ONSC 2220

BARRIE COURT FILE NO.: 11-0710

DATE: 20120411

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CORPORATION OF THE TOWNSHIP OF RAMARA

Applicant

– and –

DARCEY PAUL MULLEN

Respondent

M. Miller, for the Applicant

C. Manners, for the Respondent

HEARD: March 28, 2012

HEALEY, J.:

NATURE OF THE APPLICATION

[1] The Corporation of the Township of Ramara ("the Township") seeks a permanent injunction restraining the respondent from operating an outdoor wood burning furnace on his property. This application is made pursuant to section 440 of the Municipal Act, 2001, S.O. 2001, c. 25, which permits the Township to apply to restrain by-law contraventions.

THE BY-LAW

[2] The by-law in question, being By-law No. 2011.33 (“the By-law”), was passed by the Township to regulate outdoor wood burning appliances. It came into effect on May 4, 2011. The provisions of the By-law that apply to this application are sections 2.1 and 2.2, as follows:

2.1 No person shall install, operate or maintain any outdoor wood burning appliance that does not meet the provisions set out in this By-law.

2.2 No person shall cause or allow emissions of air contaminants from any outdoor wood burning appliance to the outdoor atmosphere that unreasonably interferes with the normal enjoyment of human life and property, including causing a visible plume migrating from an outdoor wood burning appliance and contacting buildings, structures and persons on adjacent properties; and excessive smoke, order, dust, airborne sparks, embers or impaired visibility on a public road.

[3] The By-law provides for the imposition of fines of up to $250 for contraventions. The respondent has never been charged under the By-law despite inspections by the Township’s by-law enforcement officer.

ISSUES

[4] The issues to be determined on this application are:

1. Whether the operation of this outdoor furnace "unreasonably interferes with the normal enjoyment of human life and property" for the respondents’ neighbours; and

2. Whether the Township should be granted a permanent injunction to restrain the respondent from using the outdoor furnace.

FACTS

[5] The respondent’s outdoor furnace (the “furnace”) has been in operation for approximately ten years. He has owned the rural land on which it is installed, a 98 acre property, since 1999. The furnace is used to provide heat and hot water for the residence located on the property, currently occupied by the respondent’s parents. It is located approximately 18 feet from the back door of the residence, primarily for ease of loading wood into the furnace in the winter.

[6] To the east of the respondent’s property lies the neighbouring lands owned by Murray Doyle as the closest neighbour, and then Dennis Pitkin, whose property lies to the east of Doyle’s. Both the Pitkin and Doyle residences lie downwind to the prevailing westerly wind. Doyle’s residence is located approximately 152 feet from the furnace. The Doyle’s deck and back yard is situated in a slightly north easterly direction from the furnace. In turn, there is a distance of approximately 427 feet between the furnace and the Pitkin residence. The Doyles and the Pitkins have owned their properties since the 1980s.

[7] In addition to the furnace, the respondent’s residence is equipped with an electric furnace and water tank, and a propane fireplace insert. All are operational. The outdoor furnace is operated year round, 24 hours a day, its level of activity determined by the household’s heating needs.

EVIDENCE OF INTERFERENCE

Previous complaints to the Township

[8] Before the passage of the By-law, Mr. Doyle made numerous complaints to the Township about the emissions from the furnace, in particular, excessive smoke interfering with his use and enjoyment of his property. Because the Township did not previously regulate such furnaces, the Doyles had no recourse other than through a civil action. Mr. Doyle’s evidence is that before the By-law was passed, he believed that there was nothing he could do about the smoke. This belief was placed into question by contrary evidence, but nothing turns on this fact.

[9] Just before the By-law came into effect, the Township’s by-law enforcement officer, Jim Newlands, met with the respondent’s father to explain the contents of the new By-law. On that day the furnace was in full operation and Mr. Newlands observed that the smoke was barely visible, even though he was standing nearby. Mr. Newlands confirmed that, had the By-law been in effect that day, there would have been no breach of its provisions.

[10] Mr. Doyle made further complaints following the institution of the By-law, which were investigated by Mr. Newlands.

Evidence of the By-law Enforcement Officer

[11] Mr. Newlands next visited the respondent’s property on June 7, 2011 in response to a complaint that the smoke was intolerable. It took Mr. Newlands approximately 20 minutes to reach the respondent’s property from the time he received the call. On that day Mr. Newlands did not observe any excessive smoke, but rather, a very small plume of white smoke. It was Mr. Newlands evidence that the By-law was not being breached by the operation of the furnace on June 7, 2011.

[12] Mr. Newlands next attended at the respondent’s property on June 9, 2011 in response to another complaint from Mr. Doyle. He observed the furnace to be running, with light smoke flowing toward the west, away from the Doyle property. He confirmed that the amount of smoke was not a cause for concern.

[13] A further complaint was received on June 19, 2011. At that time a series of photographs were taken by Mr. Doyle of the furnace and the quality and direction of the smoke. The photographs appear to have been taken in sequence, based on the time stamp in the bottom corner of the photographs produce to the court. On his cross-examination Mr. Newlands stated that the photographs depicted "excessive visible smoke" for a limited period of 3 minutes, but that only one of the 12 photographs showed smoke on the Doyle property.

[14] Mr. Newlands was also asked, on cross-examination, to comment on photographs taken by Mr. Doyle that pre-date the By-law, as well as another series of photographs taken on June 5, 2011. His observations are of limited usefulness to the court given that he was not asked whether the photos were an accurate depiction of what he observed, and because he is not qualified to give opinion evidence about the deficiencies or distortions of photographic evidence.

[15] Mr. Newlands confirmed that on the three occasions that he observed the furnace since the passage of the By-law, it had been operating within the provisions of the By-law.

Doyle’s Evidence

[16] As indicated above, Mr. Doyle took photographs between 2008 and 2010 that show the operation of the furnace. Certain photos, such as one taken on July 21, 2008 and others taken on May 12, 2009, show the furnace emitting thick, dark gray smoke. The respondent confirmed that this will occur as a normal part of the start-up, when the furnace is at a higher temperature and the oxygen content is relatively low, typically when wood is loaded in the furnace and as it begins to carbonize. According to Mr. Mullen, this process is called pyrolysis, lasts only a few minutes, and does not necessarily occur every time wood is loaded in the furnace. Other photographs, including those taken on June 5 and June 19, 2011, show smoke emanating from the furnace in varying degrees of magnitude and color.

[17] Mr. Doyle was raised on a farm and has lived all of his life within 5 miles of his current residence. It is his evidence that he understands rural life. Mr. Doyle testified that the smoke and its smell interferes with his enjoyment of his life and property because it gets into his house, his car and his clothes. It drives him and his wife out of their yard, which has an outdoor patio, and deters them from outdoor entertaining or pursuits such as gardening and yard work. They have had to abandon working in their yard or cutting the grass at times, and Mr. Doyle has been forced into his shop to work on many occasions because of the smoke. He describes the smoke as being invasive and inescapable, and, figuratively, holds him and his wife as prisoners in their home. It prevents them from doing things that others take for granted, such as leaving their windows open or using their clothesline. It is also unpredictable, in that when the prevailing westerly wind blows the smoke over his house and property, they need to go inside and close all the windows and doors in an attempt to keep the smoke out on an otherwise beautiful day. If the smoke gets into their home, it takes a long time to dissipate when all of the windows must remain closed. When the air is heavy in the summer months, his evidence is that the smoke hangs closer to the ground and can be literally choking at times. He and his wife have been woken at night by the smell of smoke when they have attempted to keep one of their bedroom window open; another faces west and is never left open at night because of the smoke. Mr. Doyle testified that the inability to open their windows causes them to bear the financial burden of having to run air conditioning when they would otherwise be enjoying the fresh air from the outside.

[18] Mr. Doyle gave evidence that the furnace smoulders constantly and is always emitting some odour and smoke even when not “belching plumes of acrid smoke”. He indicated that his only defence is a favourable wind, but otherwise he and his wife are at the mercy of the wind. He testified that he finds the smoke irritating to his eyes, nose and throat, causing him to cough and his eyes to water. Another aggravation caused by the smoke relates to their young granddaughter, who has undergone a heart operation to repair holes in her heart. The Doyle’s daughter and son-in-law are reluctant to bring her to her grandparents’ home because of the smoke exposure. The Doyles are also reluctant to invite friends over because they do not want to expose them to smoke. Finally, Mr. Doyle indicated that the smoke has a stressful effect, as it always has to be on his mind. He gave the example of when he and his wife are going out, they must remember to shut their windows before they leave. Mr. Doyle's evidence was that the effects of the smoke have been felt by him over the ten-year period on hundreds of occasions.

Pitkin Evidence

[19] It was urged on this court that it should reject all of the evidence given by Mr. Pitkin because his cross-examination bore out that he had given vastly overstated evidence in his affidavit, in particular about the respondent burning animals, garbage and railway ties. It is clear from his cross-examination that Mr. Pitkin has never observed the respondent burning such things, even though he deposed that he had made such observations. I do not accept the submission that Mr. Pitkin was deliberately misleading the court. To the layperson, the difference between direct and circumstantial evidence is often a distinction without a difference until fully explained, and clearly Mr. Pitkin made observations from which he jumped to the conclusions stated in his affidavit. Yet this is not a situation where the evidence presented to the court was a complete fabrication without even a circumstantial foundation. In the latter circumstance, it is usually appropriate to consider a witness’ entire testimony as wholly discredited, in the former, which is the circumstance before this court, some or all of the witness’ evidence may still have utility.

[20] A judge can of course accept or reject some or all of a witnesses’ testimony. I do reject Mr. Pitkin’s evidence regarding the burning of those items, but accept his more general evidence regarding his own experience of the smoke because of its close similarity to and corroboration of that of his neighbour, Mr. Doyle. Specifically, Mr. Pitkin’s evidence is that when the wind blows in the direction of their home, he and his wife cannot have their windows and doors open, nor do they feel that they can sit on their deck, out by their pool or entertain friends or family outside. They cannot hang laundry out to dry without their clothes absorbing the smell of smoke. Like the Doyles, even after they close their windows the smell of smoke lingers in their home. The smoke diminishes their enjoyment of their yard and home, and he and his wife feel that they have limited use of the outdoors at their property while the furnace is in operation.

Mr. Mullen’s Evidence

[21] Mr. Mullen testified on his cross-examination that the stove is in operation 24 hours a day, 7 days a week, when the furnace requires draw from heat for it to turn on. When the furnace and the house calls for heat, it sends a message to the furnace to turn on the blower system, adding oxygen that creates the smoke. The furnace does not run continuously, but is prepped and ready to be turned on.

[22] As earlier indicated, Mr. Mullen confirmed that the dark smoke emitted from the furnace occurs in the normal course of its operation, lasting 2 to 5 minutes, with the smoke then becoming less dense thereafter. The makeup of the smoke depends on the quantity, quality and moisture content of the wood, the outdoor temperature and the temperature of the fire, among other variables. He acknowledged on cross-examination that sometimes the wood that he uses has been known to "(throw) a lot of smoke". Mr. Mullen is not concerned about the smoke created by the operation of the stove, although during his cross-examination he acknowledged that he sometimes closes a window if the smoke is blowing into the house. He denied that the smoke otherwise bothers him. It is his evidence that the furnace issues little or no visible smoke the vast majority of the time, and he strongly disagrees that smoke from his furnace is unreasonably interfering with the Doyle’s or the Pitkin’s use and enjoyment of their property. From his viewpoint, he believes that Mr. Doyle is intolerant of the realities of living in a location surrounded by working farms, as in the past he has complained to the Township about a controlled burn on the respondent’s land undertaken by his tenant farmer, and has complained to the respondent about the flies that his horses attract, which Mr. Doyle denies.

[23] I accept Mr. Mullen’s evidence that he has never burned animals, tires, garbage or railway ties in the furnace.

Photographs

[24] It is expected that an outdoor furnace will produce smoke in the course of its normal operation and perhaps interfere with the use and enjoyment of neighbouring property, and the By-law acknowledges this by only prohibiting use that can be deemed to be unreasonable interference. As referred to earlier, over the years Mr. Doyle has taken photographs in an attempt to document what he considers to be unreasonable interference.

[25] Taking the photographs at face value, there are only 4 photos[^1] out of the 67 filed with this application that I assess as showing smoke passing the property line that divides the Mullen and Doyle properties on a north/south axis. Of the remaining 63, the “worst” depict what Mr. Mullen confirms is the normal start up effect, showing billowing emissions of dark smoke rising and clouding the farmyard surrounding the furnace. Others show the smoke rising and dissipating, again in various directions but most often moving in an easterly, south-easterly or southern direction.

[26] The photographs reveal that the persons who claim to be unreasonably affected live in a visually beautiful area of the province, particularly in spring and summer. Enjoyment of that natural setting and its benefits is often one of the main reasons why individuals choose to reside in such locales. In the case of the Pitkins in particular, they have signalled their intention to enjoy the out-of-doors in this setting by residing in a home with a pool and deck. The photographs also show that Mr. Mullen’s farm is a fully operational one, which includes a horse boarding enterprise.

THE LAW

[27] Relying on the case of Geil v. North Dumfries (Township) (2009), 62 M.P.L.R. (4th) 294, 2009 CarswellOnt 4665 (Ct. J.), the Township argues that an interpretation of section 2.2 of the By-law should be judged on a common sense basis through the use of an objective standard. This is not a case where the wording of the By-law is so vague as to defy interpretation. There is nothing technical about its wording, nor are the words "unreasonable interference" incapable of interpretation.

[28] Two civil nuisance cases were relied on by the Township for the purpose of assisting the court with an interpretation of "unreasonableness". The first was Scott v. Pike, 2008 CanLII 11044 (Ont. S.C.), in which the plaintiff sought an interlocutory injunction preventing the defendants from operating an outdoor wood-fired boiler located on their residential property. At paragraph 48, Graham J. quotes from Potts J. in 340909 Ontario Ltd. v. Huron Steel Products (Windsor) Ltd. (1990), 73 O. R. (2d) 641 (H.C.J.) (“340909 Ontario Ltd.”), who stated that "unreasonableness" in nuisance law occurs when the interference in question would not be tolerated by the ordinary occupier. What constitutes "unreasonable interference" is determined by considering a number of factors:

(i) the severity of the interference, having regard to its nature and duration and effect;

(ii) the character of the locale;

(iii) the utility of the defendant's conduct;

(iv) the sensitivity of the use interfered with.

[29] Scott v. Pike also refers to the case of Thomsen v. Greve, 4 Neb. App. 742, 550 N.W. 2d 49, 1996 Neb. App. Lexis 158, in which the court ordered an abatement of a private nuisance caused by smoke emanating into the next-door neighbour's residence from a wood burning stove used for home heating. In that case the court held:

The social value of allowing people to enjoy their homes is great, and persons subjected to odour or smoke from a neighbour cannot avoid such harm except by moving. One should not have to be required to close windows to avoid such harm. On the other hand, aside from the simple right to use their property as they wish, it is difficult to assign any particular social value to the Greve’s wood-burning stove. This method of heating does save on fossil fuels, but assuming that the stove used by the Greves emits foul-smelling smoke, society is certainly blessed if only a few people avail themselves of the opportunity to save fuel by using such stoves. The Greves could avoid invading the Thomsen's property by using other means of heating… We therefore conclude that… the Greves invasion of the Thomsen's land… is unreasonable.

[30] The Township also referred the court to Deumo v. Fitzpatrick (2008), 39 C.E.L.R. (3d) 299, [2008] O.J. No. 3015 (S.C.) (“Deumo”). In Deumo, Ramsay J. refers to the case of Mandrake Management Consultants Ltd. v. Toronto Transit Commission (1993), 1993 CanLII 9417 (ON CA), 102 D.L.R. (4th) 12, [1993] O.J. No. 995 (C.A.) (“Mandrake Management”), in which the same four factors outlined above – locality, severity of harm, sensitivity and utility – are outlined as the factors that a court should weigh in determining a claim of nuisance.

[31] While this application is not a civil nuisance claim, I find that these factors are useful in analyzing the situation in this case, particularly since this By-law was enacted by the Municipality under the powers granted to it under section 128(1) of the Municipal Act. Section 128(1) permits a municipality to prohibit or regulate with respect to public nuisances. The factors listed in 340909 Ontario Ltd. and Mandrake Management require that a court take into consideration each affected person’s interests, and reach a decision that recognizes that living within communities frequently involves competing and incompatible interests and activities. The effects of one individual pursuing such interest or activity cannot be allowed to continue where those effects are objectively intolerable to others, in this case such that they unreasonably interfere with another individual’s reasonable use and enjoyment of his or her property.

ANALYSIS

[32] Unlike more tangible nuisances such as loud noise, or having commercial enterprises operate in contravention of zoning by-laws, smoke is amorphous and transient by nature - a “moving target” - although with lingering effects. For that reason I do not place much weight on the photographic evidence presented in this case; although photographs can be more objective evidence than an individual’s report, photographs are unlikely to be an adequate means of capturing a by-product that alters by the second, is directed by the wind, and which can have a translucence that an ordinary camera may not fully reveal. As indicated above, the bulk of the photos show the smoke hovering on or above the respondent’s property, or apparently passing to the south of the Doyle’s property. Yet it takes little imagination to conclude that smoke of the thickness revealed in many of the photos would infiltrate the surrounding area, and in particular the lands that lie to the east of the respondent’s property and are exposed to the prevailing winds. This case presents the additional fact that the neighbouring properties are located in close proximity to the furnace. The smoke is so thick and dark in some of the photographs that it almost partially or wholly obscures the respondent’s yard, equipment and buildings. It is not believable to this court that smoke of that quality and quantity could regularly dissipate without contacting the close-by properties and being experienced by the neighbouring inhabitants. And there is ample evidence from those neighbours that they have experienced it, in a way that has affected them profoundly, for a prolonged time.

[33] Similarly, the evidence of Mr. Newlands, is likewise of limited usefulness given the nature of this particular nuisance, even though he is tasked with the job of investigating and reporting by-law infractions. The uncontroverted evidence is that the furnace produces significant amounts of dark smoke during its normal start-up, not always to the same extent, but the respondent has confirmed that several of the “worst” pictures are an accurate rendition of what can happen when the furnace draws oxygen. There is no evidence that Mr. Newlands has been on site when that event is occurring. I accept his evidence that the furnace has been operating within reasonable limits on the three occasions that he has been able to personally observe it. If all that came from this furnace were the thin wisps of white smoke that Mr. Newlands has personally observed, this application would be dismissed. However, those are not the facts presented to the court.

[34] Referring to the four factors, the first consideration is the severity of the interference having regard to its nature, quality and effect. I will not review again the evidence of the Doyles and the Pitkins, but their evidence is sufficient to satisfy the court that the ongoing repercussions that the smoke has for their use and enjoyment of their homes and yards is not something that individuals should be required to tolerate on an ongoing basis. However, their evidence is clear that the malodorous and physical effects of the smoke, such as stinging of eyes, is far more obtrusive in the warm weather months than in the winter when they are less likely to be outside or to open doors and windows.

[35] The locale is a mixture of farms and residential homes. Farming operations produce their own noise and smells that are integral to their operation, and rural inhabitants must live with that fact. Conversely, it is a place where individuals live to escape the trappings of towns and cities, including smells and pollutants. Rural residents should not habitually be required to close windows and go indoors to escape smoke pollution in this setting.

[36] The respondent’s use of his furnace has significant utility for him in minimizing heating costs. It is not the only means of heat available, as he does have alternatives installed. There is no evidence that the furnace is necessary for his farm operations, although given that he boards horses I surmise that he heats water for his barn in the colder months.

[37] There is no evidence that the Doyles or the Pitkins are overly sensitive to the realities of rural life, as Mr. Mullen suggests, or that they have exaggerated the effects of the smoke on their use of their own land.

[38] In all of the circumstances of this case, the gravity of the interference to the neighbours’ enjoyment and use of their properties during a portion of the year is outweighed by the utility of the respondent’s use of his furnace. There is a practical answer, however, for preventing this unreasonable interference.

RULING

[39] This court orders that the respondent Darcey Paul Mullen and his tenants, invitees and guests are permanently enjoined from operating the outdoor wood-burning furnace located on his property between April 1 to, and including, October 15, on an annual basis, effective immediately.

[40] If the parties are unable to agree upon costs they may either arrange an appointment through the trial co-ordinator to speak to costs if such procedure is mutually agreeable, or otherwise shall provide written submissions not exceeding two pages in length, plus a Bill of Costs and any offers that they wish the court to consider. Such written costs are to be submitted on a schedule arranged between counsel, but all due by April 30, 2012.

HEALEY, J.

Released: April 11, 2012

[^1]: Application Record, page 45, 60, 72, 76;