Although the noise, dust or vibrations coming from a neighbouring property may not be violating any environmental or municipal regulations, property owners affected by these issues may still be able to bring a successful nuisance claim, says Toronto civil litigator Patricia Virc.
“A fact scenario that might give rise to a claim in nuisance resulting in an award of damages or an injunction would be if a property owner has something going on around, adjacent, near, his property that unreasonably and substantially interferes with his reasonable use and enjoyment of his property,” says Virc, a lawyer with Steinberg Morton Hope & Israel LLP.
The type of nuisances that generally give rise to an actionable nuisance claim, says Virc, are vibrations that damage property, excessive and unreasonable noises and even smells, water, dust and garbage. These issues, she says, don’t just affect residential property values, but can also affect a business’ bottom line.
“It’s not necessarily just householders that can have their enjoyment of their property disrupted by these things, it could be a business, also, not just being made uncomfortable but also possibly losing business – there may be actual economic harm,” she says.
However, says Virc, if the neighbouring property is in compliance with regulations, property owners often think they have no remedy, or will end up not being compensated to the extent they could have been.
“As they go through, say, for example, the environmental review or the approval by the municipality respecting re-zoning or whatever, they think maybe they don’t have a remedy because they didn’t get any relief from these bodies, but that’s not the case,” she says.
“There may be an actionable nuisance notwithstanding regulatory compliance and municipal approvals. Now, the approvals may be considered as evidence as to what level of interference is reasonable and tolerable, but it’s not a complete answer to the question,” she adds.
For property owners, evidence of a nuisance may include the fact that an insurer no longer wants to insure you, your insurance rate has gone up, or you are unable to finance your business or property.
“Then you have actual economic damage and fairly good proof that there is a real nuisance next door,” says Virc. Some owners may also need to get expert opinions or appraisals of their property’s value, she adds.
In some cases, Virc says a property owner’s nuisance claim may inspire the individual or the corporation creating the nuisance to buy up the adjacent properties, if they cannot modify the nuisance and if the cost of buying the affected properties is a reasonable cost of doing business. The other solution, she says, is to seek a permanent injunction, which would prevent the party creating the nuisance from continuing with the activity.
If a property-owner’s preferred remedy is injunction, says Virc, it is important to object to the nuisance before the other party has too much investment and momentum.
“Delay by the complaining party in taking action in respect of the alleged nuisance, combined with the ongoing investment and commercial activity of the party against whom an injunction is sought, may argue powerfully against the grant of injunctive relief. The court may then say ‘we’re just going to give you damages, we are not going to give you an injunction because the development of what was going on next door continued without you raising it as a problem.’”
The argument against awarding damages in lieu of an injunction where the offending party is operating for profit is to deter the powerful from subjugating the weaker to their business interests, says Virc.
In denying an injunction and assessing only damages, the court essentially sanctions the wrong-doer’s acts and allows him to purchase his neighbour’s rights, she adds.
“For that reason, I would say it’s good to put your neighbour on notice early on, before they’ve made a significant investment and a lot of changes have been made.”