COURT FILE NO.: 28260-19
DATE: 2020-10-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JJ’S HOSPITALITY LIMITED
Plaintiff
– and –
KAL TIRE LTD.
Defendant
Raivo Uukkivi/Marisa Keating, for the Plaintiff
Courtney V. Raphael/Vedran Simkie, for the Defendant
- and -
MAR-LI INVESTMENTS LTD.
Roberto Ghignone/Christine Kucey, for the Intervener
Intervener
- and -
Elizabeth Ackman/Sean McGarry, for the Third Party
CITY OF SAULT STE. MARIE
Third Party
HEARD: October 5 and 6, 2020
varpio j.
reasons for decision
INTRODUCTION
[1] JJ’S Hospitality Limited seeks an injunction restraining Kal Tire Ltd. (“Kal Tire”) from servicing commercial vehicles at its Sault Ste. Marie, Ontario location. JJ’S Hospitality Limited operates a hotel in Sault Ste. Marie, Ontario known as the Water Tower Inn (“Water Tower”)[^1]. The Water Tower has been open since 1974. It is located on a major thoroughfare, Great Northern Road, which connects to the TransCanada Highway at an intersection just north of the hotel. It is across the street from fast food restaurants, big box-style retail stores and the like.
[2] Immediately to the south of the property is another business property (the “Premises”) occupied by Kal Tire. Kal Tire is a Canadian business that repairs and/or replaces tires. Kal Tire services both retail customers, commercial vehicles (including tractor trailers and dump trucks) and larger vehicles like pavers, etc.
[3] The Water Tower brings this injunction because it contends that the noise caused by servicing tractor trailers on the Premises is such that Water Tower guests whose rooms face the Premises will be materially affected by the noise levels. The Water Tower takes the position that an injunction is appropriate in the circumstances because:
a. Kal Tire is breaching a Municipal by-law as a result of the noises emitted in servicing commercial vehicles;
b. Kal Tire is breaching a Municipal by-law as a result of servicing commercial vehicles on the Premises, which is a contravention of the zoning by-law; and/or
c. Kal Tire is causing a nuisance to the Water Tower.
[4] For the reasons described below, I find that the Water Tower is entitled to an injunction in this matter because Kal Tire’s commercial vehicle operations emit sound that may cause an adverse effect to the Water Tower. As such, an injunction will be ordered on such terms as described in paragraph 99 below.
UNDISPUTED FACTS
Background and Negotiations
[5] Prior to 2019, Kal Tire had a store in an industrial park in Sault Ste. Marie. Kal Tire found that its retail business suffered because of its location and Kal Tire began looking for a new location. In late 2018, Kal Tire became aware of a commercial vacancy immediately adjacent to the Water Tower. In January 2019, Kal Tire delivered an offer to lease to the owner of the Premises, the third party Mar-Li Investments Ltd. (the “Landlord”). The Landlord and Kal Tire ultimately agreed to a lease whereby the Landlord purportedly invested over $1,000,000 in the Premises in order to meet Kal Tire’s needs.
[6] On February 13, 2019, the Landlord applied for a building permit with the City. The Landlord received a building permit on March 6, 2019. The Landlord began working on the Premises in March of 2019 and work was completed by approximately September 2019.
[7] In March of 2019, the Water Tower’s principle, Mr. J.J. Hilsinger, approached the Kal Tire store manager to discuss the Premises. The parties discussed issues such as Mr. Hilsinger’s concerns including possible exterior storage at the Premises.
[8] In the summer of 2019, the Landlord worked with the City to develop a Site Plan Agreement which addressed building permits, property access, parking and the like. During the course of these meetings, the Landlord believed it was in compliance with the relevant by-laws.
[9] On July 22, 2019, a cold storage building was built by the Landlord to assuage certain of Mr. Hilsinger’s concerns.
The Relevant By-Laws
[10] The Premises is zoned as “C-4”, a “General Commercial Zone”. The City By-Law governing the C-4 Zoning was passed in 2005 and describes this General Commercial Zone as follows: “[t]his zone permits a wide variety of commercial uses. The most common of all commercial zones, this classification will permit mixed use building with commercial uses on the ground floor and dwelling units above”. The by-law then lists a variety of “Permitted Uses” in a C-4 zone that include accommodation services, bingo halls, car wash facilities, day care facilities, motor vehicle rental and leasing services, motor vehicle sales and parts dealers, repair and maintenance and other permitted uses.
[11] In that same by-law, the following terms were defined:
1.59 Motor Vehicle Rental and Leasing Services
Establishments primarily engaged in renting or leasing vehicles, such as passenger cars, vans, light trucks, and RV’s, taxi and limousine yards.
Exclusion – The rental or leasing of heavy equipment
1.60 Motor Vehicle Sales and Parts Dealers
Establishments primarily engaged in retailing motor vehicles. Such uses may include the following or similar uses:
• Motor vehicle parts dealers
• Motorcycle, boat, and other motor vehicle dealers
• New and used motor vehicles sales
• Passenger car rental
• Recreational vehicle and trailer sales
Exclusions – Salvage yards, heavy equipment and farm implement sales
[12] It is accepted by all parties that, given the interplay of the C-4 permitted uses and the definitions contained in by-laws 1.59 and 1.60, heavy equipment rental, leasing, sales and parts dealers are prohibited from operating in an area zoned as C-4.
[13] The By-Law further states:
4.6 Uses Prohibited in All Zones
Unless otherwise specifically noted in this By-law, the following uses shall be prohibited in all zones:
F. Any other use that operates contrary to the Environmental Protection Act.
Kal Tire’s Business
[14] Pursuant to its interpretation of the zoning by-laws, Kal Tire takes the position that it has the right to service tractor-trailers and dump trucks on the Premises. This line of business is of concern to the Water Tower in so far as some 60 of the Water Tower’s rooms face the Premises. These rooms have windows that open and, as such, the Water Tower is concerned that the noise associated with changing commercial vehicle tires will disturb its guests.
Meetings With the City
[15] As was noted above, the Landlord met with the City to ensure that work on the premises would meet with the City’s approval. For his part, Mr. Hilsinger attended a City Council meeting on August 12, 2019 to argue his position. Mr. Hilsinger took the position that tractor trailers and dump trucks were “heavy equipment” as contemplated by the by-law. Kal Tire had initially sought to service backhoes, skidders, loaders and other construction equipment at the Premises but instead made arrangements to service these vehicles solely via mobile service off-site.
[16] The issue of tractor trailers, however, remains a live issue. On September 9, 2019, City Council received a report from the city solicitor (the “City Report”) wherein the city solicitor justified the City’s position that the terminology “heavy equipment” did not include commercial vehicles. The Report stated:
The purpose of this report is to provide City Council with the definition of “heavy equipment” applied by City staff interpreting Zoning By-law 2005-150 further to the resolution passed by City Council on August 12, 2019 which states:
[Be it resolved] that at the request of Hugh McDonald, counsel for the Water Tower Inn, [Council makes a request] for an interpretation of the definition of “heavy equipment” in zoning by-law 2005-150 be referred to staff for report back to Council [sic].
“Heavy equipment” is not defined within the City’s by-laws. This requires the plain meaning of the words to be applied. Our research suggests that “heavy equipment” is best defined as machinery used in the process of building roads, tunnels and construction and [which are] not regularly permitted to operate on the highway. “Heavy equipment” is clearly not a commercial motor vehicle commonly known as a transport or other vehicles that are licenced [sic] to operate on a highway, but is what is commonly known as construction type equipment, being excavators, backhoes, and bulldozers, to name a few”
[17] City Council accepted the City Report and undertook no action since City Council ostensibly agreed with the interpretation contained within the City Report.
Kal Tire Opens
[18] In September of 2019, the City issued occupancy permits and Kal Tire waived the final conditions under the Offer to Lease.
[19] Kal Tire met with the City on September 23, 2019 to discuss Kal Tire’s operations.
[20] Kal Tire opened for business on September 30, 2019.
[21] The Water Tower brought this injunction in the fall of 2019. After certain procedural delays attributable to Kal Tire’s desire to cross-examine the Water Tower’s counsel, this injunction was scheduled for early 2020. It was adjourned in order to add the Landlord as a party. The City also became an intervenor in the matter. A date was set to hear the injunction in the spring of 2020 when the COVID-19 pandemic struck. Counsel attempted to have the matter heard in the summer of 2020 but, due to counsel’s illness (not the Water Tower’s counsel), the matter was adjourned on consent. Accordingly, the injunction was heard some 12 months after Kal Tire’s opening.
[22] Since Kal Tire’s opening, the Water Tower has lodged a complaint with the Ministry of the Environment, Conservation and Parks (“MECP”) that Kal Tire’s business operations contravene the Environmental Protection Act (“EPA”). The MECP asked the Water Tower to provide actual sound readings originating from the Premises in order to investigate this allegation. The Water Tower has not complied with that request.
DISPUTED EVIDENCE
The Water Tower
[23] The Water Tower filed affidavit evidence of Mr. Hilsinger. Mr. Hilsinger deposed that since Kal Tire began operations, tractor trailers have waited upon on the Premises after hours and that the noise has been audible from inside south-facing rooms. Mr. Hilsinger filed audio and video of pneumatic noises emanating from the Premises. These noises were very loud and the file attachment indicated that the audio was taken from inside a guest room at the hotel.
[24] Mr. Hilsinger also filed a video interview with a Water Tower guest. This unnamed man complained of loud sounds coming from Kal Tire that disturbed his stay at the Water Tower. The man was staying in a room that fronted onto the Premises.
[25] In an attempt to show the impact of transport trailer sound, Mr. Hilsinger indicated that the hotel receives deliveries from transport trucks. He has had to change rooms for guests as the noise generated by the transport trucks making the deliveries has prevented the customers from enjoying their stay. He also deposed that the hotel has worked to mitigate this sound generated by deliveries.
[26] Mr. Hilsinger was cross-examined on his affidavit. He agreed that “some of our best customers” are tractor trailer operators who are able to park their commercial vehicles at a parking lot adjacent to the Water Tower “[i]f they stay overnight in the hotel”.
[27] Mr. Hilsinger also admitted in cross-examination that a snowmobile club of sorts operates close to the Water Towe. He appeared to indicate that the snowmobilers must have their snow machines on a trailer in order to use to parking lot.
KAL TIRE
[28] Mr. David Penner swore affidavits on behalf of Kal Tire. He is the manager of the real estate and construction group at Kal Tire. He deposed that Kal Tire undertook considerable effort to work with both the City as well as with the Water Tower to ensure that Kal Tire’s operations were compliant with the City’s by-laws.
[29] Mr. Penner deposed that the “business hours of the New Kal Tire Shop are from Monday to Friday, from 7:30 am to 6:00 pm, and Saturday from 8:00 a.m to 5:00 p.m. No business is conducted at the Premises outside of these hours”.
[30] Mr. Penner also described the business operations of Kal tire as they relate to commercial vehicles:
The New Kal Tire Shop also services commercial customer vehicles through the concrete truck pad at the rear of the Premises and at the rear service bay of the Premises. Services offered to commercial customers are tire sales and service. Commercial customers typically enter the Premises from the western-most entrance on Old Garden River Road and proceed around the Premises to the concrete truck pad where the commercial vehicles park.
From that point, the tire is brought into the building of the Premises where the remainder of the tire service occurs. This work includes breaking the bead of the tire away from the rim, removing/repairing/replacing the tire, seating the bead of the tire using a seater blaster, and inflating the repaired/new tire. The final work requires the wheel to be brought back outside the building of the Premises and installed on the vehicle. During busy times, the New Kal Tire Shop services an average of four or five commercial customers per day.
[31] Mr. Penner also indicated that Kal Tire engages in commercial tire service whereby its mobile units travel to vehicles with tire issues:
Mobile service is available for all types of commercial vehicles including transport trucks, backhoes, skidders, loaders, and other similar vehicles. These service calls can occur 24 hours a day, seven days a week. Service calls completed by the mobile service trucks outside of regular business hours are conducted exclusively at the customer vehicle location.
Occasionally, when there is a service call completed by the mobile service trucks during regular business hours, the truck will bring the wheel back to the New Kal Tire Shop to use the tire equipment located on the Premises to complete the tire work. On these occasions, the mobile service truck returns to the customer vehicle with the wheel once the work has been completed to install the wheel on the vehicle. The mobile service trucks see approximately a total of three customers per day during busy times. [Emphasis added]
[32] During his cross-examination, Mr. Penner did not know whether Kal Tire was currently using louder air ratchets, or quieter electric ratchets, on the Premises. At no point in his evidence, however, was it ever made clear as to when air ratchets are used in the tire changing process. I have no evidence as to whether these air ratchets are used in the “bead breaking wedges”, “seating the bead” or at the time of replacing a rim. To make such a finding would exceed the permissible uses of judicial notice as described in R. v. Find, 2001 SCC 32.
The Experts
[33] The Water Tower hired an engineer, Mr. William Hoogeveen, as an expert in the field of noise and vibration. Mr. Hoogeveen provided a report that was tendered into evidence (“the Hoogeveen Report”). Kal Tire hired an engineer, Mr. Brian Howe, to provide a peer review of Mr. Hoogeveen’s report. Mr. Hoogeveen prepared his report in October of 2019 when the Water Tower initially tried to argue the injunction.
[34] In his report, Mr. Hoogeveen indicated that the MECP produces guidelines for acceptable levels of ambient, steady and impulsive sound. Ambient sound is the sound that an area generates without the impugned activity factored in. It appears to be akin to a baseline sound level. For example, a rural area will generally have less ambient sound than a densely populated area such as downtown Toronto with honking horns and the like. Steady sound is sound that is generated by the subject of the study and generally exists for an extended period of time. Impulsive sound is produced by the subject of the report and is a discrete sound that is emitted for less than one second. Mr. Hoogeveen indicated in his report that, in order to comply with the MECP’s regulations on sound, business operations must generate a quantum of sound (either steady or impulsive) smaller than the greater of: (a) the measured ambient sound at a given area; or (b) MECP guidelines for a given location.
[35] In the instant case, Mr. Hoogeveen did not undertake any sound measurements at the Water Tower or at Kal Tire so he modelled his analysis based upon the applicable MECP guidelines. He based his anticipated readings for Kal Tire’s steady and impulsive sound emissions on his research and experience regarding the business activities undertaken by Kal Tire. He indicated that the Water Tower was located in an area that would have urban-like ambient sound levels during the day, but rural-like ambient sound levels at night. Specifically, Mr. Hoogeveen assumed that ambient sound for the Water Tower was 50 dBA during the day and 45 dBA at night.[^2]
[36] Mr. Hoogeveen identified four areas of possible sound contaminants that Kal Tire would likely emit. Two sources were considered steady sounds: the sounds emanating from idling trucks and the sound emanating from truck stacks as trucks slowed down to enter Kal Tire. Mr. Hoogeveen identified two sources of possible impulsive sound: the sound of bead breaking wedges (similar to a hammer strike) and seating the bead using a bead seating blaster. As noted in Mr. Penner’s evidence, both these operations occur inside the Kal Tire building.
[37] Mr. Hoogeveen determined that the sound produced by Kal Tire was likely to greatly exceed the guideline amounts with steady sounds ranging between 64.4 and 66.7 dBA and impulsive sound amounts ranging between 90.2 and 92.5 dBA (as compared to the 50 dBA sound limits prescribed by the guidelines).
[38] Mr. Hoogeveen wrote in the “Conclusions and Recommendations” section of his report:
5.1 Conclusions
Based on this preliminary noise study, it is anticipated that Kal Tire will impose a negative noise impact on the customers of the Water Tower Inn. It is predicted that Kal Tire’s operations will exceed both steady and impulsive MECP sound level limits at the hotel. The exceedances of up to 17 dBA for steady sound and 43 dBA for impulsive sound are significant, and without mitigation it is highly unlikely that an ECA application for a facility with such large exceedances would be approved. The facility would have to consider potential noise mitigation strategies, including physical measures and/or changes to service. Any noise mitigation strategies should reduce the noise impact to existing ambient conditions or lower.
For Kal Tire to comply with the sound level limits set out in this report, either significant noise mitigation or changes in services offered would need to be considered.
5.2 Recommendations
[Mr. Hoogeveen’s engineering firm] recommends that Kal Tire undertake an Acoustic Assessment Report (AAR) as part of an Environmental Compliance Approval (ECA) application if one is not already being undertaken. Based on the preliminary results of this report, Kal Tire is in violation of MECP’s guidelines which could result in the disturbances in operations and business of Water Tower Inn.
It is also recommended that noise monitoring of Kal Tire’s full operations be undertaken to confirm sound levels at the Water Tower Inn.
[39] Mr. Howe’s peer review, not surprisingly, critiqued the Hoogeveen Report. Mr. Howe disagreed with some of the assumptions that Mr. Hoogeveen made. He indicated that the ambient sound found at the Water Tower would be higher than guideline levels given the roadways and the businesses located near the hotel. Mr. Howe also indicated in his report that the predicted impact of moving and idling trucks would be negligible upon the hotel. He questioned whether Kal Tire used loud air ratchets as opposed quieter electric ratchets. He also questioned whether bead breaking and seating the bead would occur inside the Kal Tire building, which would mitigate the sound generated. Finally, he questioned whether or not commercial trucks, if they were repaired outside, would themselves mitigate the sound travelling towards the Water Tower.
[40] Mr. Hoogeveen delivered a reply affidavit. He testified that shielding sound by commercial vehicles would be unlikely because the sound would travel under the vehicle. Nonetheless, Mr. Hoogeveen altered the assumptions underlying his calculations. For example, he included a fourteen-foot wall between the Water Tower and Kal Tire so as to replicate the “sound barrier” created by commercial trucks lined up to get serviced. Despite these mitigating features, Mr. Hoogeveen still calculated that Kal Tire’s operations would generate a steady sound of 58 dBA, which would surpass the acceptable levels of sound for the area. He did not comment any further on the levels of impulsive sound.
[41] Both experts were cross-examined. Mr. Hoogeveen indicated in cross-examination that he uses modelling reports like the one generated in this litigation to work with the MECP on behalf of developers. He does not necessarily take actual sound readings to support his reports. He also indicated that it was possible that, when enforcing sound violations, the MECP may ask for actual sound measurements.
[42] Mr. Howe was cross-examined and he effectively accepted the modelling methodology undertaken by Mr. Hoogeveen (i.e. he accepted that the calculations were performed correctly). He continued to question the assumptions made by Mr. Hoogeveen. These criticisms generally replicated the criticisms contained in his peer review. Mr. Howe agreed that compliance with MECP sound guidelines required that the “last to show” (i.e. Kal Tire) had to comply with sound requirements.
[43] With respect to his views on ambient sound near the Water Tower, Mr. Howe contended that ambient sound at the Water Tower location could be as high as 55 dBA. In fact, Mr. Howe testified that
he [Mr. Hooegeveen] is saying that it is a quiet area and I am saying it is a busy area. And so for… if it is a quiet area, then 50 may be appropriate. But from my estimate, that is… you know, that is… for instance, in just… in urban areas, an acceptable level in your backyard during the day, which is met, you know, many places around Toronto is 55. So, 55 is pretty typical, comfortable, daytime outdoor noise level.
POSITION OF THE PARTIES
[44] The Water Tower takes the position that an injunction is warranted in this instance based upon three distinct grounds:
a. Kal Tire’s commercial vehicle operations generate sound that exceeds the prescribed limits as described in the EPA, its regulations and associated guidelines. As such, Kal Tire’s activities breach City by-law 4.6 F and, pursuant to the Municipal Act, the Water Tower is entitled to restrain that breach;
b. The noise generated by Kal Tire’s commercial vehicle operations cause a nuisance to those guests who have rooms on the south side of the hotel facing the Premises; and
c. The City’s zoning by-law prohibits the servicing of “heavy equipment” on the Kal Tire site. The Water Tower submits that tractor trailers and the like fall within the definition of “heavy equipment” and, pursuant to the Municipal Act, the Water Tower is entitled to restrain that breach.
[45] Kal Tire and the Landlord are opposed to the Water Tower’s request for an injunction. They submit that each of the Water Tower’s three main positions must fail for a variety of reasons that will be explored in the “Analysis” portion of these reasons.
[46] The City only made representations with respect to the interpretation of “heavy equipment” within City by-laws. The City takes the position that “heavy equipment” does not include tractor trailers and asks the court to find that, for the purposes of the City zoning by-law, “heavy equipment” can be defined as “machinery used in the process of building roads, tunnels and construction and not regularly permitted to operate on the highway”.
ANALYSIS
Standing and the Municipal Act
[47] The Water Tower seeks an injunction pursuant to s. 440 of the Municipal Act, 2001, S.O. 2001, c. 25 which states:
If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.
[48] Kal Tire and the Landlord submit that this standing does not necessarily equate to standing to bring an injunction. In the alternative, they submit that the ability to bring an injunction under this section is such that extra precautions need to be taken because a private litigant is enforcing a municipal by-law, as opposed to the municipality itself.[^3]
[49] Balmain Hotel Group L.P. v. 1547648 Ontario Ltd. 2009 CarswellOnt 3148 (Ont. S.C.) deals with this first submission. In Balmain, the applicant hotel sought an injunction as against a nightclub which had opened beside a hotel in Toronto’s entertainment district. Newbould J. granted an injunction on the basis that the nightclub was contravening the City of Toronto’s noise by-law and created a nuisance for the hotel. In granting the injunction, Newbould J. stated at para. 57: “Section 440 of the Municipal Act provides that contravention of a by-law may be restrained at the instance of a taxpayer. Balmain is entitled to restrain the breach”. I agree with Newbould J. in this regard and find that s. 440 of the Municipal Act permits the Water Tower to seek injunctive relief.
The EPA and City By-Laws
By-law Breach
[50] The next matter to be determined, therefore, is whether there is a breach of the municipal by-law. In this instance, by-law 4.6 F of the City’s Zoning By-Law 2005-150 states:
Unless otherwise specifically noted in this By-law, the following uses shall be prohibited in all zones:
F. Any other use that operates contrary to the Environmental Protection Act.
[51] Therefore, the language used in by-law 4.6 F – “[a]ny other use that operates contrary to the Environmental Protection Act” – makes clear that the by-law is triggered not merely by a breach of the EPA, but by an operation that runs contrary to that act. Accordingly, if I were to find that Kal Tire’s business “operat[ed] contrary to the Environmental Protection Act” by either a substantive failure to comply with the act (i.e. by contravening the substantive provisions regarding noise contaminants) or by a procedural failure (by failing to secure appropriate approvals), the wording of the by-law demands that said failure would constitute a breach of by-law 4.6F. As will be seen below, Kal Tire has breached the by-law substantively.
The EPA Prohibition
[52] The EPA provides the following definitions:
“adverse effect” means one or more of,
(g) loss of enjoyment of normal use of property, and
(h) interference with the normal conduct of business; (“conséquence préjudiciable”)
“contaminant” means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect; (“contaminant”)
[53] Section 9(1) of the EPA states:
Approval, plant or production process
9 (1) No person shall, except under and in accordance with an environmental compliance approval,
(a) use, operate, construct, alter, extend or replace any plant, structure, equipment, apparatus, mechanism or thing that may discharge or from which may be discharged a contaminant into any part of the natural environment other than water; ...
[54] Thus, s. 9(1) of the EPA, when read together with definitions of “contaminant” and “adverse effect”, mandates that entities are prohibited from undertaking operations that may emit sound if said emission causes, or may cause, the loss of the enjoyment of property or if said emission or potential omission interferes, or may interfere, with the normal conduct of business.
[55] It is admitted that Kal Tire’s commercial vehicle operations emit sound. I must therefore determine whether Kal Tire’s servicing of commercial vehicles emits sound that causes or may cause:
a. the “loss of enjoyment of normal use of property”; or
b. the “interference with the normal conduct of business”.
[56] Counsel for Kal Tire submit that Mr. Hoogeveen’s failure to record actual sound levels is fatal to the moving party’s position. Counsel for Kal Tire takes the position that this failure is such that I have no evidence that Kal Tire’s sound emissions actually meet the definition of “contaminant”.
[57] In fact, counsel for Kal Tire goes beyond this first position and submits that there is no actual breach occurring. Counsel for Kal Tire points to online reviews filed in evidence that indicate that the Water Tower is a pleasant hotel, with one even calling the Water Tower as being “quiet”.
[58] This argument has considerable merit when I consider that Kal Tire has been in business at the Premises for over one year. Procedurally, it must be noted that the injunction was adjourned through no fault of the Water Tower. Nonetheless, and despite the fact that the COVID-19 pandemic effectively shut down Sault Ste. Marie for part of 2020, one would have considered it likely that Mr. Hoogeveen would have taken actual readings to fortify his report. Failure to do so would normally cause me concern when I consider the lack of negative online reviews, absent other evidence to the contrary.
[59] With that being said, the definition of “contaminant” does not necessarily require me to find that a sound emission has in fact caused an adverse effect. I am only required to find that a sound emission “may” cause an adverse effect in order to fit within the definition. The Concise Oxford English Dictionary, 12th ed. (Oxford: Oxford University Press, 2011), at p. 885 defines the word “may” as “expressing possibility”. As such, I do not need to make a finding that Kal Tire has actually emitted sounds that exceed acceptable limits. I do not require actual sound readings from the site. Rather, I need only find that Kal Tire’s sound emissions raise the possibility of causing an adverse effect in order to find a breach of the EPA.[^4] A properly qualified expert report – based upon reasonable assumptions and using proper methodology – could surely provide sufficient evidence of such a "possibility".[^5]
[60] With respect to the assumptions underlying the Hoogeveen Report, counsel for Kal Tire and the Landlord also submit that the Hoogeveen Report fails to adequately consider the Water Tower’s surrounding area as it relates to ambient sound. The Water Tower is surrounded by two major roadways and several businesses. They submit that these factors demand that ambient noise levels must exceed government estimates. They point to Mr. Howe’s peer review which indicates that the Hoogeveen Report underestimates ambient noise. As such, the Hoogeveen Report is unreliable and provides an insufficient basis to grant an injunction.
[61] I am also mindful of the fact that the Water Tower allows commercial vehicles to park in its parking lot when its drivers are staying the night. Equally, in so far as there is a restaurant on site, the Water Tower also receives deliveries from commercial vehicles which undoubtedly generates a reasonable quantum of noise. These noises, coupled with the lack of actual sound readings, would undoubtedly elevate the ambient noise at the Water Tower which causes me concern regarding the Hoogeveen Report’s accuracy.
[62] Despite these submissions, the evidence filed by the Water Tower assuages these concerns. First, the Water Tower filed a number of audio and video files taken from rooms facing Kal Tire where very loud sounds could be heard originating from the Premises. Although these audio and video files were not subjected to sound tests by experts and the like, it was clear to me that these sounds would prevent the vast majority of people from falling asleep – or staying asleep – if they had a room facing the Premises. These sounds were “impulsive” sounds emitted while tractor trailers were on the Premises.
[63] Second, the Hoogeveen Report provides me with sufficient evidence to find that a hotel located beside the Premises could theoretically be negatively affected by Kal Tire’s commercial truck operations. If I accept Mr. Howe’s testimony that 55 dBA is a normal ambient sound level for the Water Tower, and if I accept Mr. Hoogeveen’s modified modelling that factors in a wall of trucks between Kal Tire and the Water Tower, it is clear that the steady sound emitted by Kal Tire could exceed the ambient sound level described by Mr. Howe. By necessary extension, therefore, the impulsive sounds would continue to greatly exceed even Mr. Howe’s 55 dBA ambient sound level.
[64] The audio/video filed with the court was therefore corroborated by the Hoogeveen Report. The audio/video clearly captures loud sounds that would “impose a negative noise impact on the customers of the Water Tower Inn” as described in the Hoogeveen Report. I do not know whether the sounds captured on audio/video occurred during bead breaking wedges or seating the bead or during some other operation. I equally do not know whether these loud sounds originated inside a closed building located upon the Premises or outside on the parking area of the Premises. I do not know if the sound is that of an air ratchet or an electric ratchet. That evidence was not before me. What was clear, however, was that an impulsive sound was emanating from the Premises. That sound was loud enough that anyone sleeping at the time the sound was made would likely be woken.
[65] While the evidence shows that there are not any online complaints about the noise emanating from Kal Tire, I accept that anyone who had to suffer through the sounds disclosed in the audio/video while staying on the south side of the Water Tower would have had their experience materially affected. Indeed, the Water Tower filed a videotaped complaint wherein an unnamed man explained that he was woken up by loud sounds emanating from Kal Tire. This interview provides further evidence that loud sounds emanating from Kal Tire can negatively affect someone’s stay at the Water Tower.
[66] In conclusion, the audio/video files and the unnamed complaint satisfy me that the sound generated by Kal Tire’s commercial vehicle activities is very loud and that these sounds “will impose a negative noise impact on the customers of the Water Tower Inn.” This evidence is consistent with the Hoogeveen Report’s conclusion that noise emitted from these activities will greatly exceed the tolerances described by the EPA, its regulations and guidelines. Were this sound level to occur at night, I find that the Water Tower’s online reputation would be affected. As Newbould J. stated at para 59 of Balmain: “A reputation for noisy rooms would no doubt deter persons from staying at the Hotel. This is particularly the case with the proliferation of websites that review hotels and include comments from persons who have stayed in them.”
[67] Given the totality of the evidence adduced by the Water Tower, I therefore find that Kal Tire’s commercial vehicle operations constitute a prima facie contravention of s. 9(1) of the EPA in so far as those specific operations emit a contaminant.
The Exceptions to the EPA Prohibition
[68] The EPA contains three possible exceptions to the prohibition against emissions of noise contaminants as contained in s. 9(1). The first occurs when the emitter of said possible contaminant secures an “environmental compliance approval” as is described in section 9(1). The parties agree that Kal Tire has not secured such an approval. The first exception is thus inapplicable.
[69] The second and third possible exceptions are delineated in section 9(4) of the EPA which states:
Exception, prescribed activities
(4) Subsection (1) does not apply to a person who is engaging in an activity at a site if the activity has been prescribed by the regulations for the purposes of subsection 20.21 (1), unless one of the following circumstances applies:
An environmental compliance approval in respect of the activity engaged in at the site has been issued before the day when a regulation prescribing the activity for the purposes of subsection 20.21 (1) comes into force, and the approval has not ceased to have effect as determined under section 20.17.
Subject to subsection (5), the Director has issued an order under section 20.18 in respect of the activity at the site.
[70] I have no evidence to suggest that the Director has issued an order under section 20.18 and I therefore find that no such order has been issued. The second exception is therefore inapplicable.
[71] Section 20.21 of the EPA and the regulations created thereunder establish a regime whereby the person discharging a contaminant may continue activities short of the necessity for receiving an ECA:
Prohibition, prescribed activities
20.21 (1) Subject to subsections (2), (3) and (4), no person shall engage in an activity at a site if the activity has been prescribed by the regulations for the purposes of this subsection unless,
(a) the person has registered the activity in the Registry in accordance with the regulations;
(b) the Director has provided the person with a confirmation of registration in respect of the activity;
(c) the person engages in the activity in accordance with the regulations; and
(d) the registration is not suspended and has not been removed from the Registry.
[72] It is conceded that Kal-Tire has not registered under s. 20.21(1)(a) and, as such, the exception described in section 20.21 of the EPA does not apply.[^6]
[73] Thus, none of the three exceptions to s. 9(1) of the EPA apply to Kal Tire.
Conclusion
[74] Based upon the factual findings made above, I find that Kal Tire’s commercial vehicle operations breach s. 9(1) of the EPA because:
a. its commercial vehicle operations emit a contaminant (sound) into the natural environment that “may” have the effect of interfering with the Water Tower’s normal conduct of business; and
b. none of the exceptions contained within the EPA are met by Kal-Tire.
[75] As a result of breaching s. 9(1) of the EPA, Kal Tire’s commercial vehicle operations therefore contravene City by-law 4.6 F and, pursuant to s. 440 of the Municipal Act, the Water Tower is entitled to restrain the impugned conduct provided it meets the legal threshold for securing an injunction.
The Appropriate Legal Test
RJR-MacDonald or A Modified Test
[76] The Supreme Court of Canada enunciated the test courts must apply when considering injunctions in R.J.R.-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 at para 43:
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
[77] Counsel for the Water Tower urges me to apply what has been described as a “modified test” for granting injunctions where a breach of a municipal by-law is alleged. Counsel relies upon Hamilton (City) v. Loucks, 2003 CanLII 64221 (ON SC), [2003] O.J. No. 3669 (Ont. S.C..) wherein Henderson J. stated at paras 24 and 35:
In certain cases it has been held that the traditional test should be modified so that the first criterion (serious question to be tried) will be strongly emphasized, to the exclusion of the other two criteria. There are three factors in the present case that justify that modification of the traditional test, namely, the allegations that the defendants are interfering with the plaintiff's property rights, that the defendants are breaching a municipal by-law, and that the defendants are engaging in civil disobedience.
Therefore, if any of the three aforementioned factors are present, the traditional test for interlocutory injunctions as set out in the RJR-MacDonald case should be modified so that there is a strong emphasis placed on the first criterion that requires the plaintiff to prove that there is a serious question to be tried. In such a case, there is no need for the plaintiff to prove that it will suffer irreparable harm, and there is no need to consider the balance of convenience.
[78] Loucks has been cited by numerous Ontario Courts for this proposition: see Caledon (Town) v. Darzi Holdings 2019 ONSC 5225; Pasre Holdings Inc. v. Goodes, [2018] O.J. No. 1826; Couchiching First Nation v. Canada (Attorney General), 2010 ONSC 4373, [2010] O.J. No. 4194.
[79] Counsel for Kal Tire and the Landlord urged me to consider Abdullah v. Maziri [2016] O.J. No. 1600 (Ont. S.C.) In Abdullah, the presiding justice was confronted with a situation where Ottawa taxi drivers sought an injunction as against Uber for violating City of Ottawa by-laws. At paras 35 and 36, he stated:
The plaintiffs submit that when a municipality is suing to enforce a By-law, proof of irreparable harm and the balance of convenience need to be considered; however, a strong prima facie case showing that the defendant is in clear breach of the By-law is the key consideration and the other two criteria are of secondary importance. They rely on the decisions of Kamloops (City) v. Southern Sand and Gravel Co. (1987), 1987 CanLII 2884 (BC SC), 43 D.L.R. (4th) 369 (B.C. S.C.), and Hamilton (City) v. Loucks (2003), 2003 CanLII 64221 (ON SC), 232 D.L.R. (4th) 362 (Ont. S.C.). These cases were all decided before RJR-MacDonald and the motion before me is not brought by a municipality and so I find that the three part test for an injunction as set out in RJR-MacDonald should be applied in this case.
At p. 341 of RJR-MacDonald, the Supreme Court stated that irreparable harm refers to harm that cannot be quantified in monetary terms or that cannot be cured, usually because one party cannot collect damages from the other. [Emphasis added.]
[80] Counsel for the plaintiff urges me to ignore the findings in Abdullah since the statement that Loucks and Kamloops “were all decided before RJR-MacDonald” is incorrect. Instead, I ought to find that, as a policy consideration, the enforcement of a by-law breach necessarily imports public interest considerations. As such, the second and third prongs of the RJR-MacDonald test can either be dispensed with or afforded little weight.
[81] Counsel for Kal Tire effectively submits that the public interest is met when a municipality seeks to enforce its own by-laws because, as a public body, it alone has the public interest as one of its governing directions. Accordingly, only government bodies may avail themselves of this less onerous test.
[82] Counsel for Kal Tire also submits that the Water Tower is effectively seeking a writ of mandamus by effectively making Kal Tire register and file a noise report with the MECP. Granting an injunction in the case of such “positive” writs has a much higher legal threshold to meet, as per counsel.
[83] I reject this latter argument. The Water Tower is seeking an order prohibiting Kal Tire from undertaking certain activities. This proposed prohibition is based upon a statutory prohibition. This is not, therefore, a “positive” writ whereby the Water Tower is asking Kal Tire to undertake certain actions or to comply with an act or a regulation. It is a “negative” writ that seeks to prohibit certain conduct, namely the servicing of commercial vehicles.
[84] With respect to whether the modified test applies to a situation where a private litigant seeks to enforce a municipal by-law, I do not need to resolve this issue in order to decide the case before me. I note that in Balmain, Newbould J. applied the RJR-MacDonald test as opposed to the modified test and granted the injunction. Equally, when I apply the RJR-MacDonald test to the facts before me, I am satisfied that I ought to grant an injunction.
Serious Issue to be Tried
[85] At paras 44 and 50 of RJR-MacDonald, the Supreme Court identified both the historical genesis of the “serious issue” prong of the test as well as the manner in which it ought to be applied in a modern context:
Prior to the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd., 1975 CanLII 2598 (FC), [1975] A.C. 396, an applicant for interlocutory relief was required to demonstrate a "strong prima facie case" on the merits in order to satisfy the first test. In American Cyanamid, however, Lord Diplock stated that an applicant need no longer demonstrate a strong prima facie case. Rather it would suffice if he or she could satisfy the court that "the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried". The American Cyanamid standard is now generally accepted by the Canadian courts, subject to the occasional reversion to a stricter standard: see Robert J. Sharpe, Injunctions and Specific Performance (2nd ed. 1992), at pp. 2-13 to 2-20.
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
[86] Given my findings at paragraphs 66 and 67 above, there is a serious issue to be tried in this case. Specifically, there is certainly enough evidence to suggest that Kal Tire’s operations my cause Water Tower patrons to be disturbed, especially in their sleep. Were such disruption to be reported in online reviews, it cannot be said that the impact upon the Water Tower’s business reputation would be anything other than serious. The application is, therefore, neither vexatious nor frivolous. Accordingly, this prong of the RJR-MacDonald test is met easily.
Irreparable Harm
[87] Counsel for Kal Tire and the Landlord submits that the irreparable harm test is not met. Counsel points to two arguments in support of that position:
a. the damage is not irreparable in that a hotel’s reputation for quiet rooms can be repaired; and
b. any damage caused by the loss of said reputation can be quantified and damages can be calculated.
[88] In RJR-MacDonald, the Court described irreparable harm at para 64:
"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court's decision (R.L. Crain Inc. v. Hendry (1988), 1988 CanLII 5042 (SK QB), 48 D.L.R. (4th) 228 (Sask. Q.B.)); where one party will suffer permanent market loss or irrevocable damage to its business reputation (American Cyanamid, supra); or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin, 1985 CanLII 154 (BC CA), [1985] 3 W.W.R. 577 (B.C.C.A.)). The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)). [emphasis added]
[89] In Balmain, Newbould J. stated at paras 58 and 59:
Morden J. dealt with the test whether an injunction should be granted to restrain a nuisance in Walker v. Pioneer Construction Co (1967), Ltd., supra. He stated:
With respect to the first issue, the generally-recognized governing principles are those set forth in the judgment of A.L. Smith, L.J., in Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287 at pp. 322-3:
In my opinion, it may be stated as a good working rule that --
(1.) If the injury to the plaintiff's legal rights is small,
(2.) And is one which is capable of being estimated in money,
(3.) And is one which can be adequately compensated by a small money payment,
(4.) And the case is one in which it would be oppressive to the defendant to grant an injunction: --
then damages in substitution for an injunction may be given.
These principles were applied by the Appellate Division in Duchman v. Oakland Dairy Co. Ltd. (1928), 63 O.L.R. 111, [1929] 1 D.L.R. 9, when favourably considering the granting of an injunction. The facts were not dissimilar from those of the present case. The defendant's operations disturbed the sleep of the plaintiffs in the early morning hours. Middleton, J.A., said at p. 134 O.L.R., pp. 16-7 D.L.R.:
The case of Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287, is, I think, not only a binding authority, but one which we should unhesitatingly follow. It has never been questioned in England or here, and, if regard is paid to this decision, then the plaintiff Duchman is entitled to the injunction claimed. The injury to his legal right is not small, it is not capable of being estimated in money, and money would not be an adequate compensation, particularly money which can be described as a small money payment. A noise which during the early morning hours prevents the plaintiff from sleeping in comfort and peace is not a trivial thing. Under the judgment as it now stands this is recognised, but the plaintiff has no injunction, nor has he the damages which under Lord Cairns' Act he is entitled to in lieu of an injunction. See Arthur v. Grand Trunk Railway Co. (1895), 22 A.R. 89.
In this case a payment of money would not be sufficient to remedy the problem faced by Balmain. What the loss of business to Balmain is would be very difficult to calculate, and likely impossible. A reputation for noisy rooms would no doubt deter persons from staying at the Hotel. This is particularly the case with the proliferation of websites that review hotels and include comments from persons who have stayed in them. In my view an injunction is the appropriate remedy in this case. As stated by Middleton J.A. in the quoted passage, a noise which during the early morning hours prevent someone from sleeping in comfort and peace is not a trivial thing. [Emphasis added.]
[90] I agree with Newbould J.’s finding that damage to a hotel’s reputation for providing a quiet place to sleep meets the definition of “irreparable harm” as described in R.J.R.-MacDonald. Based upon my findings at paragraphs 66 and 67 of these reasons, Kal Tire’s commercial truck operations could easily cause irrevocable damage to the Water Tower’s business reputation. Therefore, the second prong of the traditional test for injunctions has been met.
The Balance of Convenience
[91] The Supreme Court stated at para. 63 of R.J.R.-MacDonald:
The factors which must be considered in assessing the "balance of inconvenience" are numerous and will vary in each individual case. In American Cyanamid, Lord Diplock cautioned, at p. 408, that:
[i]t would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.
He added, at p. 409, that "there may be many other special factors to be taken into consideration in the particular circumstances of individual cases."
[92] The balancing of convenience in this case is informed by the nature of the services offered by the Water Tower. I believe that I can take judicial notice of the fact that a hotel’s primary function is to provide guests with a place to sleep. I believe that I can also take judicial notice of the fact that most people sleep at nighttime. Accordingly, the need to ensure a quiet environment for a hotel is heightened at night.[^7]
[93] I also note that the Water Tower is located in a business zone that contains many businesses which operate during the day. It is located on two major thoroughfares. It receives deliveries. As such, the ambient sound that Water Tower customers should reasonably expect to hear in their rooms will be different depending upon the hour of the day, as was described by both experts.
[94] This is an important fact when I consider Kal Tire’s hours of operation. Kal Tire is open during the day and, according to Mr. Penner’s evidence, it does not service commercial vehicles on the Premises outside these hours.
[95] Therefore, when I engage in the balance of convenience, it would be unfair to Kal Tire’s business interests to impose an outright prohibition on servicing commercial vehicles since most people sleep at night. Guests at the Water Tower may not find daytime noise to be of particular concern. Indeed, the number of positive online reviews the Water Tower has received since the opening of Kal Tire would appear to suggest that this is in fact the case.
[96] Conversely, allowing Kal Tire to undertake any commercial vehicle operations outside of daytime business hours (whether inside its building or outside thereof) would undoubtedly affect the Water Tower’s business reputation in a material way. Guests on the south side of the hotel would likely be unable to sleep given the sound contained in the audio and video files as well as the sound levels described in the Hoogeveen Report. Gaining a reputation as a “loud” hotel would obviously damage the Water Tower’s business reputation while enabling night-time commercial vehicle servicing would provide Kal Tire with a limited benefit given that Kal Tire currently services no commercial vehicles after hours.
[97] Therefore, when I consider all of the evidence and the applicable legal tests, I find that granting an injunction in the circumstances is the appropriate remedy. Kal Tire will be enjoined from servicing commercial vehicles on the Premises between the hours of 8:00 p.m. and 9:00 a.m., seven days a week. While I realize that Kal Tire opens during the week at 7:30 a.m., I believe that the sound emitted by the servicing of commercial vehicles between the hours of 7:30 a.m. and 9:00 a.m. could reasonably be expected to interrupt the sleep of Water Tower guests. The possibility of permanent loss of reputation for the Water Tower in such a circumstance exceeds the inconvenience caused to Kal Tire by the loss of 90 minutes of weekday service time. This is especially true in light of the relatively small number of commercial vehicles serviced by Kal Tire as described by the Penner affidavit.
[98] Because I find that Kal Tire is in breach of the EPA and City by-law 4.6 F, I will not make findings with respect to the other bases under which the Water Tower is seeking injunctive relief.
ORDER
[99] Kal Tire is hereby restrained from servicing commercial vehicles (including but not limited to dump trucks, tractor trailers and other large commercial vehicles) between the hours of 8:00 p.m. and 9:00 a.m., seven days per week. This injunction shall be in effect until the action is resolved or pending further order of this court.
COSTS
[100] The parties will provide me with their cost submissions of no more than 3 pages (excluding attachments) within 15 days of today’s date.
Varpio J.
Released: October 19, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JJ’S HOSPITALITY LIMITED
- And –
KAL TIRE LTD.
- And –
MAR-LI INVESTMENTS LTD.
- And –
CITY OF SAULT STE. MARIE
REASONS FOR DECISION
Varpio J.
Released: October 19, 2020
[^1]: I will use the term Water Tower to reference both JJ’s Hospitality Ltd. as well as the Water Tower Inn since, for the purposes of these reasons, the two entities are interchangeable. [^2]: "dBA" is a unit of measurement used to measure sound. [^3]: This alternative argument will be addressed later in these reasons. [^4]: Although not raised in argument, I question whether the possibility of causing an adverse effect needs to be “reasonable” or reach some other legal threshold. As will be seen below, I need not address that issue in these reasons. [^5]: Although not raised in argument, the Supreme Court deals with the permissible use of hypothetical expert testimony in cases such as R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. [^6]: Ontario Regulation 1/17: Registrations Under Part II.2 of the Act – Activities Requiring Assessment of Air Emissions governs the emission of sound into the environment as pr s. 20.21(1)(c). [^7]: Mr. Hilsinger deposed that the Water Tower’s clientele included flight crews and other guests who slept during the day. I was not given any evidence as to the percentage of guests that slept in the daytime. Accordingly, I have no evidence to suggest that such guests constitute a meaningful percentage of the Water Tower’s business. I have no reason to doubt that these guests that sleep during the day can be accommodated if the Water Tower ensures that their rooms do not face the Premises.