Québec Court of Appeal renders its first decision on neighbourhood annoyances since Ciment St-Laurent
On February 9, 2009, the Québec Court of Appeal rendered its decision in Entreprises Auberge du parc v. Site historique du Banc-de-pêche de Paspébiac.1 This is the first time the Québec Court of Appeal has ruled on the issue of neighbourhood annoyances since the St. Lawrence Cement judgment. The decision merits our attention because it clarifies some of the criteria leading to a finding of abnormal neighbourhood annoyances.
The appellant operates a thalassotherapy centre. The respondent, its neighbour, is a non-profit organization managing a historical site. During the summer season, the respondent is host to outdoor musical entertainment, the noise from which disturbs the appellant's clientele. The appellant consequently filed a Motion for a permanent injunction against the respondent.
3. Decision and points of interest
In a unanimous decision, the Court of Appeal dismissed the appeal and confirmed the trial judge's decision that the annoyances the appellant was complaining about were not unreasonable, intolerable or excessive.
The Court of Appeal affirmed that Article 976 C.C.Q. does not grant the appellant any vested right to expect the neighbourhood to remain unchanged or to expect the integral preservation of its environment, in spite of the precedence of its facilities. It notes, however, that the precedence of a use constitutes a relevant element that can be considered to determine if a neighbourhood annoyance is normal or not. Hence, the Court states that by deciding to live in proximity of a known source of annoyances, a person accepts, up to a certain point, the normal annoyances of the environment in which he has established himself. Conversely, a person who creates a new source of annoyances in a peaceful residential area could be blamed for the deterioration of the quality of the area in which he has established himself, as well as the abuse of his right of ownership.
The Court of Appeal also points out that the normal or abnormal nature of an annoyance must not be determined in a factual vacuum, but rather by taking into account all of the circumstances in which this annoyance occurs. In this regard, it confirms the relevance of analyzing the following elements:
- the precedence of the appellant's activities;
- the legality of the respondent's activities;
- the investments and modifications effected by the respondent to reduce the annoyances generated by its activities;
- the frequency, the duration and the time at which the annoyances occur;
- the level of ambient noise and the level reached by the respondent's activities;
- the zoning of the appellant's property;
- the absence of complaints from the neighbouring residential area;
- the absence of financial impact suffered by the appellant due to neighbourhood annoyances;
- the constraints on the respondent that would make it difficult to move the source of annoyances; and
- the unique features of the appellant's facilities.
The Court of Appeal emphasizes that the annoyances must be analyzed objectively rather than according to the appellants' subjective expectations. Furthermore, based on our article published in 2004,2 the Court indicates that circumstances must demonstrate the gravity of the annoyances rather than the simple deprivation of an advantage. Such determination rests on the discretion of the trial judge.
4. McCarthy Tétrault comments
In the St. Lawrence Cement decision, the Supreme Court of Canada recognized the existence of a no-fault liability regime for neighbourhood annoyances. However, the Court did not set criteria that would define what constitutes abnormal neighbourhood annoyances. The Banc-de-pêche de Paspébiac decision sheds light on some of these criteria.
We focus on this decision as it confirms the relevance of producing evidence that an industry whose activities irritate its neighbours is in compliance with legislation. Although compliance with the law is only one element among others in the analysis of the gravity of the annoyances under Article 976 C.C.Q., this acknowledgement nonetheless contributes to reducing the legal uncertainty of the neighbourhood annoyances regime.
This decision illustrates the fact that the courts are prone to dealing rigorously with injunction applications, because of the importance of the impact of a decision granting an application for injunction with respect to neighbourhood annoyances.
Finally, the Court of Appeal emphasizes that the gravity of annoyances must be analyzed objectively through the perspective of a "reasonable" neighbour, rather than through the subjective expectations of particularly sensitive neighbours. Moreover, the courts will have to consider all of the relevant circumstances, including the respondent’s behaviour and the objective gravity of the annoyances. This decision could open the door to the jurisprudential development of an objective analytical framework with respect to neighbourhood annoyances, as emphasized in our 2004 article.3 The development of such a framework would reduce the sometimes arbitrary and unpredictable nature of decisions in this respect.
It will be interesting to find out how justices of the Superior Court and of the Court of Québec will apply this decision of the Court of Appeal in cases brought before them.
1 2009 QCCA 257.
2 Michel Gagné, "Les recours pour troubles de voisinage: les véritables enjeux" (Recourses for Neighbourhood Annoyances: The Real Issues), in Professional Development Services, Barreau du Québec, Recent Developments in Environmental Law, vol. 214, Cowansville, Éditions Yvon Blais, 2004, 65, p. 77.
3 Ibid., p. 139 to 150.