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The Courts' Decisions on Noise and Odour Nuisance

November 19, 2021

British Columbia

,

Canada

Issue

What is the range of damages for nuisance caused by light, noise, or odour?

Conclusion

The case law suggests a range of general damages for noise or odour nuisance varies from approximately $2,100 to $51,300 in 2021 dollars. No cases were located awarding damages for light nuisance.

Plaintiffs need not show that the value of their leaseholds has diminished by virtue of the nuisance where they do not present a case for diminution of the value of their houses, but rather complain only about not being able to enjoy them in a reasonable manner. (469238 B.C. Ltd. (Lawrence Heights) v. Okanagan Aggregates Ltd. (Motoplex Speedway and Event Park))

Nuisance is actionable because it is an unreasonable interference with the use and enjoyment of a plaintiff's land. The caselaw indicates that in assessing damages the courts consider these factors: the frequency, degree and length of the interference; its effect on the health and comfort of the plaintiffs while on the land; the effect on the plaintiff's enjoyment of the land; the effect on the plaintiff's activities on the land. (Pyke v. Tri Gro Enterprises Ltd.)

In Pritchard v. Van Nes, the parties were next-door neighbours. The defendant installed a large fish pond along the rear of their property line, and the plaintiff alleged that the continuous running of the motorized waterfall disrupted his family's sleep. The plaintiff successfully sued for nuisance. The Supreme Court held that a fair award in all the circumstances was $2,000 (approximately $2,100 in 2021 dollars).

In Aschenbrenner v. Yahemech, the plaintiffs moved into a home in Victoria and shortly thereafter installed a hot tub. The humming of the hot tub disturbed their defendant neighbour. The plaintiffs went to great lengths to reduce the noise from the hot tub. They even went so far as purchasing a $700 new motor that ran quieter, and still the defendant was unsatisfied. The defendant engaged in sustained and numerous incidents of harassing and threatening the plaintiffs. Metzger J. found the defendant meant to annoy or irritate the plaintiffs by placing odorous compost bins next to the property line, subjecting the plaintiffs to compost smells almost on a daily basis. In one instance, the defendant placed fish offal in two compost bins on the hot summer day of the plaintiffs’ daughter’s graduation party on their back deck, and another time, the defendant made excessive noise moving rocks in the middle of the night. Metzger J. awarded $2,000 (approximately $2,300 in 2021 dollars) in general damages for the nuisance claim.

In Suzuki v. Munroe, the parties were neighbours in a residential suburban community in Coquitlam, B.C. The plaintiffs, husband and wife, claimed that the noise emanating from a central air conditioning unit 18 feet away from the plaintiffs’ bedroom window created a nuisance. This went on for a period of approximately 3 years. The plaintiffs’ sleep was also disturbed, and the negative impact on the plaintiff wife’s health was especially pronounced as the nuisance was a cause of some of her psychiatric challenges. Medical evidence supported her claim. The plaintiffs had evidence of professionally obtained noise level measurements, which found that the air conditioned produced 51 to 53 decibels. On the evidence, Verhoeven J. found that most people would consider an air conditioning unit operating in excess of 50 decibels only a few feet from their bedroom window as constituting a nuisance. Verhoeven J. ordered $2,000 (approximately $2,400 in 2021 dollars) as damages to the husband and $4,000 (approximately $4,800 in 2021 dollars) to the wife, whose distress and suffering was more severe.

In 469238 B.C. Ltd. (Lawrence Heights) v. Okanagan Aggregates Ltd. (Motoplex Speedway and Event Park), affirmed on appeal 2017 BCCA 127, the defendants owned and operated a motorcar race track located in near proximity to a residential area. The plaintiffs alleged that noise from the operation of the race tracks interfered with their enjoyment of their land. The plaintiffs commenced an action in nuisance regarding the noise from the track. The Court held that the noise from the race track substantially interfered with the plaintiffs' use and enjoyment of their land, and the noise from the racing cars was an unreasonable interference with the individual plaintiffs, and substantially interfered with the corporate plaintiff's use of the leasehold. None of the individual plaintiffs presented a case for diminution of the value of their houses, they only complained about not being able to enjoy them in a reasonable manner. The Court awarded $7,500 (approximately $8,000 in 2021 dollars) to three of the individual plaintiffs who had lived with the nuisance for 12 years, and $5,000 (approximately $5,300 in 2021 dollars) to one of the individual plaintiffs who lived with the nuisance for nine years.

In Pope v. Yas, the plaintiff strata lot owners were subjected to intermittent but significant noise from fellow strata lot owners for a period of approximately five years, often on weekends and overnight. The Tribunal held that the defendants were liable for nuisance that unreasonably interfered with the plaintiffs' right to use and enjoy their strata lot. The Tribunal awarded the plaintiffs $8,000 (approximately $8,200 in 2021 dollars) in damages.

In Pyke v. Tri Gro Enterprises Ltd., affirmed on appeal 2001 CanLII 8581 (ON CA), the plaintiffs were property owners on or near the defendant's mushroom farm in the Town of Whitby. All but one of the plaintiffs lived on their properties. Most of them used their properties only for residential and recreational purposes, although some leased part of their lands to farmers. Some of the plaintiffs actively farmed their lands in the past. All but one of the plaintiffs owned their lands before the arrival of the defendants' mushroom farm. The plaintiffs brought suit against the defendants for nuisance relating to the odour from the mushroom farm. The plaintiffs' counsel conceded that as only the Pykes had sold their property, they were the only individual plaintiffs that could claim for loss of property value. The Court went on to assess non-pecuniary damages for the individual plaintiffs. There were a number of factors which distinguished the damage to each individual plaintiff, such as the frequency and degree of the intensity of the odour on their property, the frequency and time of day they spent on the property, the extent to which their activities were disrupted, and the Court's assessment of the extent to which each was personally affected taking into account their physical and psychological persona. The Court awarded damages ranging from $7,500 (approximately $11,000 in 2021 dollars) to $35,000 (approximately $51,300 in 2021 dollars).

Law

The case law suggests a range of general damages for noise or odour nuisance varies from approximately $2,100 to $51,300 in 2021 dollars. No cases were located awarding damages for light nuisance.

In Pritchard v. Van Nes, 2016 BCSC 686 (CanLII), the parties were next-door neighbours. The defendant installed a large fish pond along the rear of their property line, and the plaintiff alleged that the continuous running of the motorized waterfall disrupted his family's sleep. The plaintiff successfully sued for nuisance. The Supreme Court held that a fair award in all the circumstances was $2,000 (approximately $2,100 in 2021 dollars):

[50] The plaintiff relies on three cases as to quantification of damages for the nuisance claim: Aschenbrenner v. Yahemech, 2010 BCSC 905; Boggs v. Harris, 2009 BCSC 789; and Suzuki v. Munroe, 2009 BCSC 1403.

[51] In Aschenbrenner, the plaintiffs moved into a home in Victoria and shortly thereafter installed a hot tub. The humming of the hot tub disturbed their defendant neighbour. The plaintiffs went to great lengths to reduce the noise from the hot tub. They even went so far as purchasing a $700 new motor that ran quieter, and still the defendant was unsatisfied. The defendant engaged in sustained and numerous incidents of harassing and threatening the plaintiffs. Metzger J. found the defendant meant to annoy or irritate the plaintiffs by placing odorous compost bins next to the property line, subjecting the plaintiffs to compost smells almost on a daily basis. In one instance, the defendant placed fish offal in two compost bins on the hot summer day of the plaintiffs’ daughter’s graduation party on their back deck, and another time, the defendant made excessive noise moving rocks in the middle of the night. Metzger J. awarded $2,000 in general damages for the nuisance claim.

[52] In Boggs, the plaintiffs moved into a condominium complex and attached to their unit was that of the defendants. Over the period of a little more than two years, the defendants deliberately caused excessive noise in their own unit to annoy the plaintiffs, such as pounding on the floor, on walls, moving and throwing chairs around, and playing loud music. There were at least 10 to 12 occasions of excessive noise. The plaintiffs, who had been in a same-sex relationship for about 30 years, claimed that the intentional nuisance directed at them was as a result of the their sexual orientation. The defendants video- and audio-taped the plaintiffs several times, and had several confrontations where the defendants made insulting and offensive remarks against them. Halfyard J. stated that the incidents viewed in isolation were not serious, but they formed part of a lengthy course of misconduct which constitutes nuisance, and awarded $7,500 for non-pecuniary damages.

[53] Suzuki is more factually similar to the present matter. In that case, the parties were, as in this matter, neighbours in a residential suburban community in Coquitlam, B.C. The plaintiffs, husband and wife, claimed that the noise emanating from a central air conditioning unit 18 feet away from the plaintiffs’ bedroom window created a nuisance. This went on for a period of approximately 3 years. The plaintiffs’ sleep was also disturbed, and the negative impact on the plaintiff wife’s health was especially pronounced as the nuisance was a cause of some of her psychiatric challenges. Medical evidence supported her claim.

[54] The plaintiffs had evidence of professionally obtained noise level measurements, which found that the air conditioned produced 51 to 53 decibels. On the evidence, Verhoeven J. found that most people would consider an air conditioning unit operating in excess of 50 decibels only a few feet from their bedroom window as constituting a nuisance. Verhoeven J. ordered $2,000 as damages to the husband and $4,000 to the wife, whose distress and suffering was more severe. He acknowledged that the damage award would not eliminate the nuisance, but it was still justified in all the circumstances to provide some solace to the plaintiffs. Verhoeven J. also awarded a permanent injunction that did not allow the defendants to operate the air conditioner above a certain decibel limit during the nights. He stated that the damage awards would be significantly higher if he were not also granting an injunction.

[55] I do not find the nuisance caused by the waterfall structure entirely similar to the disruption caused by a loud air conditioner near one’s bedroom window. The waterfall structure was further away from Mr. Pritchard’s bedroom and I would think that the distress and annoyance caused by a motorized sound is more so for ordinary people than that caused by a loud waterfall.

[56] I find a fair award in all the circumstances in respect of that nuisance is $2,000. In respect of the issues surrounding the defendant’s dog, I award a further $500, for a total damages award in nuisance of $2,500.

In 469238 B.C. Ltd. (Lawrence Heights) v. Okanagan Aggregates Ltd. (Motoplex Speedway and Event Park), 2016 BCSC 721 (CanLII), affirmed on appeal 2017 BCCA 127, the defendants owned and operated a motorcar race track located in near proximity to a residential area. The plaintiffs alleged that noise from the operation of the race tracks interfered with their enjoyment of their land. The plaintiffs commenced an action in nuisance regarding the noise from the track. The Court held that the noise from the race track substantially interfered with the plaintiffs' use and enjoyment of their land, and the noise from the racing cars was an unreasonable interference with the individual plaintiffs, and substantially interfered with the corporate plaintiff's use of the leasehold. None of the individual plaintiffs presented a case for diminution of the value of their houses, they only complained about not being able to enjoy them in a reasonable manner. The Court awarded $7,500 (approximately $8,000 in 2021 dollars) to three of the individual plaintiffs who had lived with the nuisance for 12 years, and $5,000 (approximately $5,300 in 2021 dollars) to one of the individual plaintiffs who lived with the nuisance for nine years:

[186] The defendants’ approach to the assessment of damages for the individual plaintiffs was to point out that none of them have shown that the value of their leaseholds has diminished by virtue of the nuisance. That is, with the greatest respect to the defendants, a thoroughly wrong-headed approach. None of the individual plaintiffs ever presented a case for diminution of the value of their houses. They complained only about not being able to enjoy them in a reasonable manner.

[187] In Suzuki v. Munroe, the court awarded damages of $4,000 and $2,000 to the plaintiff wife and husband respectively. There, the nuisance interfered with the plaintiffs’ enjoyment of their property over a period of three years. The nuisance occurred whenever summertime temperatures triggered the defendants’ air conditioner. The plaintiff wife suffered rather more badly than did her husband. She experienced considerable psychological upset from a combination of the nuisance and from having a running battle with the defendants over the air conditioner.

[188] In my opinion, the harm that the individual plaintiffs suffered from the nuisance was less severe than the harm to Mrs. Suzuki, but they have experienced the harm over a longer period of time than she did. I think that a reasonable award of damages to Ms. Schleusener, Mr. Krazanowski, and Mr. Cromarty is $7,500 and to Mr. Christopher Hrabchuk is $5,000. An order will go accordingly.

[189] I am persuaded that 469 has suffered damages as well. I do not accept Mr. MacDougall’s opinion that the capital value of 469’s loss is $2.87 million. That number is not reliable because it is based upon the assumption that racetrack noise has and will permanently prevent 469 from developing the northern most lots on the lower terrace and all of the lots on the upper terrace. The fact is that since Mr. MacDougall expressed his opinion, 469 has developed and rented some of the lower terrace lots. That fact negatives the assumption Mr. MacDougall was instructed to employ and undermines the value of his opinion of 469’s consequent loss.

[190] I am not convinced that 469 should recover any damages relating to delay of development of the remaining lots on the lower terrace.

[191] As I said earlier, I do not accept Mr. MacDougall’s opinion that absent the racetrack by the end of 2007 469 would have developed and sub‑let all of the lots on the lower and upper terraces.

In Pope v. Yas, 2019 BCCRT 1350 (CanLII), the plaintiff strata lot owners were subjected to intermittent but significant noise from fellow strata lot owners for a period of approximately five years, often on weekends and overnight. The Tribunal held that the defendants were liable for nuisance that unreasonably interfered with the plaintiffs' right to use and enjoy their strata lot. The Tribunal awarded the plaintiffs $8,000 (approximately $8,200 in 2021 dollars) in damages:

128. I find that cases on noise nuisance are more similar to the case before me, and therefore their reasoning on general damages is more persuasive. In Suzuki v. Munroe, 2009 BCSC 1403, the BC Supreme Court awarded $6,000 in damages for nuisance when a neighbour’s air conditioner caused undue noise that prevented the petitioners from using their house. In Chen v. The Owners, Strata Plan NW 2265, 2017 BCCRT 113, the tribunal awarded the owner $4,000 in damages for loss of enjoyment of her strata lot over a 2.5 year period due to noise nuisance which impacted the owner’s ability to sleep.

129. In Torok v. Amstutz et al, 2019 BCCRT 386, I ordered $4,000 in damages for noise nuisance caused by an air conditioner. In Bartos et al v. The Owners, Strata Plan BCS 2797, 2019 BCCRT 1040, I ordered $8,000 in damages for 3.3 years of excess noise caused by an elevator, which also affected the owners’ ability to sleep in their strata lot.

130. Although these tribunal decisions are not binding precedents, I find their reasoning is applicable here, and apply it.

131. As explained above, I find that Mr. Pope’s claim for nuisance was not established until the BAP tap test on May 16, 2018. Given this period established nuisance, the impact of the nuisance, and the other facts of this dispute, I find the appropriate amount of general damages is $8,000. I order the Yas family to pay that amount.

132. Mr. Pope is entitled to pre-judgement interest on this amount under the Court Order Interest Act (COIA). I find this interest is payable from the date of the tap test on May 16, 2018. I calculate pre-judgment interest to be $211.89.

133. Mr. Pope claims $63,703.03 in special damages arising from the noise nuisance. These damages are made up of expenses related to a second property the Popes own. The expenses include property transfer taxes and legal costs incurred to buy the property, property taxes, utility bills, insurance, and mileage incurred to travel there from his principle residence (SL12).

134. I find Mr. Pope is not entitled to any of these claimed special damages. He says he bought the second property on October 23, 2013, to escape the effects of ongoing unreasonable noise from SL15. By October 23, 2013, Mr. Pope had only complained to the council about noise from SL15 on 2 occasions since the Yas family moved in (and only once before that). He wrote to the strata about noise on August 13, 2013, but then 4 days later he wrote that there had been a “great abatement” of the noise, so the council did not need to intervene. On September 23, 2013, he wrote to the council about the noise again. There is no further written record of a complaint until March 2014.

In Pyke v. Tri Gro Enterprises Ltd., [1999] O.J. No. 5025 (ONSC), affirmed on appeal the plaintiffs were property owners on or near the defendant's mushroom farm in the Town of Whitby. All but one of the plaintiffs lived on their properties. Most of them used their properties only for residential and recreational purposes, although some leased part of their lands to farmers. Some of the plaintiffs actively farmed their lands in the past. All but one of the plaintiffs owned their lands before the arrival of the defendants' mushroom farm. The plaintiffs brought suit against the defendants for nuisance relating to the odour from the mushroom farm. The plaintiffs' counsel conceded that as only the Pykes had sold their property, they were the only individual plaintiffs that could claim for loss of property value:

Damages for Loss of Property Value

Who is entitled to damages under this head

3 The history of this trial is important in explaining how this claim was resolved.

4 From the outset both sides assumed that each plaintiff had a potential claim for loss of property value. The trial was bifurcated at the request of counsel principally so they could defer obtaining expert appraisal evidence based on the findings of the court. This evidence was obtained and both counsel prepared for the continuation of the trial anticipating that the evidence would be adduced and dealt with.

5 About three days before the continuation of the trial counsel for the defendants turned up authority for the proposition that damages for loss of property value cannot be awarded in a nuisance case unless the plaintiff can prove an actual sale or an aborted attempt to sell the property before the court assesses the damages: Butt v. Oshawa (City) (1926), 59 O.L.R. 520 (Ont. C.A.); Godfrey v. Good Rich Refining Co., [1939] O.R. 106 (Ont. H.C.). The theory underlying this proposition is that the damage has not occurred unless one of these two facts exist and since nuisance is a continuing tort, it is not appropriate to assess damages until the tort causes the loss which might never happen if the plaintiffs never sell their land or attempt to sell it. Counsel for the plaintiffs did not learn of those authorities until the opening of the continued trial.

6 Until those cases were discovered it appeared that counsel for both sides assumed that the plaintiffs could recover damages for loss of property value even if they had not yet attempted to sell their property. Indeed there are a number of cases decided since Butt where damages were awarded in such circumstances. Eg. Nikolajevich v. Goreski (December 11, 1984), Doc. 3844/81 (Ont. H.C.); McLaughlin v. River Road Co-op Ltd. (1988), 86 N.B.R. (2d) 65 (N.B. Q.B.). It appears the courts in those cases were not informed of Butt or the cases it followed.

7 Having reviewed the defendants' authorities after the trial resumed, the plaintiffs' counsel conceded that only the corporate plaintiff and the Pykes could claim damages for loss of property of value. No claim under this head is being pursued by the Pykes.

8 He contended that the testimony of the appraisers could also be relevant to the issue of non pecuniary general damages for the individual plaintiffs but having heard it I conclude it is not relevant to that head of damages.

The Court went on to assess non-pecuniary damages for the individual plaintiffs. There were a number of factors which distinguished the damage to each individual plaintiff, such as the frequency and degree of the intensity of the odour on their property, the frequency and time of day they spent on the property, the extent to which their activities were disrupted, and the Court's assessment of the extent to which each was personally affected taking into account their physical and psychological persona. The Court awarded damages ranging from $7,500 (approximately $11,000 in 2021 dollars) to $35,000 (approximately $51,300 in 2021 dollars):

What factors are relevant to the assessment of non pecuniary general damages in nuisance

19 Nuisance is actionable because it is an unreasonable interference with the use and enjoyment of a plaintiff's land.

20 The caselaw indicates that in assessing damages the courts consider these factors: the frequency, degree and length of the interference; its effect on the health and comfort of the plaintiffs while on the land; the effect on the plaintiff's enjoyment of the land; the effect on the plaintiff's activities on the land.

[...]

50 There are a number of factors which distinguish the damage to each plaintiff. Some of the more significant are these: the frequency and degree of intensity of the odour on their property, the frequency and time of day they spent on the property, the extent to which their activities were disrupted, my assessment of the extent to which each was personally affected taking into account their physical and psychological persona. I found no special vulnerabilities which would make the type of impact they suffered unforeseeable and therefore not compensable.

51 As a general approach I have grouped the plaintiffs in terms of the frequency and intensity of odour on their properties. Then I differentiated among those in the group by considering the extent of their exposure; for instance, some were away at work in the daytime, others were at home most of the time, the Pykes moved away before the end of the five year period, Mr. Donnison and Mr. Chapman changed their life styles during the five year period. Then I tried to adjust these figures to take into account all the other factors.

52 I have taken into account only the findings I made in my earlier reasons which I shall not repeat and the additional testimony of the plaintiffs which I heard on the resumption of the trial.

53 I assess the non pecuniary general damages of the plaintiffs for the approximately five years of odour from the fall of 1994 to November 23, 1999 as follows:

Jean Gardner$35,000

Bernice Gardner$35,000

Patricia Pyke$20,000

Craig Pyke$10,000

Donald Walker$15,000

Leslie Walker$15,000

Ron Chapman$12,000

Erlyne Young$18,000

Gary Young$13,500

Ken Giles$10,000

Sally Giles$20,000

Margaret Davis$20,000

Christa Downes$15,000

Chris Downes$ 7,500

Karen Donnison$ 7,500

Gordon Donnison$10,000

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