Fireworks & Foul Smells: Dealing with Nuisance Neighbours

Love thy neighbour ‒until they do something really stupid!

A nuisance is created when a person repeatedly allows the escape of noxious things onto someone else’s property: smells, sounds, insects, animals, and many other things can be nuisances if their presence interferes with the reasonable use or enjoyment of another’s property.

Fireworks have to be at the top of the list when it comes to horses and other animals. At best, it is ignorance and at worst, mischief. Launching fireworks in a field close to horses, cattle, or other animals can cause serious suffering. The animals can be hurt from bolting in the dark, breaking through fencing or worse, getting tangling in wire. If they get free, we then have large animals on a dark road, frightened and staring at a pair of headlights.

Scroll to continue with content

Everyone must put up with some discomfort caused by the lawful actions of their neighbours. Just because your neighbour has the occasional urge to mow his lawn at 7:00 a.m. on a Saturday does not make him a nuisance. If, however, his acts repeatedly result in noise that causes you to suffer inconvenience and loss of enjoyment of your own property, you can take steps to stop him. Thus, the constant blaring of a loud stereo or the sounds of a horse show with traffic and horses coming and going at all times of the day and night could be actionable in nuisance.

The usual legal remedy for an action in nuisance is the granting of an injunction. This is a court order preventing the wrongdoer from continuing the offensive action that is affecting his neighbours’ property. An injunction requiring a stable to cease creating noise after a certain hour in the day or to stop emitting offensive smells could basically shut down the business. Injunctions can be a very serious problem for stable owners and operators near suburban areas.

There have been cases where terrible smells emanating from a farm have been classified as a nuisance, and an injunction was granted to prevent the farm from emitting such smells. In the case of Atwell v. Knights, the defendant operated a “caged hen-laying business” that consisted of a large number of hens occupying two galvanized iron buildings near a village. The hens were well fed and excreted accordingly. The buildings were ventilated by fans and, unfortunately, the powerful and obnoxious odour emanating from the hen-houses drifted over to the neighbours’ properties. Apparently, barbeques and picnics had to be cut short and windows closed depending on which way the wind was blowing.

The Court decided that the offensive smell was indeed a nuisance and granted an injunction against the defendant, despite the defendant’s request that an injunction be denied on the grounds that the plaintiffs could be compensated by money and that the cost of moving the hen-houses created a hardship against the defendant.

In 2007, four week-long equestrian events took place on a farm in Halton Hills. Surrounding neighbours complained that the events created noise which interfered with the reasonable enjoyment of their respective properties. In 2008, the neighbours appealed a decision approving six equestrian events on the same property, Darcie v. Niagara Escarpment Commission. The common law prevents people from creating noise which interferes with the reasonable enjoyment of another’s property. However, a municipal by-law was more restrictive and prevented noise disturbing the ‘peace, quiet, comfort, rest, and enjoyment’ of another’s property.

Despite the more restrictive requirements in the by-law, the neighbours’ appeal was still denied due to the noise prevention measures taken by the hosts. These measures included reducing the hours of the event from 8:00 a.m. to 7:00 p.m. and limiting the amount of speaker announcements by replacing certain announcements with chalk-board directions. Courts will consider the nuisance’s frequency, duration, and degree of impact on a case-by-case basis.

In a Nova Scotia case, O’Regan v. Bresson, the Court raised an interesting point regarding nuisance which still remains good law in Canada. The fact that a complainant purchases property on which a nuisance is already being committed does not prevent him from pursuing a legal remedy; i.e. just because he “comes to” the nuisance does not prevent him from recovering damages. So the fact that your stable operation is there before the subdivision was even built does you little good in a suit for nuisance.

Fortunately, statutes have been enacted in Ontario and elsewhere that protect farmers. The Farming and Food Production Protection Act, 1998, addresses some of the issues that arise from the competing interests of agricultural operations and adjacent properties. Farmers are protected from nuisance complaints made by neighbours, provided they are following normal farm practices. No municipal by-law can be passed to restrict a normal farm practice carried on as part of an “agricultural operation”. In addition, OMAFRA has set up the Normal Farm Practices Protection Board (NFPPB) to protect farmers from unreasonable nuisance complaints. This includes a detailed complaints procedure for resolving nuisance complaints, including odour, noise, dust, flies, smoke, light, and vibration, through negotiation, mediation, and if necessary, a decision of the Board. For more information, go to the Ontario government’s Citizen’s Guide to the NFPPB.

Other provinces have statutes that provide protection to horse farms. In Prince Edward Island’s Farm Practices Act, “agricultural operation” explicitly includes the act of “raising or keeping livestock, including poultry and horses” when done in “the expectation of gain or reward.”

Horse shows and other events would not fall into the realm of ‘normal farm practices’ afforded protection under the various provincial statutes. If contemplating whether to host an event, make sure to first check if your municipality has a noise bylaw. Next, ensure that the noise created by your event will not cause unreasonable harm to neighbouring residents of your farm. In classifying noise as unreasonable, courts will look at the frequency, duration, and degree of impact of the noise. Lastly, if a nuisance is created by a horse show or clinic, the farm owner will be liable, regardless of the measures they may have taken to ensure that a nuisance was not created. Care and caution is no defence to the creation of a nuisance.

The complaint of nuisance is an objective standard that will continue to change with society. The smells and sounds of the farm ‒ something that was an absolute necessity 60 years ago ‒ is now considered a nuisance and pushed out further from many of the towns and cities that once supported its existence.

Owners of equine facilities can turn the tables and push back, as industry and suburbia are annoying, too! There are statutes in most provinces to protect us. City folk can also be a nuisance; if they park their cars and climb your fences to pat the pretty horses, that is trespass. You can politely ask them to leave or call the police. If your neighbours are shooting off fireworks, in most municipalities there is a by-law prohibiting this. Check with the township and report them. If it is a simple matter of ignorance, educate them and make a friend. If the matter cannot be resolved with the involvement of the municipality or the police, you have the Courts and provincial boards set up to help resolve these conflicts.

*****

Catherine E. Willson is counsel in the law firm, Goldman Sloan Nash & Haber LLP, (www.gsnh.com) a full service law firm in Toronto, Ontario. This information deals with complex matters and may not apply to particular facts and circumstances. The information reflects laws and practices that are subject to change. For these reasons, this information should not be relied on as a substitute for specialized professional advice in connection with any particular matter.