COURT OF APPEAL FOR ONTARIO DATE: 20220524 DOCKET: C68811 & C69166 Strathy C.J.O., Sossin and Favreau JJ.A.

BETWEEN

1386444 Ontario Inc. and Surinder Singh Binepal Applicants (Respondents)

and

2331738 Ontario Ltd. operating as Century Cabinet Doors Inc. , Harpal Singh Bhamra , Amanpreet Kaur Bhamra , and Peel Condominium Corporation No. 473 Respondents ( Appellants )

Ajay Duggal and Maneesh Mehta, for the appellants James S.G. Macdonald and Melisa Rupoli, for the respondents

Heard: May 16, 2022

On appeal from the judgments of Justice Heather A. McGee of the Superior Court of Justice, dated October 21, 2020, with reasons at 2020 ONSC 6402 , and February 22, 2021.

REASONS FOR DECISION

[ 1 ] We dismissed the appeal with reasons to follow. These are our reasons.

Background

[ 2 ] The appellants, operators of a cabinet-making business, seek to set aside a permanent injunction enjoining them from causing a nuisance to an adjoining business, the respondents’ law offices. The nuisance was caused by the noise generated by the appellants’ industrial saws and machinery.

[ 3 ] The parties occupy adjacent units in a mixed-use condominium complex which consists of 40 commercial units. The respondents brought an application pursuant to ss. 134 and 135 of the Condominium Act, S.O. 1998, c. 19, for an order enforcing compliance with the corporation’s rules and enjoining the appellants from causing a nuisance (described by witnesses as “loud, vibrating and shrieking noises”) in the operations of their business.

[ 4 ] The motion for an injunction initially came before the court below on March 11, 2020. The parties agreed to a timetable for the filing of materials, cross-examinations and factums, and the motion was scheduled to be heard on September 2, 2020.

[ 5 ] The appellants (respondents on the motion) failed to file any material, including a factum, by September 2, 2020, refused to participate in cross-examinations, even by remote means, and made no attempt to vary the timetable order. The presiding judge granted a further adjournment but issued an interim interlocutory injunction restraining the appellants from using the machinery in question between 11:00 a.m. and 5:00 p.m. on weekdays (the “September 2, 2020 order”).

[ 6 ] On September 23, 2020, the Divisional Court dismissed a motion for leave to appeal the September 2, 2020 order.

[ 7 ] The motion for a permanent injunction came before McGee J. (the “Application Judge”) on October 5, 2020. She found that the noise emitted from the appellants’ premises was “a significant and unreasonable nuisance that has and continues to interfere with [the respondent Mr. Binepal’s] use and enjoyment of his condominium unit” and that the appellants had breached s. 135 of the Condominium Act. She found that the expert evidence, including reports from experts on behalf of both parties, clearly demonstrated an “unacceptable level of noise.” She also found that the appellants had failed to demonstrate that the nuisance had been mitigated, “despite specific and workable recommendations by a number of skilled professionals.”

[ 8 ] The Application Judge, recognizing the significant consequences of a permanent injunction, particularly for a business during the pandemic, gave the appellants “one final opportunity to mitigate the noise nuisance caused to the [respondents]”, continued the interim injunction granted by the September 2, 2020 order and adjourned the matter to January 22, 2021, to give the appellants an opportunity to demonstrate that the noise could be brought to a level that would abate the nuisance.

[ 9 ] On the eventual return of the matter, heard on February 12, 2021, the Application Judge found that the appellants had failed to take the opportunity to abate the nuisance by reducing the noise to acceptable levels. They had commissioned an expert report but had not produced it. The respondents’ expert report demonstrated that the noise level measurements were consistent with prior results and “remained significant and intrusive.”

[ 10 ] The Application Judge found that the appellants “[continue] to vigorously operate in disregard of [the respondents’] rights.” She found that injunctive relief was the only appropriate remedy and that in the absence of any efforts by the appellants to mitigate the nuisance, the respondents would suffer irreparable harm. She granted a permanent injunction restraining the operation of the machinery between 9:00 a.m. and 5:00 p.m. on weekdays. She left it open to the appellants to move to vary the order if they could demonstrate that their operations brought the noise level within acceptable limits.

Analysis

[ 11 ] We do not find it necessary to address each of the many errors asserted by the appellants. The principal issues are discussed below.

(1) The existence of a nuisance

[ 12 ] Counsel for the appellants conceded in his submissions that the noise was “substantial” but argued that there was no evidence that it was an “unreasonable” interference with the respondents’ business. This, he submits, was a palpable and overriding error in the assessment of the evidence. He also submits the Application Judge’s reasons were insufficient.

[ 13 ] We do not agree. There was ample evidence to support the existence of a nuisance. Both the respondent Mr. Binepal, who was the principal of the numbered company, and his former tenant deposed as to the loud sawing and “shrieking” noises that emanated from the appellants’ premises and made it impossible to meet with clients, have conversations or conduct their businesses. The appellants’ own expert agreed with the respondents’ experts that the noise levels were above those recommended for an office space and required remedial measures. The Application Judge’s reasons reveal that she fairly assessed this evidence.

(2) Failure to apply the legal test

[ 14 ] The appellants submit that the Application Judge also erred in law by failing to undertake the necessary balancing exercise to determine whether the interference was unreasonable. She failed to analyze any of the factors identified in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, at para. 53, including the character of the neighbourhood, the severity of the harm, the utility of the defendant’s conduct and the sensitivity of the plaintiff.

[ 15 ] We do not accept this submission. The Application Judge expressly cited to Antrim and noted that the reasonableness analysis looks to whether the interference was unreasonable in all the circumstances. As was noted in Antrim itself, at para. 54, a court is not required to specifically enumerate any or all of these factors as long as there is an appropriate weighing of the gravity of the harm against the utility of the defendant’s conduct. The Application Judge was plainly aware that the relevant municipal zoning permitted both commercial and industrial uses and that the condominium complex had both types of uses. According to the evidence, the noise made it impossible for the respondents to conduct business. This placed the harm at the very high end of the severity scale. There was no evidence that the plaintiff was unusually sensitive, and the defendant’s conduct had no inherent utility other than as a commercial or industrial operation. The outcome of the balancing exercise was obvious.

(3) Failure of respondents to reduce the effects of the nuisance

[ 16 ] We reject the appellants’ submission that the respondents should have taken measures to reduce the impact of the noise in their premises – for example, by adding soundproofing to the walls and ceilings. The obligation to abate a nuisance falls on the party that created the nuisance – not on the victim of the nuisance. The Application Judge did not impose a mandatory injunction to remedy the issue or place an onus on the appellants here, as they allege. It was open to the appellants to abate the nuisance, something they failed to do despite being given several opportunities.

(4) The defence of statutory authority

[ 17 ] The appellants rely on the defence of “statutory authority”. They contend that because the condominium was in an area zoned for both commercial and industrial uses, its use for industrial or manufacturing purposes was unconstrained and was beyond the reach of the law of nuisance.

[ 18 ] The appellants’ reliance on statutory authority is misplaced – the creation of the nuisance was not the “inevitable result” of the permitted operation of an industrial business. The zoning by-law, which permitted both industrial and commercial uses, did not expressly or impliedly authorize the creation of a nuisance: see e.g., Sutherland v. Canada (Attorney General), 2002 BCCA 416, 215 D.L.R. (4th) 1, at paras. 63-70, leave to appeal refused, [2002] S.C.C.A. No. 385. While the by-law permitted industrial uses, it did not authorize any or every industrial user to commit a nuisance in the operation of the business it was permitted to operate. The point is obvious, and we reject the appellants’ submissions that the Application Judge’s reasons were deficient because they failed to address it.

Disposition

[ 19 ] For these reasons, the appeal is dismissed, with costs to the respondents in the amount of $20,147.57, inclusive of disbursements and all applicable taxes.

“G.R. Strathy C.J.O.”

“L. Sossin J.A.”

“L. Favreau J.A.”