Nuisance - Re: The Test

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Date Retrieved:	2024-11-12
CLNP Page ID:	110
Page Categories:	[Tort Law], [Nuisance]
Citation:	Nuisance - Re: The Test, CLNP 110, <https://rvt.link/55>, retrieved on 2024-11-12
Editor:	MKent
Last Updated:	2023/04/04

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Fiuza v Creekside Real Estate Group Inc., 2019 CanLII 45625 (ON SCSM)

[162] Private nuisance between neighbours is defined as an unreasonable interference with the reasonable use and enjoyment of one’s home. The test is an objective one - did the defendants use their property in a reasonable manner, with regard to the fact that they had neighbours? In determining nuisance, courts have consistently imposed a standard of good neighbourliness: Albiston v. Liu, 2013 CanLII 49799. The plaintiffs are required to show that the harm complained of is actionable and not transient: Gordner v. 2384898 Ontario Limited, (2017) CanLII 9631. The harm must be an undue and material interference with the use and enjoyment of the plaintiffs’ property.

[163] As stated by the Court of Appeal in Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2011 ONCA 419 (CanLII), nuisance involves a two part analysis. The annoyance or discomfort must be a substantial and unreasonable interference. If there is no actual interference, or if the interference is trifling, then there is no substantial interference. In this case, there was overwhelming evidence of no interference or at best, a trifling interference.

[164] Unreasonable interference is determined by considering the gravity of the harm caused and utility of the defendant’s conduct. This necessitates an analysis of four factors: (1) severity of the interference; (2) character of the neighbourhood; (3) utility of defendant’s conduct and (4) sensitivity of the plaintiff.

Cecchin v Lander, 2019 CanLII 131883 (ON SCSM)

86. As noted above, harassment is not a civil cause of action. The plaintiffs rely on the torts of nuisance and/or invasion of privacy. The latter cause of action was recognized in Jones v. Tsige (2012), 2012 ONCA 32 (CanLII), 108 O.R. (3d) 241 (C.A.). There is some overlap between the two causes in this case and hence they are addressed together in these reasons. The plaintiffs rely on three matters:

(i) Surveillance cameras pointed at their property;

(ii) Floodlights shining on their property;

(iii) Obstructive parking.

88. Private or common law nuisance consists of substantial and unreasonable interference with the claimant’s use or enjoyment of land: Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), 2013 SCC 13 (CanLII), [2013] 1 S.C.R. 594 (“Antrim”), at para. 18. A substantial interference is one that is not trivial: Antrim, at para. 19. Whether the interference is unreasonable may depend on a variety of case-specific factors but there is no checklist. Rather the overarching question is whether the interference is unreasonable taking the gravity of the harm balanced against the utility of the defendant’s conduct in all the circumstances: Antrim, at para. 26. In other words, the law asks whether it would be unreasonable to require the claimant to suffer the particular interference without compensation: Antrim, at para. 25.

89. Surveillance cameras and floodlights pointed onto residential neighbouring property can constitute the tort of nuisance: Lipiec v. Borsa, [1996] O.J. No. 3819 (Gen. Div.); Saelman v. Hill (2004), 20 R.P.R. (4th) 118 (Ont. S.C.J.); Suzuki v. Munroe (2009), 2009 BCSC 1403 (CanLII), 87 R.P.R. (4th) 68 (B.C.S.C.); Cline v. Drummond, [2017] O.J. No. 3342 (S.C.J.), affirmed [2019] O.J. No. 1639 (C.A.), leave to appeal denied [2019] S.C.C.A. No. 131.

90. Invasion of privacy and more particularly the tort of intrusion upon seclusion was recognized in Jones v. Tsige, supra. At para. 70 of the reasons of Sharpe J.A. the elements of the tort were formulated as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

91. A person’s residence represents a fundamentally important private and personal space. It is a home and a place of seclusion from the world at large. Having surveillance cameras and floodlights aimed at one’s residence is a clear and material intrusion into that space, particularly where, as I find in this case, this was done as part of a deliberate campaign of harassment. I conclude that the torts of invasion of privacy and nuisance are made out. The particular invasion would be highly offensive to a reasonable person; in the language of nuisance it would be unreasonable to require the plaintiffs to suffer the interference without compensation.

Goryn v. Huntington 1900 Bayview Inc., 2019 ONSC 2881 (CanLII)

[3] The plaintiff’s unit is in a condominium building that was constructed as Phase I of a 2-phase development. Before signing the APS, the plaintiff knew that there would be construction noise arising from the construction of a second condominium building directly adjacent to hers, called Phase II. However, in this action, the plaintiff claims that the actual construction took place not only in normal and permitted hours, which she expected and accepted, but also outside those hours and in contravention of the municipal noise by-law. The plaintiff alleges that there were numerous instances of construction noise outside the permitted time periods, causing disruption to her and her family. These allegations are contested. The building of Phase II is now complete.

[4] The plaintiff sued based on the tort of nuisance. The defendants include Huntington 1900 Bayview Inc. (the vendor), Deltera Inc. (the project manager that Huntington contracted with for the construction of Phase II) and Tridel Corporation (whose name appears on the APS).

[38] The defendants accept that courts “have struggled to come up with an exhaustive definition of the tort of nuisance”. The defendants rely on French v. Chrysler, 2014 ONSC 4573, aff’d, 2015 ONCA 104, in which the court discusses aspects of the law of nuisance and related authorities.

[39] The defendants’ case law shows that the tort is potentially available to those whose use and enjoyment of private land is being interfered with by the unreasonable use of another’s land: French v. Chrysler, at para. 20, citing Halsbury’s Laws of Canada – Torts (2012 Reissue). This is the essence of the plaintiff’s complaint.

[40] Liability will depend upon the defendant’s degree of control in fact or in law: French v. Chrysler, at para. 21, citing Salmond, The Law of Torts, 18th ed. 1981, at p. 48, cited with approval in Engemoen Holdings Ltd. v. 100 Mile House (Village), [1985] B.C.J. No. 267 (S.C.), at para. 28.

The Owners v. Grabarczyk, 2006 BCSC 1960 (CanLII)

[7] THE COURT: I will just carry on. What the petitioner is seeking is a declaration that the respondent has breached the petitioner's noise by-law, an order that respondent cease and desist from certain noisy behaviour in her suite and an order that she pay the petitioner $22,928.69 in fines that the strata corporation has imposed on her for breaches of the strata corporation's noise by-laws.

[8] The petitioner is a strata corporation known as the Palladain located at 1705 Nelson Street in the West End of Vancouver. It has 40 units housed in three buildings of four stories each. The three buildings are connected by walkways.

[29] Dealing with the first issue, did the respondent contravene the noise by-law? Having read through the material adduced by both the petitioner and the respondent and considered the arguments advanced by the petitioner and by the respondent through her outline of argument, I am satisfied on a balance of probabilities that the respondent has contravened the strata corporation's noise by-law by deliberately and repeatedly making loud noises highly disruptive to Ms. Sears' entitlement to enjoy her property with a reasonable threshold of peace and quiet.

[43] In my view, while given the persistence with which the respondent pursued her campaign of noise making, to treat it as continuing for the purposes of s. 135(3) relieving against the need for notice and the right to be heard in circumstances where the contraventions are the product of ongoing but discrete transactions would extend s. 135(3) beyond what it was designed to encompass and engage serial but not continuing conduct.

[44] I therefore conclude that the series of fines imposed on the respondent apart from those fines for conduct for which the respondent received particulars of the complaint in writing and a reasonable opportunity to answer the complaint including a hearing if required, are not applicable. I am satisfied that in connection with a $50 fine imposed in relation to a contravention on February 1, 2004, and $2,450 imposed for 49 occurrences in July, August and September 2004, adequate written notice and opportunity to be heard was given to the respondent in accordance with s. 135(1) and (2). The imposition of the other fines does not accord with the relevant sections.

[45] In the result, the fines owed by the respondent to the petitioner are reduced to the sum of $2,500.

[52] Now, the fines I have ordered paid in this case have been reduced to about $2,500 on the basis of the law. If the law required me to order that you pay the full amount of $22,000 I would do that. My view of the law is that all you can be ordered to pay at this juncture is $2,500, not $22,000.

Gordner v 2384898 Ontario Limited, 2017 CanLII 9631 (ON SCSM)

[3] Mr. Gordner and 5 of his witnesses reside in a 26 story apartment building located at 380 Pelissier St, Windsor, known as the Royal Windsor Terrace [RWT]. Constructed in 1972, the building has 148 condominium units with amenities enjoyed by the tenants including a swimming pool, exercise rooms, library, party room and the like. It is located in downtown Windsor a block East of the main street, Ouellette Ave. The RWT faces Pelissier Street on the Southwest corner of its intersection with Park Street.

[4] RWT is one of only two buildings in this block on the north side of Park; 375 Ouellette, the defendants building, is the other. Between RWT and the defendant’s building is a 20 to 30 ft. laneway used by city garbage trucks, delivery vehicles and the like.

[5] The defendant’s building is two stories high with a flat roof. It occupies the east half of the same block as RWT. Access to the City Grill is off Ouellette; access to Lev3l is off Park.

[6] RWT, though generally rectangular, on its south side has a regular saw-tooth shaped divided into four equal sections. Each section is set back further from the curb as you walk east to Ouellette from Pelllisier. Photographs entered as Exhibit 19 clearly display what I have attempted to describe. I marked an “X” on photograph 19 (d) to indicate the two balconies of Gordner’s apartment.

[7] The plaintiff’s several witnesses all reside in RWT in units facing south.

[8] I shall refer to the loud music and Boom Boom Boom vibrations about which Gordner complains as “The Harm”.

[16] In his evidence, he stated that he had lived in his condo for 15 years without complaint. Several nightclubs and bars operated in his neighborhood during that time. He stated he had no problems with general noise, bar noise or other types of ambient street noise until Lev3l opened, he thought, early in 2013.

[17] Initially, he put up with the harm. He could not tell the source of the harm at the beginning. He thought it might be 29Park a nightclub across Park St. in the Post Office building. So, his first complaint to City Counselor Valentinis via email, dated May 11, 2013, referred to 29Park. Over time, in 2013, Gordner became convinced that Lev3l was the source of the harm. He was not aware of the date Lev3l had opened. He was satisfied, though, that: “During November 2013, when I came home I could hear noise from Lev3l booming away”.

[18] Gordner described the Harm as “like a bass drum beating in my bedroom permeating the apartment”. “It was not the music but, rather, the bass Boom, Boom, Boom continuously on Friday, Saturday and Sunday nights. Sunday nights were the worst. It was like an elephant stomping in my room.” It was impossible to sleep with the noise. If he was asleep, the noise woke him. He altered his bed time to 8:00 pm on Sundays but after 11:00 pm the harm would wake him. He could go back to bed at 2:30 a.m. He was constantly tired. His work performance was also adversely affected.

[19] As the problem continued, he became more active in trying to get the noise to stop. He was very involved in complaints again between December 2013 and April, 2015. He contacted City Counselor Valentinis, other residents of RWT, the City Bylaw department and the police on numerous occasions. After commencing this action he put up a notice in RWT asking other tenants of RWT to contact him to take action about noise complaints.

[143] On the evidence I make the following findings of fact:

1) The harm is annoying, disturbing, intrusive, pervasive, irritating and loud. The Harm causes a material and unreasonable interference with the plaintiff’s use and enjoyment of his property. Notwithstanding that the defendant installed batt type insulation, the plaintiff continues to experience the Harm in 2017;

The Harm is serious and prolonged; by the conclusion of the trial ongoing for 50 months. For that period, every Friday Saturday and Sunday nights until 2:00 am or later, the plaintiff has suffered pervasive, serious interference with the use and enjoyment of his “property”, his apartment in the RWT;

[145] It is not my intention to write a treatise on the Law of Nuisance, in Canada. The text from which I have drawn salient quotations is more than sufficient. Law Of Nuisance In Canada, Second Edition, Gregory S Pun, Margaret I Hall & Ian M. Knapp,(Markham, Ontario, LexisNexis 2015) includes a very helpful analysis. I quote those passages I find most apt:

Page 6

1.12. The orthodox view (and, it is respectfully submitted, the correct view) is this:

As has been said: "the essence of the tort of nuisance is interference with the enjoyment of land” (Street, Law Of Torts, at page 212.) That interference need not be accompanied by negligence. In nuisance one is concerned with the invasion of the interest in the land; in negligence one must consider the nature of the conduct complained of. Nuisances result frequently from intentional acts undertaken for lawful purposes. The most carefully designed industrial plant operated with the greatest care may well be or cause a nuisance, if for example effluent, smoke, fumes or noise invade the right of enjoyment of neighboring land owners to an unreasonable degree.”

1.13. Equally orthodox statements are that ”[w]hether the intrusion resulted from intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as a nuisance” and that “[n]egligence is not a prerequisite to an action for nuisance.” That negligence is irrelevant to liability in nuisance is furthermore consistent with a long-standing orthodoxy that the plea “all possible care and skill were used” is an ineffectual defense to nuisance.

Page 18

1.32 Another aspect of continued developments is that the common-law actions may sometimes offer relief when the statutory scheme does not. For example, a noisy neighbour may be within the boundaries set by a bylaw, but may still be subject to control (and remedy) pursuant to the common law private nuisance.

Page 59

3.4 Of the many difficulties encountered in trying to define the tort, one is to keep the focus on the harm suffered by the plaintiff, rather than to refer to the conduct of the defendant… Yet another stems from the “indirect” nature of the harm suffered; and yet another is to give content to the concept of "reasonableness" (or “Unreasonableness”), especially without invoking notions of negligence law that would taint the tort of private nuisance. [my emphasis]

[146] The Ontario Court of Appeal states in Antrim at para 77 (see below) the same proposition: “the nuisance unlike other torts focuses on the damage to the [plaintiff] as opposed to the conduct of the [defendant].”

[147] In Balmain Hotel Group L.P. v. 1547648 Ontario Ltd, 2009 CanLII 28199, Newbould J. an action in nuisance sets out the factors to determine reasonableness of the defendant’s conduct. The case deals with nightly noise complaints by the plaintiff Hotel and its guests against the nightclub operating next door. The factors at paragraph 49:

(i) the severity of the interference, having regard to its nature and duration and effect;

(ii) the character of the locale;

(iii) the utility of the defendant’s conduct;

(iv) the severity of the use interfered with.

[148 ]These factors are referred to with approval in Antrim (discussed below). The Antrim case considered a nuisance claim arising from an expropriation of land in the vicinity of a truck stop because the construction of Highway 417 interfered with customer access to its [Antrim’s] business.

[149] Before the Ontario Court of Appeal Antrim Truck Centre Ltd. v. Ontario, 2011419 (CanLII) the court approves the following:

[92] the simple fact that a plaintiff is abnormally sensitive is not sufficient, however, to bar a claim in nuisance, as the claim may nevertheless succeed if the interference would have amounted to an actionable claim where the plaintiff a person with ordinary sensitivities: Linden and Feldthusen, at p. 588 [etc.]

[150] This proposition is not contradicted on appeal to the Supreme Court of Canada.

[151] The Supreme Court overturned the decision of the Court of Appeal. The decision of the Supreme court is reported as Antrim Truck Centre Ltd. v. Ontario, 2013 SCC 13 (CanLII), (2013) 1 SCR 594. In his Judgment Cromwell J.A. for the court, dealing with the four factors test modifies the strict application of the four factors:

Para. 54 Provided the [OMB] Board reasonably carried out the analysis in substance, it was not required to specifically enumerate and refer by name to every factor mentioned in the case law. As La forest J. made clear in Tock, the factors he enumerated are simply examples of the sorts of criteria that the courts have articulated as being potentially of assistance when comparing the gravity of the harm with the utility of the defendants conduct…. Failure to expressly mention one or more of these factors is not, on its own, a reviewable error.

[152] On the question of lawful conduct the Court says:

Para. 29 A finding of reasonable conduct will not, however, necessarily preclude a finding of liability. The editors of Flemings the Law of Torts put this point well at s. 21.120

Unreasonableness in nuisance relates primarily to the character and extent of the harm caused rather than threatened….[T]he “duty” not to expose one’s neighbors to a nuisance is not necessarily discharged by exercising reasonable care or even all possible care. In that sense, therefore, liability is strict…

[153] About interference or physical harm:

Para. 34 …In other words, the question is not simply whether the broader public good outweighs the individual interference when the two are assigned equal weight. Rather, the question is whether the interference is greater than the individual should be expected to bear in the public interest without compensation. [my emphasis]

Para. 47 The distinctions between material or physical harm on the one hand and interferences such as loss of amenities on the other hand has a long history and deep roots going back to the House of Lords decision in St. Helen’s Smelting Co v. Tipping (1865), 11 H.L.C. 642. In that case the Lord Chancellor distinguish between nuisance causing ”material injury” to property and nuisance “productive of sensible personal discomfort”, finding that only the latter category required an assessment of weather an interference is reasonable taking into account all of the surrounding circumstances: p. 650. This approach has since been adopted in many Canadian jurisdictions (see e.g., Walker v. McKinnon Industries Ltd., 1949 CanLII 105 (ON SC.)….

Para. 48 My view is that the reasonableness inquiry should not be short-circuited on the basis of certain categories of interference that are considered self-evidently unreasonable… The sort of balancing inherent in the reasonableness analysis is at the heart of the tort of private nuisance.

[154] In Banfai et al, v. Formula Fun Centre Inc., 1984 CanLII 2189, O’Leary J., awarded damages for noise he found was a nuisance. He found liability against both the tenant Formula Fun and owner of the land. The complaint was the noise of small racing cars being operated from May to October between 9:00 am and 11:00 pm on property adjacent to the plaintiffs motel business. The municipality had granted the necessary permits despite opposition from local businesses.

[155] Much of the evidence focused upon traffic, over-flying helicopters and other ambient noises. The court found however, at page 7, that:

“the noise from the track by itself constitutes an unreasonable, undue and material interference with the plaintiffs enjoyment of their property … It is a noise that, given the character of the area in which the Banfais live and all plaintiffs conduct their business, the plaintiffs should not have to put up with, without readdress.”

[156] I note, too, that in Banfai the defendant called the evidence of a Best Western motel owner from across the street from the defendant to say the noise was not offensive. The defendant advances the same argument in the case at Bar.

[194] The evidence of the plaintiff and other resident witnesses from RWT satisfies the test just enunciated. I consider the defendant’s long term disregard of the comfort of its neighbours to be outrageous. The defendant received many, many complaints I have detailed above yet it failed or simply refused to contain the Harm for four years and more. Mr. Komsa sought no professional advice – he just searched on the internet and made an obviously uninformed decision about the type of insulation required. It might be said, as well, that the Report of Dr. Novak delivered in 2015 long before trial provided an opportunity for Lev3l to take proper steps to insulate to attenuate the Boom Boom Boom. Again, Lev3l failed to take any positive steps and the Harm continues as I write these Reasons. I assess aggravated damages at $10,000 which I will include as part of the damages award for the Nuisance.

[196] The corporate defendant operates a number of entertainment venues in Windsor and one in London. Its revenues depend upon patrons attending Lev3l on weekend nights. Turning down or turning off one or both subwoofers caused patrons to leave thus cutting into revenues. So maintaining unreasonable volumes in the music benefitted the defendant but at substantial cost its neighbours. I cannot enjoin the defendant’s conduct creating the ongoing harm; I can attempt to discourage the behaviour by an award of damages as a financial incentive.

[196] After much careful thought, I have decided that the defendant is entitled to damages calculated on the following formula:

$50/night X 3nights X 52 weeks/yr X 4.4 years = $34,320.00.

[197] I add to $34,320 the $10,000 I determined for aggravated damages. So the plaintiff is entitled to a total award for damages of $44,320.00.

[198] For the reasons given, the plaintiff is entitled to recover judgment for the maximum in this court, $25,000.00 plus interest from the date this action was commenced and his costs.

R. v. Leyton, 2008 ONCJ 757 (CanLII)

There is a principle in the law of torts that a person takes their complainant as they find them meaning that the complainant's particular sensitivities to something does not constitute a defense for a defendant. This is known as the doctrine of the "thin skulled plaintiff" and applies where you have someone who is more sensitive or susceptible to something than an average individual due to injury or natural predisposition.

In this case we appear to have a rather classic conflict of rights with the right of the defendants to enjoy the use of their property and make the normal noises of a family, and the right of the complainant to enjoy the use of her property free of the disturbances caused by noise from the defendant's property. As a result this leads the court to the difficult task of balancing the rights and applying a test of reasonableness to deal with this conflict of freedoms.

The test applied by this Court in making its determination under this bylaw is whether noise was permitted to escape from the residence and disturbed the neighbor. It could not have been the intention of the legislation to provide penal consequences for the escape of any and all sound from a property, as it is a principle of regulatory law that some standard of reasonableness must be applied as it is inconceivable that legislators could have intended to impose a requirement of absolute silence.

In balancing the rights of the defendant against those of the complainant there must be some test of reasonableness so that the noise must not be such that it is unreasonable for a careful and prudent individual who respects the rights of their neighbor. In looking at the overall scenario, I must also consider the level, frequency, effect and duration of the noise. The court is also keeping in mind that a charge is proven by any one of the incidents alleged, and that it is not necessary to prove each and every alleged occurrence.

In this case it also appears that the situation was probably inflamed by the presence of intense personal feelings and a clash of personalities. This may have heightened the sensitivity to noise and amplified the response as well as possibly complicating the issue of perception of the source of the sound in some of the incidents. As a result, the complainant could easily honestly believe that the defendants were the source of some of the sounds even if they were not, however this is an issue of speculation and no reliable decision could possibly be made by the court beond a reasonable doubt.

As set out earlier in the findings of fact it is clear that there were incidents on a few occasions involving sounds being produced within the defendants' residence which clearly disturbed the complainant. These sounds include the frequently repeated noises of the child running within the home and the sound of the stereo on at least one or two occasions. The court finds that the sound of the washing machine would not meet the test as this was accidental and the child crying again would not meet the test as it could be unavoidable. Therefore there will be a conviction based on a few of the incidents as set out in these reasons.