2012 QCCQ 13182, 2012 QCCQ 13182

Smith c. Pépinière Pierrefonds inc. 2012 QCCQ 13182 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-119519-090 DATE: DECEMBER 4, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ HENNING SMITH Plaintiff v. PÉPINIÈRE PIERREFONDS INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $7,000 for excessive noise and dust produced by Defendant in the course of its business.

THE CONTEXT AND THE RELEVANCES [ 2 ] In March 2003, Plaintiff and his family moved into an apartment, located at […], in Ville Saint-Laurent Montreal (the residence). [ 3 ] Defendant operates its business next to Plaintiff’s backyard and Plaintiff does not deny noticing the activities of Defendant prior to moving. [ 4 ] However, in the spring of 2006, Plaintiff refers to a dramatic increase of Defendant’s activities.

From then on, there was heavy equipment and numerous trucks moving around before 7:00 a.m. and even after 10:00 p.m., every day of the week and on a regular basis. [ 5 ] Plaintiff’s first complaints to the Saint-Laurent Borough regarding noise and dust began in 2006 but became more regular in the spring of 2008.

An exchange of e-mails between Plaintiff and the Saint-Laurent Borough for the period between May and December 2008 shows the following examples of Plaintiff’s complaints: − Defendant is now collecting garbage and storing it in an open pile only feet away from residential buildings; − constant operations of numerous tractors from 7:00 in the morning until dark; − beginning of Defendant’s operations at 6:35 a.m. with dump trucks and tractors. [ 6 ] In the spring of 2009, Plaintiff’s complaints, which included pictures of Defendant’s activities, became more organized: − mouth full of sand after spending only three minutes outside; − important and numerous piles of dirt of different grades in Defendant’s backyard; − large tractors, forklifts and steady stream of dump trucks throughout the day; − 200 pallets of bricks and paving stones; − garbage and dust blowing everywhere; − constant noise. [ 7 ] These complaints are repeated during the following months as Plaintiff became more and more annoyed.

His description of Defendant’s activities to the Saint-Laurent Borough reads as follows: − trucks lined up from 6:00 a.m., seven days a week, 12 months a year operating at all hours; − three large tractors, a half-dozen forklifts, steady stream of dump trucks refilling their nine large bays of dirt; − one pile of collected garbage;

− noise caused by dump truck drivers shaking off the loose soil by hitting their truck bed with sledgehammers; − the tractors clang their shovels to remove loose dirt; − car horns being used constantly; − dropping of over 400 lbs of large stones right in the back of his backyard, shaking the foundation of his residence; − cars have to be hosed off and windows cleaned every week; − his children cannot play outside because of the dust clouds; − he cannot enjoy his backyard nor his barbecue; − windows have to remain closed; − his garden furniture is useless. [ 8 ] Plaintiff became frustrated by the inaction of the Saint-Laurent Borough and on September 1 st , 2009, he sends Defendant a letter of default referring to the damages resulting from the excessive dust and noise produced by Defendant’s increased operations. [ 9 ] Plaintiff had to deal with an anxiety issue throughout 2009 and finally decided to move out. [ 10 ] In addition to his testimony, Plaintiff files Statements in Lieu of Testimony from the following witnesses, their statements can be summarized as follows: − Chantal Cournoyer-Soucy : She gave her declaration on October 9, 2009 and complained of the early morning noise on weekends and weekdays.

She also refers to an excessive level of dust, indicating that if she leaves her windows open, the dust inside is more abundant. This dust however is not comparable to the dust she has to deal with outside. − Bradly Owen Allen : He gave his declaration on October 7, 2009 and complained of excessive dust and poor air quality as well as excessive noise. He refers to the fact that Defendant has multiplied its piles of earth for sale to landscaping companies. On windy and dry days in the spring, clouds of black dust are blown from Defendant.

Sidewalks and balconies are filled with dust within two days; fences, cars, etc. collect a visible film of fine black dust. In addition, noise created by Defendant’s operations has steadily escalated in the last two years and has surpassed the point of reasonableness. Trucks come and go from 6:30 a.m., seven days a week, all day long. Stone deliveries give the impression of an earthquake. He considers that it is impossible to relax on his balcony or in his backyard due to the noise from Defendant. − Victor Lee : He gave his declaration on October 7, 2009 and lived on Bonin Street for five months.

He noticed that the windows were, within a month, covered in dirt. − Adam Gauvreau : He gave his declaration on October 8, 2009. He mentions two problems: dust and noise and the fact that the windows get dirty much faster. Except on Sundays, work at Defendant starts at around 7:00 a.m., even on Saturdays. It is not possible for him to open his windows because of the noise. − Jenny Coderre : Plaintiff’s spouse gave her declaration on October 6, 2009. She complains of excessive noise, pollution and dust. Her children are scared by the deafening bangs from the back slap of the dump trucks unloads.

She cannot enjoy peaceful time in her backyard, considering that there is constant roaring and banging. She will be moving in November. She finds black dust on every surface outside and did not eat outside in the previous summer and is concerned about her children playing outside in this big cloud of dust, especially her son who has asthma. In addition, Defendant has soil mixed with peat moss and the neighbours have no protection whatsoever with respect to those products. [ 11 ] Plaintiff also presented the testimony of Mr. Lang who has lived on Bonin Street for the last 12 years. From Mr.

Lang’s standpoint, Defendant was a big nursery with green houses when he first moved in the area and there were small piles of soil in Defendant’s backyard with limited activities. [ 12 ] Mr. Lang noticed an increase in Defendant’s activities, more particularly over the last six or seven years. He has seen more trucks in Defendant’s backyard, more activity, more equipment, etc.

He complains of noise and dust and explains that he cannot open his windows during the summer because he does not want his family and himself to breathe the air filled with dust, peat moss and other chemicals. [ 13 ] He tried to find a solution with the Saint-Laurent Borough, but was unsuccessful. Mr. Lang explains that recently, in 2010, Defendant installed covers on the huge piles of soil. He suggests that a wall be built as a solution for the neighbourhood, to the dust and noise issues. [ 14 ] Mr.

Di Marco, Defendant’s President, explains that prior to Defendant’s activities, another garden center was in operation since 1956 in the same location. In 1995, promoters began building residences around the garden center and Defendant took over the garden center’s operations in 1996. At that time, Defendant continued the regular activities of the previous garden center: the sale of trees, plants, flowers, earth, stones, sand, etc. Defendant’s turnover, at the time was approximately $2M and increased up to $4M in 2012 as the activities rose as well. [ 15 ] According to Mr.

Di Marco, 65% of sales take place between April 15 and June 30 (the high season). From July to September, as well as in the fall, the activities slow down and Defendant is closed from January to March. The sole activity, which remains ongoing

during the winter, is snow removal and use of salt for clients. [ 16 ] Mr. Di Marco explains that he was first informed of the complaints from Defendant’s neighbours in 2009. He immediately offered his cooperation and decided, in addition to the use of the sweeper on a daily basis at Defendant, to water down the backyard three times a day to keep the dust down and to minimize the inconveniences for neighbours. [ 17 ] Defendant never received a fine nor was informed of a violation of any by-law by the Saint-Laurent Borough or the City of Montreal. Mr.

Di Marco explains that the business hours are from 7:00 in the morning until 10:00 at night, six days a week, except for high season where Defendant is open on Sundays. [ 18 ] From his standpoint, the equipment used by Defendant has not changed over the years and although he understands the complaints filed by Plaintiff and the statements of other witnesses, he is of the opinion that noise and dust nuisance can be interpreted differently from one person to another. [ 19 ] In that respect, he files Statements in Lieu of Testimony from Mr. Guitard and Mrs.

Pambrun, who are tenants in one of his buildings located on Bonin Street. These statements dated September 6, 2012 refer to the fact that the area is "a little dusty sometimes. But they (Defendant) are trying their best by watering and sweeping everyday with a sweeper. So I have no problem living here. If I did, I would move". Also, they indicate that when they moved into the area, they knew of Defendant’s activities and are not suffering more inconvenience related to noise and dust than what they expected. ANALYSIS [ 20 ] It is Plaintiff’s contention that

Section 976 C.c.Q. , which reads as follows, should be applied by the Court together with the Supreme Court ruling in the case St.Lawrence Cement [1] . 976.

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 custom. [ 21 ] The dust and noise issues Plaintiff complains of are, according to him and his neighbours, beyond the limit of tolerance and therefore damages should be allowed to compensate for the loss of enjoyment of his residence. [ 22 ] The Court has reviewed a case decided by the Quebec Court of Appeal [2] and the jurisprudence which followed the St.Lawrence Cement ruling and considers most appropriate to refer to the following criteria in order to determine if the annoyances suffered by Plaintiff are beyond the limit of tolerance: − the location of Plaintiff’s residence versus Defendant’s activities; − the anteriority of Defendant’s activities versus Plaintiff’s move on Bonin Street; − the reasonable expectations of Defendant’s neighbours; − the legality of Defendant’s activities; − the duration of the inconveniences; − the fact that the inconveniences are occasional or isolated versus ongoing on a regular basis all year long; − the gravity of the inconveniences; − the behaviour of Defendant when informed of complaints; [ 23 ] It is the Court’s understanding that when Plaintiff first moved into his residence, he knew that a garden center was in operation next to his backyard.

The proof also reveals that although Plaintiff noticed a dramatic increase of Defendant’s activities in the spring of 2006, Plaintiff began to complain regularly two years later, between May and December.

In the spring of 2009 and during the following months, Plaintiff’s frustration reached another level. [ 24 ] The Court finds that in view of the proof offered, the normal inconveniences related to Defendant’s activities, which were expected and accepted by Plaintiff in 2003, have increased to a point that they became excessive. [ 25 ] However, the proof shows that the serious inconvenience began in the spring of 2008 and continued until the fall of 2009, at which point Plaintiff decided to move out. [ 26 ] Finally, the Court must emphasize Defendant’s prompt cooperation in the summer of 2009 when he was first informed of the complaints. [ 27 ] In view of the foregoing and considering the case law [3] , the Court grants Plaintiff $3,000 for the inconvenience of dust and noise suffered between the spring of 2008 and the fall of 2009.

IN VIEW OF THE FOREGOING,THE COURT: GRANTS, in part, Henning Smith’s claim against Pépinière Pierrefonds inc.; CONDEMNS Pépinière Pierrefonds inc. to pay Henning Smith an amount of $3,000 plus interest at the legal rate together with the additional indemnity foreseen by

Section 1619 C.c.Q. , as of October 9, 2009;

THE WHOLE, with costs ($157). ______________________________ JULIE VEILLEUX, J.C.Q. Dates of hearing: July 11 and October 23, 2012