Neighbourhood Disturbances

Introduction

As neighbours, we have to be tolerant of normal neighbourhood annoyances. However, there is a fine line between the limit of tolerance depending on the nature, location or customs to which one owes to the other in accordance with section 976 of the Civil code of Quebec (herein after “Civil Code”) and infringing and violating your civil rights.

Even though you might not agree with your neighbor, it is always more practical to attempt to resolve a dispute in an amicable fashion

Définition

The Courts have tried to avoid applying an excessively large interpretation of the “neighbour” concept[1].For instance, the proximity between two or several plots of land is important when qualifying these plots as neighbours. Or, living on the same street or in the same neighborhood can indeed be giving rise to a neighbourly dispute situation.

Having as its main objective to reduce problems resulting from a relationship between neighbours, section 976 of the Civil Code unveils a precise goal that emerges from the principle that the cost and consequences of our own activities must not cause prejudice or suffering to others. Having as starting point the peaceful enjoyment and pacific coexistence between neighbours, the Court asked themselves if a unique regime had been established from the coming into force of the Civil Code in 1994 and its section 976 which reads as follows:

“Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local usage.”

In 2008, the Supreme Court of Canada acknowledges the existence of a responsibility regime based on the annoyances that are “beyond the limit of tolerance”. By adjudicating on the regime, the highest court of the country closes the debate on the effects of ownership pursuant to section 976 of the Civil Code by ruling in favor of a limit to the right of ownership:

« Even though it appears to be absolute, the right of ownership has limits.  Article 976 C.C.Q. establishes one such limit in prohibiting owners of land from forcing their neighbours to suffer abnormal or excessive annoyances.  This limit relates to the result of the owner’s act rather than to the owner’s conduct.  It can therefore be said that in Quebec civil law, there is, in respect of neighbourhood disturbances, a no‑fault liability regime based on art. 976C.C.Q. which does not require recourse to the concept of abuse of rights or to the general rules of civil liability.  With this form of liability, a fair balance is struck between the rights of owners or occupants of neighbouring land»[2].

It is also suitable to specify that the section in the Civil Code binds not only the landlord, but also the tenant, being every person with a right of use of the property including every person living with the landlord [3].

The Court of Quebec recently reinforced the necessity, in order to conclude that we are in presence of a neighbourly dispute in accordance to section 976 of the Civil Code, based on two factors, being the gravity and the repetitive nature of the annoyance[4].

It is suitable to firstly distinguish the misconduct or fault of abnormal annoyances. For example, a neighbour threatening you and being aggressive towards you can be liable in accordance with the regular civil liability regime, subject to the necessary elements of engaging his liability and responsibility.

The advantage of the non-fault liability regime emanating from the article 976 of the Civil Code is that it is not necessary to prove the misconduct or fault of the neighbour, element that is usually essential in the regular civil liability regime. The burden of proof is therefore reduced.

Criteria for neighbourly dispute:

1) Repetitive nature

It is also necessary, in order to conclude to the presence of a neighbourly dispute in compliance with section 976 of the Civil Code, to have a continued and repetitive nature spread over a sufficiently long period of time. Indeed, if this criteria is not met, it will most probably be established that it is an isolated incident subject to the regular civil liability regime. It will then be essential for the plaintiff to prove fault.

2) Gravity

Appreciated by the Court in a subjective manner and in relation with the other factors, the gravity of the annoyance is a central element that will allow them to identify if it is “normal” or “abnormal”. Returning to the principle of a real and serious prejudice, the factor of gravity requires a concrete analysis of the inconvenience based on the nature of the land in the dispute, their situation, the local usage as well as the moment that these annoyances occur[5].

As an example, what will be considered normal in a rural environment might not be necessarily normal in an urban surrounding, which is why the analysis is subjective. A noise disturbance starting early in the morning or strong smells emanating from farms might be considered normal, foreseeable and acceptable in rural areas, but abnormal in urban cities, even though they can be annoying and inconvenient for some.

In addition, it is essential to consider the annoyance suffered in an objective manner in order to evaluate if a reasonable person placed in the same circumstances would find that the situation exceeds the limit of tolerance[6].

Not every inconvenience is considered an inconvenience subject to the liability regime established by article 976 of the Civil Code. The annoyances that are not beyond the limit of tolerance will have to be… tolerated!

Examples of common neighbourly disputes

A common occurrence during the course of the relationship between neighbours may be a property line dispute because either the original boundary has disappeared, been moved, are doubtful or do not exist.

Section 978 of the Civil code states the following:

“Every owner may compel his neighbour to have boundaries between their contiguous lands determined in order to fix the boundary markers, set displaced or missing boundary markers back in place, verify ancient boundary markers or rectify the dividing lines between the properties.”

On other occasions, a neighbour will infringe on the boundary line thereby initiating the cause of the dispute as you suffer irreparable prejudice.

Common examples of disputes between neighbours are noise disturbances, trees, overhanging on your property, illegal views, right of ways and passages, servitudes, common fences boundary lines, waters flowing onto your land, renovation work to the property and limits of property land and boundary lines.

Below is a list of cases that are considered tolerable annoyances:

Case law of tolerable annoyances

  • Smoke caused by a furnace fueled by wood when the amount of smoke is not unreasonable[7].
  • Annoyances emanating from smells and noises considered to be in the norm of a rural municipality where a farm is located[8].
  • The fact of being annoyed by shows presented in open air at reasonable times during summer season[9].
  • Music, noise emanating from cars and smells coming from a waste compactor is considered tolerable when situated next to a shopping mall[10].
  • The sound pollution caused by the fans of the grain silos in a rural surrounding, when the practice respects the standards of the industry and that the farmers collaborated in order to reduce the noise subsequent to the plaintiff’s demand[11].
  • The inconvenient caused by the dust of bauxite and charcoal on a land situated next to a port, considering that the neighborhood in question has an industrial purpose[12].
  •  Annoyances caused by grease smell, noise and fumes emanating from a neighbour restaurant, when the plaintiffs had themselves operated and constructed such a restaurant and considering that the neighbourhood is a commercial area with a high density flow[13]
  • Noises emanating from a shooting range located 150m from a residential property, when the buyer bought the property knowing that there was a shooting range nearby[14].

Below is a list of cases where annoyances go beyond the limit of tolerance:

Case law of annoyances beyond the limit of tolerance

  • The fact, for a neighbour of a golf course, to receive numerous amount of golf balls when the configuration of the course is the cause of this situation[15].
  • The fact, for a neighbour of a golf course, to receive a golf ball that damages his goods, like a window[16].
  • The presence of a considerable amount of bird droppings caused by a neighbour that tries to attract such animals on her property[17].
  •  Intense noise caused by a snowmobile course in proximity of a residential property[18].
  •  Noise of a heat pump waking up kids and forcing the neighbours to close their doors and windows[19].
  •  The disrepair caused by an abandoned property impacting on its neighbour’s paired property[20].
  •  The repeated presence of a disturbing dog on his property[21].
  •  The lighting emanating from a neighbour’s land that is affecting your sleep during the night[22].

What happens in the event of a dispute with your neighbour?

Steps in case of a dispute with your neighbour

If your neighbour does not agree with your position, then the first step is to send a letter of demand requesting that your neighbour conform to your demands, which may include, but not limited to: repairing the dispute in question or obtaining compensation from your neighbour in the event of his/her failure to conform to your demands.

Consequently, if your neighbour fails to conform to your demands or defaults, you may petition the court via a civil action safeguarding your rights or obtain an injunction ordering your neighbour to cease the action that has caused the neighbourly dispute or an injunction order to ensure that the neighbour repairs the problem on an urgent basis.

In the event that the neighbourly dispute is not an urgent matter, you may file a damage claim before the courts to claim a compensatory amount for the prejudice that you have suffered due to the violation of the law and non-conformity of your neighbour.

Conclusion

Let us not forget that the person that wants to assert a right must prove the facts. It is therefore important, in a perspective where you are living a situation that seems to be intolerable and that is caused by your neighbour, to be well represented in order to have the most adequate solution available for you in regards to your situation.

If you are looking for a law firm with reasonable rates, quick and efficient turnaround time for your files and who provides personalized and effective follow-ups, call Schneider Attorneys at (514) 439-1322 ext. 112 or email us at info@schneideravocat.com

The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.

[1] Ouimette c. Canada (Procureur général), 2002 CanLII 30452 (QC CA), par.106

[2] St. Lawrencwe Cement Inc. v. Barrette, [2008] 3 SCR 392

[3]  Terrana c. Piunno, (C.S., 2014-07-09), 2014 QCCS 3295

[4] Plantons A et P inc. c. Delage, 2015 QCCA 7 (CanLII), par. 81 et Vidéotron, s.e.n.c. c. Titus, 2016 QCCS 4202 (CanLII), par. 27 ss.

[5] Gagné, Michel. « Les recours pour troubles de voisinage : les véritables enjeux », dans S.F.P.B.Q., Développements récents en droit de l’environnement (2004), Cowansville, Éditions Yvon Blais, p.69

[6] Entreprises Auberge du parc ltée c. Site historique du Banc-de-pêche de Paspébiac, 2009 QCCA 257

[7] Coulombe c. Ferme Érital, s.e.n.c., 2015 QCCA 6

[8] Lavoie-Thibaudeau c. Côté* (C.A., 1989-03-16), SOQUIJ AZ-89011430, J.E. 89-677

[9] Entreprises Auberge du parc ltée c. Site historique du Banc-de-pêche de Paspébiac, (C.A., 2009-02-09), 2009 QCCA 257

[10] Veilleux c. Fiduciaires du Fonds de placement immobilier Cominar, (C.S., 2001-12-10), SOQUIJ AZ-50108138

[11] Lavoie-Thibaudeau c. Côté, 1989 CanLII 546 (QC CA)

[12] Girard c Saguenay Terminals Limited, 1973 CanLII 1005 (QC CQ)

[13] Gagnon c. Caron, 1997 CanLII 8350 (QC CS)

[14]Lefebvre c. Granby Multi-Sports, 2016 QCCA 1547 (CanLII)

[15]Tremblay c. Club de golf Dolbeau-Mistassini (C.Q., 2009-08-20), 2009 QCCQ 8055

[16] Proietti c. Magnan (C.Q., 1993-10-15), SOQUIJ AZ-93035058, [1993] R.R.A. 852

[17] Descoteaux c. Cloutier (C.Q., 2006-02-17), 2006 QCCQ 1087

[18] Lapointe c. Lac-Sergent (Ville de), 2010 QCCS 4425

[19] Daigle c. Caron, 2006 QCCS 2605

[20]  Fortier c. Laroche, (C.S., 2003-02-03), SOQUIJ AZ-50160769

[21]  Fleurant c. Deraspe, (C.S., 2001-10-26), SOQUIJ AZ-50103389

[22] Dufour c. Parent, (C.Q., 2003-09-24), SOQUIJ AZ-50194030