normal: “The reaction of an ordinary person, disturbed by a threatening noise and enveloped in a moist mist of what he knows is a toxic spray, must be one of fright, perhaps of terror, and nausea, without actual poisoning, may reasonably follow. The groundling, sprayed without warning, is not to be expected to know that the mist which covers his body and enters his nose and mouth is poisonous only to insects.”(69)

The Chief Justice also pointed out that the women’s ordeal could have easily been avoided. The farmer could have sprayed the area near his property line by hand; furthermore, he could have warned his neighbours that a loud airplane would be spraying a harmless spray.

1981: Schenck v. Ontario(70)

The application of road salt which damages fruit trees along the highway constitutes a nuisance.

Louis Schenck operated a peach farm near St. Catharines, Ontario. Michael Rokeby grew apples on his farm near Aylmer, Ontario. Fruit trees on both farms suffered from salt sprayed by traffic on highways bordering their orchards; the salt dessicated the trees, causing severe die-back and reducing crop yields. Both farmers sought compensation from the province for their economic losses; both were denied. In 1978, both sued. Mr. Justice Robins, of the Supreme Court of Ontario, ordered that the two cases be tried together.

Mr. Justice Robins found that while the application of salt was neither unreasonable nor negligent, it was nonetheless a nuisance, since it had interfered with the farmers’ use of their lands and caused them material injury. Although the government enjoyed immunity from injunctions (thanks to the Proceedings Against the Crown Act), it could not escape liability for damages.

In its defence, the government argued that the use of road salt was in the public interest. Mr. Justice Robins countered that taxpayers should bear the costs of socially useful activities: “I do not agree that the plaintiffs’ property interests may be infringed with impunity. . . . In reality, [the farmers’] injury is a cost of highway maintenance and the harm suffered by them is greater than they should be required to bear in the circumstances, at least without compensation. Fairness between the citizen and the state demands that the burden imposed be borne by the public generally and not by the plaintiff fruit farmers alone.”(71)

The government also argued that it had legislative authority to pollute. But it failed to persuade Mr. Justice Robins that damage from road salt was the inevitable result of its exercising the duty imposed upon it by the Public Transportation and Highway Improvement Act, which required it to maintain the province’s highways. The legislation neither contemplated such a nuisance nor provided for compensation. “An acceptance of the government’s position,” the judge concluded, “is tantamount to permitting expropriation without compensation”(72) – something that the legislation could not justify.

Furthermore, the legislation governing highway maintenance was permissive, rather than mandatory; under it, the province could have chosen to use harmless, but more expensive, de-icing agents. On this issue the judge cited a recent House of Lords decision: “[I]t is ‘for the defendant to establish that any proved nuisance was wholly unavoidable and this quite regardless of the expense that might necessarily be involved in its avoidance.'”(73)

1986: Desrosiers v. Sullivan Farms(74)
A piggery may not discharge odours that interfere with its neighbours’ enjoyment of their property.

When Terrance Sullivan expanded his Charlo, New Brunswick pig farm in 1980, his neighbours complained. His pigs produced 260 cubic feet of liquid manure each day, which, channelled into a manure lagoon for storage and decomposition, created an unbearable stench. The community, a judge later said, was “in a state of siege by smell.”(75) Children could not play outdoors; families could not barbecue, air their laundry, or even leave their windows open. Some complained of nausea, others of sleeplessness and stress.

The community battled the pig farm on many fronts. Residents complained to the village council and to three provincial departments, with no avail. They even organized a protest parade. Finally, 25 neighbours went to court, seeking damages and an injunction.

Mr. Justice Stevenson, who heard the case at the trial division, found that the pig farm’s offensive odours constituted an intolerable nuisance: they interfered with the plaintiffs’ reasonable enjoyment of their properties. He awarded damages totalling $30,500. The judge did not grant an injunction, explaining that he could not enjoin something that didn’t exist. Since a 1984 fire had destroyed Sullivan’s barn and 1214 animals, and since the manure lagoon had been pumped out and covered a year later, the nuisance had ceased. The judge noted, however, that had the nuisance continued, he would have had no alternative but to issue an injunction. And if the operations were to resume (as was threatened by the presence of a new barn and lagoon on the property) they could face an injunction in a new lawsuit. Thirteen months later, the Court of Appeal upheld Mr. Justice Stevenson’s decision.

In his defence, Mr. Sullivan argued that he had complied with the requirements of the provincial departments of health, agriculture, and environment. Mr. Justice Stevenson rejected the argument. “Compliance with rules and regulations contained in or authorized by legislation,” he explained, “does not relieve one from the common law rule that he must conduct his activities in such a way as not to create a nuisance.”(76) Justice of Appeal Hoyt agreed. He explained that provincial certificates of compliance “demonstrate Mr. Sullivan’s good intentions in attempting to construct a piggery in accordance with approved practices. The evidence discloses that Mr. Sullivan sought and usually followed the advice of officials in the Departments of Agriculture and Environment. But, of course, he could not, at least in 1980, obtain a licence to create a nuisance.”(77)

1990: 340909 Ontario Ltd. v. Huron Steel Products(78)

Noise and vibrations, even those in mixed-use or industrial neighbourhoods, may constitute nuisances.

Soon after Huron Steel Products installed a new 800-tonne press at its Windsor, Ontario, stamping plant in 1979, Douglas Kenney complained to both the company and the Ministry of the Environment. As president of a corporation called 340909 Ontario Ltd., which owned an apartment building near the plant, he was concerned that the noise and vibrations resulting from the press’s operation were causing his tenants to leave and making it difficult to rent apartments, thus reducing his rental income and the value of his building.

But Mr. Kenney could not get the government to enforce its noise regulations. Although tests conducted by the Ministry of the Environment indicated that the press exceeded provincial noise guidelines, and despite assurances from Huron Steel that it would improve the situation, the plant continued its noisy operations. Frustrated by the lack of progress, Mr. Kenney’s company launched a nuisance case in which it sought damages and an injunction.

At the trial before the High Court of Justice in 1990, several former and current residents of the neighbourhood testified that the press’s noise made falling asleep difficult, and that its vibrations shook furniture, disturbed pictures, and rattled glasses in their cupboards. This testimony, along with that of expert witnesses who described the degree to which the plant exceeded provincial noise guidelines, convinced Mr. Justice Potts that the press’s noise and vibration were excessive.

The judge determined that the Environmental Protection Act required the press to have a certificate of approval from the Ministry of the Environment. “I do not know why this process was not strictly adhered to by the Ministry for the #1 press,” he mused. “Possibly the Ministry was trying to persuade rather than compel Huron Steel and other existing industries to comply with the guideline levels.”(79)

The court acted where the government would not. Mr. Justice Potts found that Huron Steel’s operations unreasonably interfered with its neighbour’s use and enjoyment of its property, thus constituting a nuisance. He awarded $71,427 damages for lost rental revenue and reduction in the value of the apartment building. He also ordered that if Huron Steel failed to complete remedial work within four and a half months, it would be prohibited from operating its press.

Mr. Justice Potts’s decision included a discussion of three issues put forward by Huron Steel in its defence: reasonable use, the character of the neighbourhood, and the public good. The steel company had argued that its operations were reasonable in that particular neighbourhood. The judge responded that the presence of other industrial activity in the mixed-use neighbourhood could not justify the nuisance, which would offend the typical resident: “‘Unreasonableness’ in nuisance law is when the interference in question would not be tolerated by the ordinary occupier.”(80) The judge cited Fleming’s The Law of Torts: “Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort of the time and place. . . . It is not enough to ask: Is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, Is he using it reasonably, having regard to the fact that he has a neighbour?”(81)

The judge noted that activities in even industrial neighbourhoods can constitute nuisances. Rushmer v. Polsue & Alfieri Ltd., for example, “stands for the proposition that the addition of a fresh noise may give rise to a nuisance no matter what the character of the locale.”(82) And in Oakley v. Webb it had been determined, “There is a local standard applicable in each particular district, but, though the local standard may be higher in some districts than in others, yet the question in each case ultimately reduces itself to the fact of nuisance or no nuisance, having regard to all the surrounding circumstances.”(83)

In discussing the question of the public good, Mr. Justice Potts noted that the Huron Steel plant employed 200 people, whose jobs could be imperilled by any requirement for extensive structural changes to reduce noise. While acknowledging that “[t]he importance of the defendant’s enterprise and its value to the community is a factor in determining if the defendant’s conduct is unreasonable,” the judge observed that “this tends to go to the leniency of the remedy, rather than liability itself.”(84)

Notes

1. Walter v. Selfe (1851), 29 L.J.R. (20 N.S.) 433 (Ch.).

2. Ibid. at 434.

3. Ibid. at 435.

4. Ibid. at 435.

5. Ibid. at 436.

6. The Attorney-General v. The Council of the Borough of Birmingham (1858), 4 K. &. J. 528, 70 E.R. 220.

7. Ibid. at 223.

8. Ibid. at 224.

9. Ibid. at 225.

10. Ibid. at 226.

11. Ibid. at 226.

12. The Directors, &c., of the Imperial Gas Light and Coke Company v. Samuel Broadbent (1859), 7 H.L.C. 600, 11 E.R. 239.

13. Ibid. at 244.

14. Ibid. at 243.

15. Ibid. at 244.

16. The Directors, etc. of the St. Helen’s Smelting Co. v. William Tipping (1865), 11 H.L.C. 642, 11 E.R. 1483.

17. Ibid. at 1485, citing Hole v. Barlow (1858), 4 C. B. (N.S.) 334.

18. Ibid. at 1486.

19. Ibid. at 1487-8.

20. Dent v. Auction Mart Company; Pilgrim v. The Same; Mercers’ Company v. The Same (1866), L.R. 2 Eq. 238.

21. Ibid. at 240.

22. Ibid. at 255.

23. Ibid. at 250, citing Yates v. Jack (1866), L.R. 1 Ch. 295.

24. Ibid. at 249.

25. Ibid. at 247.

26. Ibid. at 246.

27. Smith v. Smith (1875), L.R. 20 Eq. 500.

28. Ibid. at 505.

29. Ibid. at 504.

30. Shelfer v. City of London Electric Lighting Company and Meux’s Brewery Company v. City of London Electric Lighting Company, [1895] 1 Ch. 287.

31. Ibid. at 294.

32. Ibid. at 315.

33. Ibid. at 316.

34. Ibid. at 311.

35. Ibid. at 315-6.

36. Ibid. at 322.

37. Ibid. at 322-3.

38. Ibid. at 295-6.

39. William Drysdale v. C.A. Dugas (1896), 26 S.C.R. 20.

Although this case originated in Quebec, the Chief Justice of the Supreme Court of Canada cited another justice’s observation that “the English and French law on the subject of nuisance are exactly alike” (at 23).

40. Ibid. at 25, citing Broder v. Saillard (1876), 2 Ch.D. 692.

41. Ibid. at 26, citing Bamford v. Turnley (1860), 3 B. &. S. 62, 122 E.R. 25.

42. Ibid. at 23-4.

43. Ibid. at 24.

44. Ibid. at 23.

45. Ibid. at 25.

46. Hopkin v. Hamilton Electric Light and Cataract Power Co. (1901), 2 O.L.R. 240.

47. Ibid. at 244.

48. Beamish v. Glenn (1916), 36 O.L.R. 10.

49. Ibid. at 14, citing Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 533.

50. Ibid. at 13, 18.

51. Ibid. at 17.

52. Ibid. at 14, citing Attorney-General v. Cole & Son, [1901] 1 Ch. 205 at 206.

53. Ibid. at 16.

54. Walker v. McKinnon Industries Ltd., [1949] 4 D.L.R. 739 (Ont. H.C.), aff’d [1950] 3 D.L.R. 159 (Ont. C.A.), aff’d [1951] 3 D.L.R. 577 (P.C.).

55. Ibid. at 763.

56. Ibid. at 764; quote cited by Lord Halsbury in Fleming v. Hislop (1886), 11 App. Cas. 686.

57. Ibid. at 765-6, citing James, L. J., who was commenting on Sir George Jessel, M.R. in Salvin v. North Brancepeth Coal Co. (1874), L.R. 9 Ch. 705.

58. Ibid. at 767.

59. Ibid. at 769.

60. Ibid. at 765, referring to Bamford v. Turnley, op. cit.

61. Russell Transport Ltd. et al. v. Ontario Malleable Iron Co. Ltd., [1952] O.R. 621 (H.C).

62. Ibid. at 734.

63. Ibid. at 728, citing Salmond on Torts, 10th ed., pp. 228-31.

64. Ibid. at 729, citing Fleming v. Hislop, op. cit.

65. Ibid. at 728.

66. Ibid. at 729, citing Sturges v. Bridgman (1879), 11 Ch.D. 852 at 865.

67. Ibid. at 731.

68. Newman et al. v. Conair Aviation Ltd. et al. (1972), 33 D.L.R. (3d) 474 (B.C.S.C.).

69. Ibid. at 477.

70. Schenck et al. v. Her Majesty the Queen in Right of Ontario; Rokeby v. Her Majesty the Queen in Right of Ontario (1981), 11 C.E.L.R. 1 (Ont. H.C.J.).

71. Ibid. at 8-9.

72. Ibid. at 11.

73. Ibid. at 11, citing Allen v. Gulf Oil Refining Ltd, [1981] 1 All E.R. 353 (H.L.).

74. Desrosiers et al. v. Sullivan and Sullivan Farms Ltd. (1986), 66 N.B.R. (2d) 243 (Q.B.). Sullivan and Sullivan Farms Ltd. v. Desrosiers et al. (1987), 76 N.B.R. (2d) 271 (C.A.).

75. Ibid. at 246.

76. Ibid. at 249.

77. Ibid. at 274-5.

78. 340909 Ontario Ltd. v. Huron Steel Products (Windsor) Inc. and Huron Steel Products (1990), 73 O.R. (2d) 641 (H.C.J.), aff’d (1992), 10 O.R. (3d) 95.

79. Ibid. at 648.

80. Ibid. at 645.

81. Ibid. at 644.

82. Ibid. at 654.

83. Ibid. at 644.

84. Ibid. at 655.

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