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Appleby v Erie Tobacco Co, (1910), 22 OLR 533 (Div Ct)

Facts:

D produces smell that many regard as offensive and even physically sickening, some regard as neutral or pleasant. They have done as much as they can to avoid producing the smell but it is a necessary result of their ongoing operation.

Issue(s):

What is a nuisance?

Ratio:

“What causes material discomfort and annoyance (not necessarily rising to the level of physical illness) for the ordinary purposes of life (i.e. according to a local standard) to a man’s house or to his property…”

Analysis:

(Fleming v Hislop) case of bricklayer’s smoke “What causes material discomfort and annoyance for the ordinary purposes of life to a man’s house or to his property, is to be restrained… although the evidence does not go to the length of proving that health is in danger.”
-“Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as inconvenience
-Local standard: People in town not entitled to air as clear as in the country (Colls v Home and Colonial Stores Limited)
--Although a person may still operate their machinery reasonably in a district designated largely for that purpose and yet still violate P’s right (Reinhardt v Montasti)
-It is clear here that the smells created material discomfort

Holding:

An injunction must follow.


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