COURT FILE NO.: CV-20-83948
DATE: 2021/08/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rowan Thomson and Kevin McStravick, Plaintiffs (Moving Parties)
AND
Jerry Benjamin and Ryan Benjamin, Defendants (Responding Parties)
BEFORE: Justice R. Ryan Bell
COUNSEL: Edward C. Conway, for the Plaintiffs
Gordon S. Campbell, for the Defendants
HEARD: August 5, 2021
ENDORSEMENT
Overview
[1] The plaintiffs Rowan Thomson and Kevin McStravick live with their young son next door to the defendants Jerry and Ryan Benjamin (father and son) on Lexington Street, in a residential Ottawa neighbourhood. In September 2018, the Benjamins installed a heat pump at their house on Lexington.
[2] Soon after the heat pump was installed, the plaintiffs raised concerns with the Benjamins about the noise emanating from the heat pump. The plaintiffs complained to Ottawa By-law Services. No enforcement action was taken against the Benjamins. In February 2019, the Benjamins were put on notice of the plaintiffs’ intention to seek an injunction. In July 2020, Ms. Thomson and Mr. McStravick commenced their action.
[3] This motion was originally scheduled to be heard in May 2021. On consent, the motion was adjourned to August 5, 2021.
[4] Ms. Thomson and Mr. McStravick say that the Benjamins’ heat pump produces significant noise and vibration. It is located directly opposite the window of their child’s bedroom. They say that they are suffering from chronic sleep deprivation and that their health and the health of their child has deteriorated significantly since the heat pump was installed. They seek an interlocutory injunction requiring the Benjamins to relocate their heat pump to another location on their property.
[5] The motion for a mandatory interlocutory injunction is dismissed. The plaintiffs have not shown a strong prima facie case. They have not satisfied their onus to place clear evidence before the court to ground a finding of irreparable harm. The balance of convenience does not favour the plaintiffs.
The Test for a Mandatory Interlocutory Injunction
[6] The draft order submitted by the plaintiffs confirms the relief requested on this motion:
(i) an order that the Benjamins be enjoined from producing any noise emission, above ambient level (30 dBA), onto the plaintiffs’ property as measured at the property line; and
(ii) an order that the Benjamins are to relocate their heat pump to a location on their property that does not emit noise above ambient level onto the plaintiff’s property as measured at the property line.
[7] While the first order requested is prohibitory in nature, there is no question that the second order requested is mandatory in that it directs the defendants to undertake a positive course of action. In R. v. Canadian Broadcasting Corp., 2018 SCC 5, at para. 18, the Supreme Court of Canada set out the test to be met to obtain a mandatory interlocutory injunction:
In sum, to obtain a mandatory interlocutory injunction, an applicant must meet a modified RJR-MacDonald test, which proceeds as follows:
(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;
(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and
(3) The applicant must show that the balance of convenience favours granting the injunction.
[8] This motion falters on each branch of the test due, in large measure, to the insufficiency of the evidence presented.
No Strong Prima Facie Case Demonstrated
[9] The plaintiffs’ action against the Benjamins is in nuisance and negligence. It is common ground that a nuisance consists of an interference with the claimant’s use or enjoyment of land that is both substantial and unreasonable: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, at para. 18. In Tock v. St. John’s Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181, La Forest J. wrote at p. 1191 that actionable nuisances include “only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tests” and not those based “on the prompting of excessive ‘delicacy and fastidiousness’.”
[10] The plaintiffs submit that the interference from the heat pump’s noise and vibration is both substantial and unreasonable. While the plaintiffs’ position may prevail at trial, I am unable to find on the evidence presented that there is a strong likelihood that the plaintiffs will be successful in proving their allegations. In particular, I note the following.
[11] First, the plaintiffs rely heavily on an audio recording of the sound emitted by the heat pump attached as an exhibit to one of Ms. Thomson’s affidavits. They invite the court to assess the level of sound emitted by listening to the audio recording. I make no assessment based on this recording because: a) the plaintiffs’ experts provided no opinion concerning the audio recording; and b) on cross-examination, Jerry Benjamin explained that the recording did not represent the heat pump’s actual operating noise because it was made during a malfunction of the unit.
[12] Second, there is conflicting evidence regarding the level of the noise emissions from the heat pump. Alex Fortier, an acoustical consultant engaged by the plaintiffs, measured the noise levels produced by the Benjamins’ heat pump when active at an average of 59.3 dBA, 9.3 dBA more than the by-law limit of 50 dBA.
[13] In their responding motion materials, the Benjamins include an email from the Director of By-law Services in which the Director confirms that several readings were taken at the Benjamins’ property from different locations, “all of which were determined not to be in violation of the By-law, or a very slight violation (1 or 2 dBAs), depending on weather conditions and how close the officer was to the sound source, no charges were issued.” The Benjamins also include the results of an access to information request they made concerning by-law complaints in relation to their property. Those results appear to confirm, at least in part, the readings noted by the Director in his email. For example, the entry for October 22, 2018 reads: “Reading was 52. NO VIOLATION.” The entry for November 15, 2018 includes the notation: “Readings conducted was not in violation” [sic].
[14] I have disregarded Mr. Fortier’s opinion that the measured noise level has the potential to reduce the quality of life of the plaintiffs and their son due to “the psychophysiological effects of noise exposure.” There is nothing in the record that would suggest Mr. Fortier is qualified to give an opinion in this regard.
[15] On the issue of noise levels and what constitutes a nuisance, the plaintiffs have referred me to a number of cases, including Suzuki v. Monroe, 2009 BCSC 1403 and Clouthier v. Carrefour Assomption Ltée, [1984] N.B.J. No. 177. The defendants counter with, among others, 340909 Ontario Ltd. v. Huron Steel Products (Windsor) Ltd., 1992 CanLII 7815 (ON CA) and The Office Centre (Kingston) Limited v. Salshir Properties Limited, 2019 ONSC 4135. Each case, of course, turned on its particular facts. I note that Suzuki, Clouthier, and Huron Steel were trial decisions; they are of limited assistance to me here. In Huron Steel, the trial judge adjourned argument on the issue of injunctive relief and the parties then agreed to a remedial course of action. In The Office Centre, the court dismissed a motion for an interlocutory injunction to prevent the continued operation of a compressor said to constitute a nuisance.
[16] Third, the plaintiffs rely on photos attached to Ms. Thomson’s affidavit which they say provide evidence regarding the humidity emitted by the Benjamins’ heat pump. The plaintiffs say that they had to replace the window in their son’s bedroom as a result. The difficulty for the plaintiffs on this motion is that the plaintiffs’ experts provided no opinion on the photos.
[17] Fourth, Mr. McStravick did not file an affidavit in support of the motion. The only information as to the alleged impacts of the noise and vibrations on Mr. McStravick is contained in Ms. Thomson’s affidavits. While Rule 39.01(4) of the Rules of Civil Procedure provides that an affidavit for use on a motion may contain statements of the deponent’s information and belief if the source of the information and the fact of the belief are specified in the affidavit, Ms. Thomson’s affidavits do not adhere strictly to this requirement. I have placed only limited weight on Ms. Thomson’s statements as to the alleged impacts of the noise on her husband in determining whether the plaintiffs have discharged their onus of demonstrating a strong prima facie case.
[18] Fifth, and most significantly, although the plaintiffs have filed a report from their family physician, there is no medical opinion that links the plaintiffs’ medical complaints to the heat pump. I also note that Mr. McStravick’s self-reporting as described in the physician’s report does not constitute evidence of his complaints given his failure to file an affidavit on the motion. On this basis alone, I am unable to find that the plaintiffs have demonstrated a strong prima facie case that they will succeed in nuisance or in negligence at trial.
Plaintiffs Have Not Demonstrated Irreparable Harm if Relief is Not Granted
[19] The onus lies on the party seeking the injunction to place clear evidence before the court to ground a finding of irreparable harm: Labrador Recycling Inc. v. Folino, 2021 ONSC 2195, at para. 31. The plaintiffs have not met their onus.
[20] The plaintiffs assert that they have tendered “extensive uncontradicted, unchallenged medical evidence of significant deterioration of health caused by the running of the Heat Pump.” This is simply not the case. There is no medical opinion before the court that links Ms. Thomson’s medical complaints to the heat pump. There is no direct evidence before the court from Mr. McStravick regarding his medical complaints. Finally, there is no medical opinion that purports to link Mr. McStravick’s medical complaints to the noise levels emanating from the heat pump.
Balance of Convenience Does Not Favour Granting the Injunction
[21] The balance of convenience does not favour granting the injunction.
[22] The plaintiffs rely on the affidavit of Craig Dawson, the owner of a heating and air conditioning company in Ottawa. Mr. Dawson installs, repairs, and consults on “all types” of HVAC heating and cooling solutions for residential and commercial customers in Ottawa. He was asked to provide an opinion regarding the industry norms pertaining to the installation of the heat pump, whether the unit was installed in accordance with industry norms, and whether there are options available to the Benjamins as to relocation of the unit. Although Mr. Dawson describes other possible locations on the Benjamins’ property for the heat pump, he also states that he was unable to verify “the by-laws of this particular address in regards to [sic] appliances to lot lines.”
[23] Mr. Dawson’s conclusions regarding moving the heat pump are speculative. The applicable by-laws have not been put before the court. There is no evidence that the relocation of the heat pump would not contravene these unknown by-laws. Counsel’s assertion that the heat pump has to go “anywhere” where it is not injuring the plaintiffs and to a location where it no longer emits more than 30 dBA at the property line between the plaintiffs and the defendants is of no assistance to the court.
Disposition and Costs
[24] For these reasons, the plaintiffs’ motion is dismissed.
[25] The parties are encouraged to agree on the issue of costs of the motion, including the prior attendance on May 20, 2021. In the event they are unable to agree, the parties are permitted to make brief written submissions to supplement their costs outlines. Submissions are not to exceed three pages. The defendants are to provide their costs submissions by August 25, 2021. The plaintiffs are to provide their responding submissions by September 8, 2021. There will be no reply. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as amongst themselves. Submissions are to be emailed to SCJ.Assistants@ontario.ca.
Justice R. Ryan Bell
Date: August 11, 2021
COURT FILE NO.: CV-20-83948
DATE: 2021/08/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Rowan Thomson and Kevin McStravick, Plaintiffs (Moving Parties)
AND
Jerry Benjamin and Ryan Benjamin, Defendants (Responding Parties)
BEFORE: Justice R. Ryan Bell
COUNSEL: Edward C. Conway, for the Plaintiffs
Gordon S. Campbell, for the Defendants
ENDORSEMENT
Justice R. Ryan Bell
Released: August 11, 2021