Nuisance - Re: The Test

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;