Air-Borne Dust, Nuisance And Lost Productivity Damages: The Ontario Court Of Appeal Finds Its Answer 'Blowin’ In The Wind'

The facts underlying a recent ruling, TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, read like a law school exam question — i.e., when the business carried on by a manufacturer of delicate lighting fixtures is disrupted by air-borne dust caused by the activities of its neighbour, a trucking company, is the lighting company permitted to sue in either nuisance or trespass? Is the lighting company's particular sensitivity to dust relevant in assessing whether or not there has been "unreasonable interference" with its use of its lands? What is the proper scope of damages recoverable by the lighting manufacturer, and does it include damages for lost productivity?

The trial judge ruled that actionable nuisance had been committed and awarded generous damages to reflect, inter alia, the plaintiff's lost productivity. The Court of...