The “Dock” Dispute

Neighbours of waterfront properties on Lake Simcoe  fought for years over a dock.

Finally, the Ontario Court of Appeal ordered the removal of a dock, punitive damages of $100,000, and a costs award totalling $598,000: in Krieser v. Garber2020 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 Ontario’s Ministry of Natural Resources and Forestry.

The permit, required the Garbers’ dock to have been built:

  1. at least 20 feet from, and
  2. 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 outlined in the application.

The dock was completed at a cost of $150,000, but there were a couple of shortfalls:

  1. it angled towards the Kriesers’ property, coming within three feet of the projected property line.
  2. a shield of large, submerged boulders extended five feet across the projected property line, surrounding the Garber dock to protect it from winter ice.

Naturally, neither of those items were covered in the plans!

The submerged boulders prevented the Kriesers from operating 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 then docked their boat at a marina.

The Kriesers complained about dock to the Ministry of Natural Resources. In April 2014, the contractor pleaded guilty to the provincial offence of engaging in construction contrary to the permit, and paid a fine of$4,500.

The Kriesers sued claiming the dock constituted a civil nuisance and sought a mandatory order requiring its removal.

In 2018, Justice E.M. Morgan ruled that the Garbers’ dock constituted a nuisance and ordered its removal. Ms. Krieser was awarded punitive damages in the amount of $100,000, costs for the action of $518,000 against the Garbers and the contractor jointly, and a further $80,000 in costs solely against the Garbers.

In November 2020, the Ontario Court of Appeal found dismissed the Garbers’ appeal.

The Court of Appeal stated that the Garbers’ dock deprived the Kriesers of an important amenity going to the use and enjoyment of their property. The dock impeded access and amounted to “a physical invasion” of the Kriesers’ property.

The harm to the Kriesers was the interference with their ability to use their boat, either by the shield of boulders or the dock.

The Court of Appeal upheld punitive damages of $100,000 and agreed that was an appropriate and proportionate amount to punish and denounce what the Garbers had done, and to deter similar conduct.

Court of Appeal upheld the costs awarded against the Garbers of $518,000 for trial on a substantial indemnity basis and $80,000 due to an adjournment requested by them.

  • Expensive dock:
  • $150,000.00 to build
  • $100,000.00 punitive damages
  • $518,000.00 in costs
  • $80,000.00 for an adjournment
  • $100,000.00 for the estimated costs of demolition
  • $948,000.00 the total costs paid out

Round that up to over one million which would be the money that the grabers paid their own lawyer, plus lost interest on their money! This would likely be something in the $200,000.00 range.

So, a dock costing well in excess of a million dollars and it doesn’t even exist.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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