Neighbourhood annoyances and Section 976 C.C.Q.: The Court of Appeal of Québec promotes the seeking of a balance between the rights of the parties

On March 28, 2017, the Court of Appeal of Québec rendered a judgment in the case of Homans v. Gestion Paroi inc.[1], containing useful remarks with respect to the evaluation of claims concerning neighbourhood annoyances and the possible sanctions in this regard.

Section 976 C.C.Q., that provides that “Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other”, is a source of liability invoked in matters of environmental law. As it was decided by the Supreme Court of Canada in the case of St. Lawrence Cement Inc. v. Barrette[2], this section establishes a no-fault liability scheme based upon the result of the actions taken rather than the behaviour of the defendant.

In the case of Homans v. Gestion Paroi inc., the Respondents live nearby a racetrack owned by the Appellant Homans and operated by the Co-Appellant 9202-2680 Québec inc. The Respondents, complaining of the loud activities, instituted an action seeking an interlocutory and permanent injunction, as well as an action in damages. On April 1, 2015, after interim measures were taken, the first instance judge concluded that there had been abnormal annoyances within the scope of Section 976 C.C.Q. and ordered the complete and definitive cessation of the racetrack’s activities, in addition to compensatory damages.

On appeal, amongst the grounds for contestation, the Appellants submitted that the judge had not determined what constitutes an acceptable level of noise and erred in opting for the complete closing of the racetrack.

The Court of Appeal, in reasons written by the Honourable Judge Marie-Josée Hogue, confirms that the regime of Section 976 C.C.Q. implies the search for a balance between the rights of the parties:

“[115] [Translation] Section 976 C.C.Q. does not prohibit the conduct of activities that cause annoyances suffered by neighbours. On the contrary, it expressly establishes the rule that neighbours need to accept normal neighbourhood annoyances. It is an a contrario interpretation, which is by all means a legitimate interpretation, that allowed the courts to conclude that it also prohibits causing abnormal annoyances for neighbours.

[116] Thus, this section, on which is founded the regime governing neighbourhood annoyances, contains within it the very idea of a balance between everyone’s rights and imposes upon the courts, when they are asked to intervene, the difficult task of establishing this balance. They must do so by regulating the activities, otherwise lawful, in a way that ensures that the disturbances that they cause do not exceed the normal neighbourhood annoyances. They can reduce their frequency, their intensity, their duration, or even in certain circumstances, prohibit them.

[117] I am of the opinion, however, that the activities should not be definitively prohibited unless they are unlawful or if it is clear that the annoyances that they cause cannot be reduced to an acceptable level. The latter case should rarely arise because only particular circumstances should allow one to conclude that an activity cannot be regulated in a way that will render the annoyances acceptable.” (Our emphasis)

Although no objective norm exists concerning the limit of noise applicable to the activities in this case, the Court of Appeal added that the first instance judge could have determined the terms and operating conditions deemed sufficient to reduce the annoyances and render them acceptable.

In this case, the authorization certificate issued by the Ministry of Environment in May 2016, after the first instance judgment, but authorized as new evidence by the Court of Appeal, contained conditions deemed sufficient to attain “[Translation] a fair balance between the rights of the Appellants to exploit their company and the rights of the Respondents to not have to endure abnormal annoyances”.[3]

Therefore, the Court of Appeal grants the appeal in part, ordering the Appellants to exploit, or permitting them to exploit the racetrack, in accordance with the prescribed terms.

Finally, with respect to the awarding of damages, the Court of Appeal substitutes the solidary liability for the “in solidum” liability of the Appellants, respectively owner and manager of the racetrack. Indeed, in regards to the Respondents, the Court holds that the Appellants are both liable for one and the same obligation to pay damages, but because their responsibility is rooted in the regime of Section 976 C.C.Q., irrespective of fault, the Court concludes that imperfect solidarity applies between the Appellants, hence the “in solidum” liability.

Comments of McCarthy Tétrault

This case reminds us that a consequence of Section 976 C.C.Q. is to prohibit neighbourhood annoyances that are deemed to be abnormal, but it does not prohibit all of the annoyances associated with societal life. The analysis in this regard requires a factual, contextual and individualised examination of each situation. This Court of Appeal judgment confirms the necessity of presenting convincing evidence before rendering a ruling definitively prohibiting the continuation of business operations that cause some annoyances. Where appropriate, the continuation of lawful activities should be favoured in cases where the annoyances can be diminished or rendered acceptable.

For advice in matters of environmental law, you are invited to contact a lawyer from our Environmental Law Group.

[1] 2017 QCCA 480 (The Honourable Judges Savard, Émond and Hogue)

[2] [2008] 3 S.C.R. 392

[3] Par. 133.