It takes a village, and sometimes a courtroom, to raise good neighbours

Joyce Blond Frank B.A., B.C.L., LL.M.

September, 2010

Summer has come and gone. Hopefully you were able to enjoy your pool or read peacefully on the balcony.

But if the pool was covered with leaves from a neighbour’s tree, or the air rang with the sounds of his stereo, what could you do? One has a right to the peaceful enjoyment of one’s property, but one does not live in isolation and the right of ownership has its limitations.

No one has a right to deliberately disturb his neighbour but the law will not protect you from enduring normal neighbourhood annoyances that are not beyond the limit of tolerance owed by one neighbour to another. The problem is how do you define normal annoyances? What constitutes excessive inconvenience? What is reasonable behavior? How do you establish a limit of tolerance? What if your neighbour is a friendly, nice, quiet fellow who means you no harm but does in fact cause you great inconvenience because of his trees, or hedges, or fence? What if your neighbour finds your favourite shade tree to be a great inconvenience to him?

These are the kinds of problems our courts are often called upon to resolve. When faced with problems between neighbours, the Supreme Court of Canada has recognized that responsibility can exist without fault where the annoyance exceeds the limit of tolerance owed by one neighbour toward the other.

In other words, the responsibility is based not on the behavior of one toward the other but rather on the inconvenience endured by the other. In such cases one can be held liable in damages for abnormal or excessive inconvenience to one’s neighbour even where everything possible has been done to avoid causing the inconvenience.

The nature and location of the properties as well as local custom and existing provincial and municipal laws and regulations will be taken into consideration by the courts when assessing liability. It is the result of the act rather than its intention which counts.

It’s on the basis of this reasoning that the Supreme Court allowed a class action suit to proceed against a company whose operations created dust, noise and offensive odours even though the company had done everything it could to minimize these problems. More weight had to be given to the results of their operations rather than to the behaviour of the company, and the neighbouring property owners had suffered abnormal inconvenience exceeding the limits of toleration they should be expected to exercise.

It is to be noted that the industry was bordering a residential area.

Noise and dirt is a frequent problem where people live near an industrial establishment and in such cases the court will often look at municipal or provincial laws that limit or regulate what such establishments can or cannot do. In another case similar to the one described above, the industrial establishment had made every effort to limit the dirt and noise and there was no evidence that it was in violation of any legislation or regulation regarding the environment.

The court held that there was insufficient proof that the noise level constituted an abnormal or excessive inconvenience, but was considered normal given the area in which the plaintiff lived. The zoning in this case was an important element in the court’s decision.

In yet another case where excessive noise emanating from a dog kennel was the complaint, the court looked at the decibel level permitted by the Environmental Quality Act as well as at a resolution of the local municipal council, which recognized that exploitation of the kennel was causing a nuisance and set out the modifications the kennel owner would be obliged to undertake to avoid the closing of the kennel.

Trees and hedges are another frequent cause of tension between neighbours. Where fir trees 25 feet high were planted on the separation line between two properties, the neighbour went to court asking that they be cut on the grounds that they were not aesthetically pleasing, kept the sun out and shed pine needles all over his property, especially on the patio and in the pool. Even though it had already been established that no municipal bylaw had been violated, the judge ordered that the trees be cut on the grounds that the lack of sunlight and the vast quantity of pine needles constituted an abnormal inconvenience and the trees were too high for an urban environment.

However, in a similar case where a 50-year-old maple tree in a residential area had grown to 18 metres and was dropping leaves on the neighbour’s property, dirtying the patio, blocking the roof drain and swimming-pool filter, the court held that the property owner had a right to enjoy his property and plant trees and it would only be a minor inconvenience for the offended neighbour to cover his pool and put a filter on his drain pipes. Moreover, the court blamed him for having installed his pool in the vicinity of the tree.

The judge also felt the cost of cleaning the property was a normal maintenance expense. There are other cases in which similar complaints have been put before the courts and judges have decided that covering a pool, cleaning out roof drains, etc., was part of acceptable maintenance and that neighbours had to accept the normal inconveniences of proximity.

In another case, a judge assessed damages against both neighbours, each of whom had made a complaint against the other: against one for refusing to cut down annoying tree branches and against the other for having cut down some trees without the consent of his neighbour and without the permission of the court.

Neighbour fights can be complex and multifaceted. Many of these problems wind up before the courts, which will consider all aspects of each case including the behaviour of the parties, the necessity of maintaining a status quo, the extent and nature of the prejudice suffered and existing legislation and regulations.

Where a person takes matters into his own hands, such as cutting trees or hedges without permission, the damages awarded by the court can be substantial.

It is probably in everybody’s best interests to try to be a good neighbour and do whatever is necessary to minimize any inconvenience to someone else.

And always remember that no matter how troublesome the situation may be, if you want to avoid being held liable for damages, you cannot remove the source of the annoyance without the consent of your neighbour or the authorization of the court.