Dock Dispute Leads To Nuisance Claim And $598,000 Costs Award

• Published date: 11 November 2020
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Gardiner Roberts LLP
• Author: Mr James Cook

After years of litigation, a dispute between neighbours of waterfront properties on Lake Simcoe led to a mandatory order requiring the removal of a dock, punitive damages of $100,000, and a costs award totalling $598,000: Krieser v. Garber, 2020 ONCA 699.

The Kriesers owned a waterfront property on Lake Simcoe, along with a 33-foot boat which they parked on marine rails that required a direct approach some distance from the shore.

In 2012, their neighbours, the Garbers, hired a contractor to build a large dock pursuant to a permit issued by what is now Ontario's Ministry of Natural Resources and Forestry ('MNRF'). Under the permit, the Garbers' dock (which cost $150,000) was to have been built at least 20 feet from, and parallel to, the projection of the property line into the lake between the Garber and Krieser properties. The permit application included Kriesers' consent to the installation of the dock as depicted therein.

The dock was not built in the manner described in the application. Instead, it angled towards the Kriesers' property, coming within three feet of the projected property line. Further, a shield of large, submerged boulders extended five feet across the projected property line, surrounding the Garber dock to protect it from winter ice.

Because of the submerged boulders, the Kriesers could no longer drive their boat directly into the marine rails. Mr. Krieser tried to manoeuvre around the new obstacles but concluded that it was too dangerous to dock. The Kriesers had to dock their boat at a local marina.

The Kriesers complained of the erroneously constructed dock to the MNRF. In April 2014, the contractor pleaded guilty to the provincial offence of engaging in construction contrary to a permit granted under the Public Lands Act. The agreed statement of facts stated that the erroneous location of the dock was inadvertent. The contractor was fined $4,500.

Litigation ensued shortly thereafter. The Kriesers alleged that the dock constituted a civil nuisance and sought a mandatory order requiring its removal. Prior to trial, the Kriesers made what the trial judge would later call the most generous offer to settle he had ever seen, namely that they would pay for the entire cost of removing and rebuilding the dock in the location depicted in the approved permit application. Their offer was not accepted by the Garbers.

After a two-week trial in 2018, Justice E.M. Morgan ruled that the Garbers' dock constituted a nuisance and ordered its removal...