Still An Expensive Dock

November 13, 2020 Paul Emile Trudelle Litigation Tags: , , 0 Comments

On May 31, 2019, I blogged on the decision of Justice Morgan in Krieser v. Garber, [2019] O.J. 1619. There, the court found that a dock constructed by the Garbers (at a cost of $150,000) was improperly positioned, and posed a nuisance to the adjoining land owners, the Kriesers. The dock was ordered to be removed. The Garbers and the dock builder were also ordered, jointly and severally, to pay $100,000 in punitive damages, and $518,000 in legal costs, and the Garbers were ordered to pay further legal costs of $80,000.

The story does not end there. The Garbers and the dock builder appealed. In a decision released on November 5, 2020, the Ontario Court of Appeal allowed the appeal in part. The Court of Appeal upheld the finding of nuisance and the order to remove the dock. However, it struck the award of punitive damages against the dock builder. Further, it reduced the cost liability of the dock builder to $108,000.

With respect to punitive damages as against the dock builder, the Court of Appeal found that it was incorrect to treat the Garbers and the dock builder “as one” for the purposes of assessing punitive damages. Where there are multiple defendants, the court must consider the misconduct of each of the defendants separately. Punitive damages were appropriate as against the Garbers, as the protracted nature of the interference and their failure to accept a reasonable offer were significant factors. However, these did not apply to the dock builder. The dock builder had no power to move the dock, or to accept the offer to settle. Accordingly, the dock builder’s acts were “not so outrageous that punitive damages were rationally required to punish, deter or denounce it.” In addition, the dock builder was already punished by a criminal court, where a fine was imposed ($4,500), and by the judge’s order that the dock be relocated at the dock builder’s expense.

In reducing the dock builder’s cost liability, the court noted that the dock builder had limited ability to settle the claim. It could not relocate the dock without the Garbers’ approval. “It is unclear to me how [the dock builder] could have brought the action to an end prior to trial without Garber’s agreement.”

Thanks for reading. Have a great weekend.

Paul Trudelle

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