Smoke ruling possibly the first

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Smoke ruling possibly the first

Postby Wilberforce » Sat May 10, 2008 12:14 am

Smoke ruling possibly the first

Eric McGuinness
The Hamilton Spectator
FONTHILL (May 9, 2008)

David Deumo says smoke from a neighbour's wood stove was so bad even in the summer that he
and his wife, Brenda, an avid gardener, started camping to get away from the eye-irritating smell.

"It bothered us so much, we couldn't leave the windows open, we couldn't sleep. In August - we
had no air conditioning at the time - it was unbearable. It got to the point we couldn't enjoy our
yard, we couldn't enjoy our property at all."

The Deumos, who bought their Pelham Street home 21 years ago, say the problem started in 1999
when next-door neighbours Travers and Valerie Fitzpatrick installed a wood stove in a garage on
their property, a stove that blanketed surrounding yards with smoke.

They filed a suit against the Fitzpatricks in 2002 after finding sympathy, but little aid, at Pelham
town hall and the Environment Ministry.

After six years of litigation, in what is thought to be the first Canadian court ruling on the health
effects of wood smoke, a judge in Hamilton awarded the Deumos $80,000 in general damages,
$20,000 in punitive damages and $170,000 in legal costs.

The Deumos were represented by Lou Frapporti, of the Gowlings firm in Hamilton, who said
Wednesday: "I'm immensely relieved for my clients, who had their story heard and their position
vindicated. That no government agency would step in is shameful."

While he called the damages "staggering in the circumstances," Frapporti said, "It doesn't
capture the years of nuisance my clients endured or the years of litigation."

Ontario Superior Court Justice James Ramsay noted in his decision that Travers Fitzpatrick
continued to use the stove after receiving written complaints in September 2000, after the fire
department was called twice and after the town asked him to restrict burning to winter months.
He also found that Fitzpatrick burned at least twice as often as he testified he did.

"The consequences for the plaintiffs' normal enjoyment of the property and the potential health
risks were known to the defendants and were ignored by them. For the period in question (1999
to 2003 when a temporary injunction was issued), the plaintiffs were entirely unable to enjoy
their property other than using it simply for shelter.

"They could not go into the yard or leave their windows open unless the defendant did not happen
to be burning at the moment. Several of the trees on the plaintiff's property that were usually in
line with the smoke died. I conclude that the smoke killed them."

Ramsay said both the Deumos suffered physically and that their symptoms, "while not the most
serious, were certainly long-lasting and annoying and disconcerting."

The judge heard evidence from other neighbours, including nurse Cathy Robb who said she had
to take her grandchildren to play at school because they couldn't use her yard, and that she
blamed the smoke for her respiratory ailments, including a case of pneumonia.

"She had no desire to testify in this lawsuit and is fearful of the defendant," Ramsay said, adding
she had heard about an earlier incident when he deposited rock salt on the plaintiffs' property
and caused $6,500 damage.

Another witness testified the smoke sometimes smelled like a paper mill.

Describing photos taken of the smoke in 1999 and 2002, the judge said: "To me, it looks like
London fog. The photograph of the defendant's chimney resembles nothing so much as the stack
of a 19th-century coal-fired train engine."

Neither the Fitzpatricks nor their lawyer, Peter Mahoney, returned calls from The Spectator seeking
comment on the case.

Smoke ruling possibly the first
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