Neighbourhood annoyances and the duty of Municipal Authorities to enforce their by-laws
On September 17, 2009, the Superior Court of Québec ordered the Municipality of St-Adolphe-d’Howard to pay more than $115,000 in damages to two residents of the municipality.1 This decision is notable because it confirms the duty of public authorities to comply with and to ensure compliance with their environmental bylaws.
On December 1, 1992, the plaintiffs acquired a single-family home on the shoreline near the municipal pier of St-Adolphe-d’Howard. At the time, the pier was used by the public for various activities including swimming, fishing and boat rentals. In 1995, despite the prohibitions provided for under the municipal zoning bylaw, the municipality transformed the pier into a bistro/café and also erected a festival tent for the presentation of musical entertainment. These installations, rented and operated by private tenants, inconvenienced the plaintiffs because of the significant noise and increased traffic they generated. The plaintiffs lodged a complaint and were granted a court order forcing compliance to municipal noise standards. A few months later, the municipality amended the noise standards provided for under its nuisance bylaw to bypass the restrictions imposed by the court. In addition, despite repeated complaints by residents, municipal police officers received instructions to "look the other way" when visitors parked illegally on the street leading to the pier where the plaintiffs resided. The plaintiffs complained on several occasions, but the municipality failed to act in response to their formal letters of demand.
3. Decision and Highlights
The Honourable Justice Joël A. Silcoff of the Superior Court decided that the municipality had abused its regulatory and operational discretionary powers. According to the court, the municipality acted in bad faith and in a malicious, abusive and arbitrary manner by failing to respect and enforce compliance to its own zoning, nuisance and parking bylaws. The court further concluded that the tenants of the bistro/bar and the festival tent were at fault since they did not comply with the municipal noise bylaw. The court therefore held the civil liability of the defendants on the basis of the fault liability regime established under Art. 1457 of the Civil Code of Québec (CCQ).
The court also indicated that it would have held the civil liability of the defendants, even in the absence of fault, on the basis of the neighbourhood annoyances regime provided for under Art. 976 CCQ. In this regard, it stated that persons who move to a new location must accept the normal annoyances related to their new neighbourhood. However, after having considered the nature and the location of the plaintiffs’ property, the prior local uses, and the nature, intensity and frequency of inconveniences suffered by the plaintiffs, the court concluded that the neighbourhood inconveniences had significantly increased such that they exceeded the acceptable limits of tolerance.
As to the damages, the court agreed with the plaintiffs' expert, who held that the plaintiff was suffering from an anatomo-physiological deficit of 35%. On this basis, and taking into account the evidence as a whole, the court ordered the defendants to pay jointly to the plaintiffs damages in the amount of $115,000 plus costs and experts fees, the municipality being responsible for 80% of these damages.
4. McCarthy Tétrault Notes:
This court ruling is of interest on many levels. On the one hand, it shows the autonomy of the neighbourhood annoyances liability regime in relation to the fault liability regime established under Art. 1457 CCQ.
On the other hand, the court confirmed that a municipality can be held liable for failing, repeatedly and intentionally, to respect or enforce compliance to its own bylaws. This decision could prompt certain municipalities to impose a more stringent application of their nuisance bylaws. Although it was rendered in a different context, this decision is reminiscent of a decision in which a municipality and the Québec Department of the Environment were found to have been negligent in the enforcement of environmental regulations and were therefore condemned to pay damages to neighbours inconvenienced by a landfill dump.2
The St. Lawrence Cement3 decision had confirmed that the duty of good neighbourliness exists not only in favour of neighbour-owners but also neighbour-tenants. Conversely, the Superior Court concluded in Émond v. St-Adolphe-d'Howard that tenants, like owners, also have a duty not to cause to the neighbourhood inconveniences that exceed the limits of tolerance.
As for damages, the court fully analyzed the medical and psychiatric expert evidence to determine the measure of the inconveniences suffered by the plaintiffs. Hence, this ruling confirms the relevance, in appropriate cases, of submitting expert evidence on damages, even in matters of neighbourhood annoyances.
It will be interesting to see if the Court of Appeal will uphold this judgment and whether it will prompt the authorities to tighten the application of environment regulations.
1 Émond v. St-Adolphe-d'Howard (Municipalité de), 2009 QCCS 4132, inscription in appeal on October 19, 2009.
2 Girard v. 2944-7828 Québec Inc., REJB 2003-45320 (Superior Court) and EYB 2004-81753 (Court of Appeal).
3 St. Lawrence Cement Inc. v. Barrette,  3 S.C.R. 392.