What Is the Basis For Determining Compensation In a Tortious Nuisance Case?
Compensation of Various Types May Be Awarded In a Tortious Nuisance Case. Actual or Special Damages May Be Awarded For Expenses Incurred. General Damages May Be Awarded For Loss of Use or Enjoyment of Property As Well As For Any Distress Caused. Punitive Damages May Also Apply For Intentional Conduct That Was Especially Egregious.
Understanding the Basis For Claiming Damages Within Tortious Nuisance Cases
As was explained earlier, the tort of nuisance may arise in a wide variety of ways as nuisance law is very flexible and may be applied to many circumstances. As interesting as the law is in respect of what constitutes as tortious nuisance, the basis for determining damages, meaning the amount of financial compensation that is deserved when tortious nuisance occurs, can also be quite broad.
Types of Damages to Claim
When a substantial and unreasonable interference in the use or enjoyment of property occurs, the expenses incurred to protect against, or otherwise to minimize, the interference may be claimed. These expenses actually incurred to remedy or mitigate the interference appear as commonly awarded within nuisance litigation. In the case of Yates v. Fedirchuk, 2011 ONSC 5549 the expense to install barriers was suggested as a reasonable remedy for the nuisance caused by intruding tree roots. In tortious nuisance cases involving harassment by neighbours, the expense incurred to secure peace of mind were compensable. These peace of mind expenses included, among other things, surveillance camera equipment in the matter of Rathmann v. Rudka, 2001 CarswellOnt 1206, as well as the expense to install fencing within the case of Saelman v. Hill, 2004 CanLII 9176 wherein such cases it was said:
 The plaintiff has already paid approximately $3,500.00 for repairs and incurred more than $5,000.00 to investigate and determine the cause of the damage to her pool. Its value has likely been significantly reduced by the damages sustained to date.
 More importantly, she has been advised that if the continuing incursion of roots from the defendant’s trees is not prevented further damages will probably result, including the requirement to replace the pool at a cost in the neighbourhood of $30,000.00.
 The plaintiff has the option of installing a root barrier. This would permanently prevent root damage caused by the defendant’s trees. The expense is significant, however, estimated in the neighbourhood of $20,000.00 or more, the costs include hoisting in equipment by crane, removing and replanting hedges, and re-landscaping when the job is completed.
 In comparison, the cost required to remove the two black locusts is estimated to be in the neighbourhood of $1,400.00. Even attributing monetary value to the aesthetic and other qualities of the trees, they do not approach the $20-$30,000.00 damages that would be incurred by the plaintiff if the trees are not removed.
 However, this issue is not as straightforward as it appears when dealing with a nuisance that arises from a pre-existing natural source that only becomes a nuisance because of the new use that the plaintiff has made of her property by constructing a swimming pool on it.
39 The plaintiff's also incurred out-of-pocket expenses. The court accepts the following:
1. costs of call screening at $3.00 per month from July 1997 (42 months)
2. cost of deductible on motor vehicle insurance policy
3. cost of repair fence/gate
4. cost of legal fees to defend peace bond application (dismissed)
5. cost of surveillance camera
 I award the plaintiff Mr. Wuerch the sum of $6,000 for the interference with the enjoyment of his home and surrounding property and the sum of $7,500 for that portion of his increased pain and mental distress attributable to the defendants’ conduct. I award the plaintiff Mr. Saelman the sum of $6,000 for interference with the enjoyment of his property and the sum of $5,000 for his mental distress. I also award Mr. Saelman special damages in the sum of $2,968. This represents the amount which I accept that he spent on constructing the wooden privacy fence between the properties in November of 1999. I accept his evidence that his principal reason for building the fence was to shield he and Mr. Wuerch from the defendants’ offensive conduct and that the fence would not otherwise have been erected. In addition, I award Mr. Saelman $178.00 for his medication expenses. Mr. Wuerch’s medication expenses, in my view, would likely have been incurred as a result of his pre-existing medical condition and I therefore decline to make an award in that respect. In my view, the conduct of the defendants is not sufficiently serious to justify an award of punitive damages.
As shown by the above cases, among others, reasonable out-of-pocket expenses incurred in an effort to mitigate or abate the harm suffered due to a nuisance is, generally, awarded by the courts.
As per the case of Johnson v. Cline, 2017 ONSC 3916, it appears that in the assessment of general damage awards, the court should consider firstly a sum intended to compensate for the interference with reasonable enjoyment and then a separate sum for any mental distress caused. Additionally, as stated in Fitzpatrick v. Orwin, 2012 ONSC 3492 it was particularly noted that assesssment of damages involving nuisance by harassment resulting in the interference with enjoyment of residence deserve a premium. Furthermore, whereas general damages are difficult to assess, per the case of Gordner v. 2384898 Ontario Limited, 2017 CanLII 9631 such damages are usually determined as an at-large award using best guess work.
 For the foregoing reasons, I award Susan Elizabeth Johnson $15,000 for the interference with and enjoyment of her home and $3,000 for the mental distress caused thereby. I award Christopher St. Clair Johnson the sum of $15,000 for the interference with and the loss of enjoyment of his home and the sum of $1,500 for the portion of his mental distress attributable to the conduct of Mr. Cline.
 Unlike the factual context Prinzo, supra, the infliction of mental distress here occurred in the Squires' home, and not in a workplace. One’s home is supposed to inspire feelings of comfort and safety, not fear and trepidation. In fact, the home is commonly thought of as a retreat from the harsher business climate and work environment canvassed in Prinzo. As such, the infliction of mental distress in the context of the home is particularly harmful. On this basis alone, the award in the current case should exceed that granted in Prinzo.
 In Wu v Peel Condminium Corporation No. 245, 2015 ONSC 2801 (CanLII), Lemon J. dealt with an assessment of damages in a claim classified as “oppression” against her. Like Gordner she also established that a balancing of her interests against those of the defendant weighed strongly in Wu’s favour. Like this action, too, she did not prove financial losses. Lemon J., awarded damages of $30,000 for conduct by the Condominium that was “impressive and unfair” to Wu for approximately 5 years. At para. 175, Lemon J., quotes from the decision of the Ontario Court of Appeal in TMS Lighting Limited v KJS Transport Inc., 2014 ONCA 1 (CanLII) at para 61:
… A trial judge is entitled to do his or her best to assess the damages suffered by a plaintiff on the available evidence even where difficulties in the quantification of damages render a precise mathematical calculation of the plaintiffs loss uncertain or impossible. Mathematical exactitude in the calculation of damages is neither necessary nor realistic in many cases….
… The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no grounds for refusing substantial damages even to the point of resorting to guesswork….
In the cases of intentional annoyance cases involving harassment by neighbours where causing distress was intended and is therefore reasonably expected, general damages may be available without medical expert evidence and without a need to establish a psychiatric condition. Such was stated in the Johnson case as well as the Rathmann case wherein each it was said:
 In my opinion, the actions of Mr. Cline, for the most part not illegal, nevertheless caused harm and interference with the Johnsons’ use of their property to an extent that it is unreasonable and actionable, and has been of such degree and persistence that the Johnsons cannot be expected to simply tolerate it. They are entitled to compensation. In my opinion this case differs from that of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 where the court, at paragraph 9, observed that “minor and transient upsets do not constitute personal injury, and hence do not amount to damage.” The plight of the Johnsons was neither minor nor transient. As recently held by the Supreme Court of Canada in Saadati v. Moorhead 2017 SCC 28, in claims for damages for mental distress, expert evidence is not required, nor must it be established that the distress rises to the level of a diagnosed psychiatric condition.
34 The defendant's conduct was unbelievable and outrageous. Both Ms. Rothmann and Mr. Mark testified how Ms. Rudka's conduct worried and upset them to the point that they were wary of going outside concerned about what they might find or what might happen. They were concerned that further damage may have been caused to their property or their vehicles. They were concerned about the safety of their dogs. Stress developed in their relationship. No medical evidence was called to corroborate the claimed psychological effects of the defendant's misconduct on them. Such evidence was not necessary.
As per Gordner, where the conduct of complained of continues after the defendant becomes aware of the interference or disturbance to the plaintiff and the defendant is without efforts to remedy, aggravated damages may be deserved As was specifically said in Gordner:
 To address the claim for aggravated damages, I rely upon the decision of the Ontario Court of Appeal in McIntyre v Grigg, 2006 CanLII 37326. The court dealt with a huge jury award of damages witch included a separate award of $100,000 for Aggravated damages plus Punitive Damages of $100,000. On appeal, the court considered both of these latter two damage awards. Dealing with aggravated damages the court said at para. 50:
Aggravated damages are awarded when the reprehensible or outrageous nature of the defendants conduct causes a loss of dignity, humiliation, additional psychological injury, or harm to plaintiffs feelings… Aggravated damages are not awarded in addition to general damages, but the general damages are to be assessed “taking into account any aggravating features of the case and to that extent increasing the amount awarded“.
The evidence of the plaintiff and other resident witnesses from RWT satisfies the test just enunciated. I consider the defendant’s long term disregard of the comfort of its neighbours to be outrageous. The defendant received many, many complaints I have detailed above yet it failed or simply refused to contain the Harm for four years and more. Mr. Komsa sought no professional advice – he just searched on the internet and made an obviously uninformed decision about the type of insulation required. It might be said, as well, that the Report of Dr. Novak delivered in 2015 long before trial provided an opportunity for Lev3l to take proper steps to insulate to attenuate the Boom Boom Boom. Again, Lev3l failed to take any positive steps and the Harm continues as I write these Reasons. I assess aggravated damages at $10,000 which I will include as part of the damages award for the Nuisance.
Per the Fitzpatrick case, which involved intentional conduct deemed reprehensible intimidation that went as far as the placing of a dead coyote upon a vehicle and the issuance of threats and insults, punitive damages were awarded with the reasoning for doing so very well articulated within the court decision. However, despite the apparent wrongfulness of the conduct, a court must review whether the punitive effect of punitive damages is necessary or whether the level of compensation already deemed due will be provide a sufficient punitive effect to deter similar conduct. Additionally, the punitive effect of other proceedings, such as by a criminal charge, is also considered. This requirement to review the necessity of whether punitive damages are required for a punitive effect was explained in Walsh v. Raymond, 2016 CanLII 32825. Specifically, the Fitzpatrick case and the Walsh case state:
Punitive damages may be awarded for trespass where the defendant's conduct is described as arrogant, callous, oppressive, arbitrary, fraudulent, high-handed, malicious, calculated, or some other similar term. They are reserved for situations where the defendant has shown a wanton disregard for the plaintiff's rights as property owner. (See examples in Remedies in Tort, supra, chapter 23, paras. 46-47.)
In Pyper, no punitive damages were awarded since the trespass involved the misplacement of fallen stones onto a neighbour’s fence.
 Unlike the facts in Pyper, supra, the actions taken by Mr. Fitzpatrick in the current case are exceptional, and warrant an award of punitive damages. He waged a reprehensible campaign of worry and intimidation against his elderly neighbours. Placing a dead coyote on a neighbour’s vehicle is completely removed from the ordinary standard of decent, and neighbourly, behaviour. Such actions, alongside threatening Mr. O’Carroll and hurling insults at the Squires, must be explicitly denunciated.
 Damages were awarded for neighbourly misconduct in Desjardins v. Blick,  O.J. No. 1234 (S.C.), where Kane J. granted $5,000 in punitive damages, at para. 31. In Desjardins, the defendant neighbours mistakenly believed that their property had been encroached upon by their neighbour’s garage. In response, they deliberately removed lateral support for this structure, causing damage. This behaviour escalated to taunts, fights, and the imbedding of devices to cause personal injury. Such belligerent behaviour is reminiscent of Mr. Fitzpatrick’s threatening and distasteful actions.
 As well, in Cantera, supra at para. 65, Harvison-Young J. awarded $5,000 in punitive damages for a trespass case. She found that the defendants had acted knowingly, deliberately and wilfully when tearing down a fence that they had been advised was not on their property. This conduct was accepted as high-handed and arrogant enough to justify a punitive damages award.
 In Desjardins, supra, the neighbours believed that they were the victims of an encroachment on their property. This belief was unfounded, however it stands in stark contrast to Mr. Fitzpatrick’s explicit knowledge that he was trespassing onto the property of the Squires when he removed the survey markers and when he caused the video camera to be detached and the dead coyote to be placed on the truck. In Cantera, the defendants chose to remove the fence when the plaintiffs were away from home. In contrast. Mr. Fitzpatrick took advantage of the opportunities he had to encounter the Squires in person, so that he could insult them. He also waited for Mr. Squires to emerge from his house so that he could relish in the shock and fear of seeing Mr. Squires discover the carcass. For these distinguishing reasons, I find that Mr. Fitzpatrick’s conduct was considerably more egregious than in Desjardins and Cantera. I therefore award punitive damages of $20,000 against him. This sum shall be payable to the Squires jointly.
The Defendant did not act as a good neighbour. I find that his conduct demonstrated a lack of common courtesy, was careless, and that he failed to meet the standard of care of a reasonable person. Had criminal charges not been laid, I would have no difficulty whatsoever in awarding damages. But, is this a case deserving of punitive damages? The answer is no.
A factor of significance importance to me in assessing whether it would be appropriate to award punitive damages is the fact that punishment has already been imposed in a separate proceeding for the same misconduct. As stated in McIntyre v. Grigg at paragraph 79, where a wrongdoer has already been punished for an offence and the same conduct is in question at a civil trial, punitive damages will generally not serve a rational purpose as the sentence imposed in the criminal environment will already have met the necessary objectives of retribution, deterrence, and denunciation. The Court of Appeal in McIntyre held that “there are sound policy reasons for generally not attempting to retry the proceedings in a civil action.”
The Plaintiff has been adequately compensated. The hydro line was essentially 25 to 30 years old when damaged by the Defendant. The Plaintiff received full indemnity for the repair and replacement of the severed hydro line without any reduction for betterment. The Defendant cooperated with the police and his matter was appropriately dealt with by Mr. Justice Gee of the Ontario Court of Justice. I am satisfied this will serve as an adequate penalty and deterrence in this case.
Interestingly, the law sends mixed messages regarding the duty to mitigate in a nuisance matter. Per the case of Yates, where tree roots were viewed as a nuisance, the court suggested that a duty to mitigate may exist; however, per the case of Suzuki v. Munroe, 2009 BCSC 1403, involving noise from an air-conditioning unit, the court suggested that those affected by a nuisance are without a need to take take self-defensive efforts to accommodate or lessen the affect of the nuisance.
 Based on the foregoing, I conclude that, to sustain a cause of action in nuisance caused by encroaching roots from a neighbour’s tree, a plaintiff must resort to self-help in the first instance or establish that self-help failed or was not reasonably practical.
 When the damage arises as a result of a change in use of the plaintiff’s property, the plaintiff must further establish that there were no practicable self-help remedies at the time of change in use, or, alternatively, that the nuisance was not reasonably foreseeable by her or her agents as a consequence of the change in use of her property.
 Whether a self-help remedy is practical will be determined by its effectiveness, cost of implementation, and, if applicable, indexed by the cost of living and other considerations relevant to whether adopting the self-help remedy would have been reasonable in all the circumstances.
 When the damage arises as a result of a change in use of the plaintiff’s property, the cost of implementing the preventive self-help remedy indexed by the cost of living will be the measure of the severity of the damage for the purpose of determining whether a nuisance is established.
 If the self-help remedy was foreseeable, but not practicable because of cost, and a nuisance is otherwise established, as an alternative to an injunction removing the trees, a defendant will be required to pay damages based upon the indexed cost of the self-help remedy at the time of change of use of the plaintiff’s property unless advised of the problem at that time.
 One of the factors to be considered in deciding whether a nuisance exists is the social utility of the activity complained of. Here, the air conditioning was installed by the Munroes in order to enhance the comfort of their own home. Their enhanced comfort should not come at the expense of significantly reduced comfort for their neighbours. Nor should the Suzukis be required to close up their windows and acquire an air conditioner in what might be considered self-defence.
The topic of tortious nuisance is a very deep legal subject with many subtopics that can only be lightly touched upon within a webpage article. Legal practitioners and scholars could spend hours discussing the various twists and turns that apply to the principles and concepts mentioned here.