



COURT OF APPEAL FOR ONTARIO

CITATION: Boodhoo v. Manuel, 2018 ONCA 603

DATE: 20180628

DOCKET: C64184

Simmons, Huscroft and Miller JJ.A.

BETWEEN

Alana Boodhoo and Janet
    Boodhoo

Plaintiffs/Appellants

and

Marivic
    Manuel, Albert Manuel and

Fernando
    Padilla

Defendants/Respondents

Stephen Dyment, for the appellants

Jarvis Ortega, for the defendants

Heard and released orally: June 22, 2018

On appeal from the
    judgment of Justice Laura Bird of the Superior Court of Justice, dated July 17,
    2017.

REASONS FOR DECISION

[1]

The trial judge dismissed the Boodhoos claims against their neighbours,
    the Manuels, arising from the Manuels installation of a furnace and a hot
    water heater with venting on the side of the Manuels house. Among other things,
    the Boodhoos claimed that emissions from the side venting are: (1) obnoxious;
    (2) created fumes and vapours that caused one of the Boodhoos to feel ill; (3)
    caused an ice buildup on their walkway; and (4) had the potential to cause a
    future danger to the siding of their house.

[2]

The proceeding was commenced by application but converted by order to an
    action. Prior to the delivery of the Statement of Claim, the Manuels moved the
    venting to the back of their house.

[3]

The trial judge analyzed the Boodhoos claims as a claim in nuisance.
    She found that the Boodhoos complaints did not rise to the level of being a
    substantial interference with the Boodhoos enjoyment of their property. In
    particular, she found that: (1) the Boodhoos expert had not conducted any
    testing concerning carbon dioxide and other gas emissions; (2) the claims of
    feeling ill, were bald and not supported by medical evidence; (3) any ice
    buildup was not significant; and (4) the claims about future damage to the
    exterior of the house were speculative. She dismissed the action.

[4]

The Boodhoos do not appeal the dismissal of their claim for damages.
    Rather, they appeal from the dismissal of their claim for a mandatory order
    requiring the Manuels to move the venting to the top of their house.

[5]

We see no merit in this appeal. To the extent that the legal basis for
    the appellants claim rested in nuisance, the trial judge made no errors in law
    or palpable and overriding errors of fact in assessing their claim. Absent a
    finding of nuisance, the appellants failed to demonstrate any legal basis for
    issuing a mandatory order. On our reading of the trial judges reasons, the
    issues in the order directing the trial of an action were subsumed within her reasoning
    and finding that nuisance was not established.

[6]

The appeal is dismissed.

[7]

Costs of the appeal are to the respondents, on a partial indemnity scale
    fixed in the amount of $5,000, inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

Grant Huscroft J.A.

B.W. Miller J.A.


