340909 Ontario Ltd. v. Huron Steel Products (Windsor) Ltd.
340909 Ontario Ltd. v. Huron Steel Products (Windsor) Ltd.
and Huron Steel Products
 O.J. No. 997
73 O.R. (2d) 641
21 A.C.W.S. (3d) 1242
Toronto No. 16804/84 and Windsor No. 684/86
High Court of Justice
June 14, 1990.
David S. Wilson, for plaintiff.
R.G. Colautti and M. Nazarewich, for defendants.
POTTS J.:-- As a preliminary matter, the plaintiff requested an order adding Huron Steel Products as a party defendant, effective July 1, 1987. This order is granted.
The plaintiff, 340909 Ontario Ltd., is an Ontario corporation which owns a 22-unit apartment building with the municipal address of 3677 Sandwich Street West in the City of Windsor. The defendant, Huron Steel Products (Windsor) Ltd. (Huron Steel), is an Ontario corporation which owns lands and premises with the municipal address of 3710 Peter Street in the City of Windsor. It operates a stamping plant on these premises.
The plaintiff constructed the apartment building in 1976 and began renting out units in 1977. This building is immediately to the north-east of the defendant's plant. The plant has been in operation since 1947. The level and type of operations at Huron Steel have varied over the years. A major expansion to the plant took place in 1972. It is this part of the plant that is of some concern in this matter.
In 1977 Huron Steel Products (Windsor) Ltd. bought the assets of Huron Steel and Mr. Morrison became president of the company, a capacity in which he remained until January 1989 when he sold his interest.
In October 1979, the defendant purchased an 800-tonne (880-ton) Benelli press (#1 press). It was installed in the north-eastern corner of the Huron Steel plant, almost directly across the road (Prince Road) from the plaintiff's apartment building.
According to Mr. Douglas Kenney, president of the plaintiff company, he first became aware of complaints about noise and vibration from the Huron Steel plant in 1979. He spoke to Mr. J.E. Dinsmore, vice-president of Huron Steel, and went to the Ministry of the Environment. He also had a lawyer's letter sent to the defendant, pointing out that the noise and tremors from the Benelli press were causing tenants to leave and were making it difficult to rent apartments.
The Ministry of the Environment commenced investigations of the Huron Steel plant in 1980. The Ministry took impulse sound measurements a number of times over the period 1980-1988. In addition, Mr. John Coulter, an acoustics and vibration expert, and Dr. A. Lightstone, an electrical engineer and acoustics expert, took sound and vibration measurements for the purpose of this action.
In 1983 Huron Steel installed a second 800-tonne (880-ton) Benelli press (#2 press) and built a new addition for that purpose. The defendant had consulted Valcoustics Canada Ltd., in particular Dr. Lightstone, about how to construct the addition in order to minimize sound and vibration levels. The defendant eventually received a certificate of approval, pursuant to s. 8 [since am. 1988, c. 54, s. 5] of the Environmental Protection Act (E.P.A.), R.S.O. 1980, c. 141, for the #2 press and the addition to the existing plant. There have been no complaints about sound or vibration emanating from the #2 press.
According to Morrison, there have been numerous changes to the operation of the #1 press and the building envelope over the years in an attempt to deal with the sound and vibration problem.
TYPE OF ACTION
The plaintiff claims damages and injunctive relief against the defendant for nuisance alleging:
(a) the defendant's activities as a whole, and in particular the operation of the #1 press, cause noise and ground vibration which unreasonably interferes with the plaintiff's use and enjoyment of its property. The interference is more acute at night, especially when the Prince Road doors of the Huron Steel plant are open;
(b) the use of scrap metal bins on the side of the plant closest to the plaintiff's apartment is an unreasonable interference, particularly at night;
(c) the use of three shifts at the plant is unreasonable.
The damages claimed by the plaintiff are for loss of rental income and loss of value of the apartment building allegedly caused by the defendant's nuisance. The injunction the plaintiff seeks is to restrain the defendant from operating the #1 press until sound and vibration levels comply with E.P.A. guidelines; to prohibit the operation of the #1 press while the plant doors are open; and to limit the use of the scrap bins.
DOES THE PLAINTIFF HAVE A CAUSE OF ACTION IN NUISANCE?
Private nuisance can be defined as an unreasonable interference with the use and enjoyment of land. J.G. Fleming, in The Law of Torts, 4th ed. (Sydney: Law Book Co., 1971), states at p. 346 that the court goes through a balancing process to determine whether a nuisance exists or not:
The paramount problem in the law of nuisance is, therefore, to strike a tolerable balance between conflicting claims of landowners, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other. Reconciliation has to be achieved by compromise, and the basis for adjustment is reasonable user. Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort of the time and place. Reasonableness in this context is a two-sided affair. It is viewed not only from the standpoint of the defendant's convenience, but must also take into account the interest of the surrounding occupiers. It is not enough to ask: Is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, Is he using it reasonably, having regard to the fact that he has a neighbour?
Furthermore, each case must be considered in light of the particular facts in question. In Oakley v. Webb (1916), 33 D.L.R. 35, 38 O.L.R. 151 (C.A.), Hodgins J.A. stated at p. 158 O.L.R.:
I think the rule stated by Middleton, J., in Appleby v. Erie Tobacco Co., 22 O.L.R. 533, at p. 536, and adopted by Sutherland, J., in Beamish v. Glen, 36 O.L.R. 10, as correct, is the proper test to be applied in this case. It is that "an arbitrary standard cannot be set up which is applicable to all localities. There is a local standard applicable in each particular district, but, though the local standard may be higher in some districts than in others, yet the question in each case ultimately reduces itself to the fact of nuisance or no nuisance, having regard to all the surrounding circumstances.
"Unreasonableness" in nuisance law is 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:
(1) the severity of the interference, having regard to its nature and duration and effect;
(2) the character of the locale;
(3) the utility of the defendant's conduct;
(4) the sensitivity of the use interfered with.
It is not necessary to deal with the sensitivity of the use interfered with, since the plaintiff's use of its property is not an unusually sensitive one. The remaining three factors will be discussed below.
(1) The severity of the interference, having regard to its nature, duration and effect
(a) Nature of the interference
The interference must be considered from the plaintiff company's point of view. However, the noise and vibration are allegedly disrupting the use and enjoyment by the tenants. This will ultimately affect the plaintiff as landlord, since the interference could be one reason why a tenant moves out. Therefore, the interference from the tenants' points of view is relevant, since it is part of the interference from the plaintiff's point of view.
According to both the plaintiff's and defendant's witnesses, the nature of the interference is sound and vibration from the Huron Steel plant, in particular the operation of the #1 press.
It is well established that noise and vibration can cause an actionable nuisance, as was stated in cases such as Banfai v. Formula Fun Centre Inc. (1984), 51 O.R. (2d) 361, 34 C.C.L.T. 171, 19 D.L.R. (4th) 683 (H.C.J.); Duchman v. Oakland Dairy Co.,  1 D.L.R. 9, 63 O.L.R. 111 (C.A.); Gagnon v. Dominion Stamping Co. (1914), 7 O.W.N. 530 (H.C.J.).
Morrison testified that the #1 press was purchased to blank heavy materials regularly without breaking down. When blanking takes place, the vibration is caused largely by the force of the press hitting the material and the sound is produced mainly by the shearing of the material.
Mr. Dino Sbrocca was a tenant in the plaintiff's apartment building from November 1986 until November 1987. His unit was on the side of the building closest to the Huron Steel plant. He described the noises coming from the plant as "very, very loud" and as a "thundering impact". The vibrations shook his water bed. He stated that because of the noise it was often difficult for him to fall asleep at night. In Walker v. Pioneer Construction Co. (1967) Ltd. (1975), 8 O.R. (2d) 35, 56 D.L.R. (3d) 677 (H.C.J.), the court placed particular emphasis on the night-time noise emanating from the defendant's asphalt plant. At p. 49 O.R., Morden J. stated:
In complaining of the noise at night and, with greater relevance on the evidence with respect to recent operations, in the early morning, I do not think that the plaintiffs are giving vent to any abnormal sensitivity or delicacy. I do not think that "the law of give and take" obliges them to absorb this interference without some form of redress. The character of the neighbourhood is not such that the defendant can reasonably expect to indulge itself during normal sleeping hours as it does during the balance of the day. Apart from the intermittent noises of a traffic flow, of reduced proportions, during the night and the odd train, the evidence does not indicate any other significant sources of sound or noise in the area during the night and early morning. This comparative stillness is substantially interrupted by the start-up of the asphalt plant, for the most part, at 6 a.m. While it may well be important to the defendant, if its interests alone are looked at, to get an early start, it is unreasonable to expect the plaintiffs to put up with the noise at that time or earlier. In this regard, to refer to the language of Fleming quoted earlier, the defendant is not using its property reasonably having regard to the fact that it has a neighbour.
In his notice of termination of lease dated October 1, 1987, Sbrocca wrote, "the excessive noise coming from Huron Steel was a major factor in my decision" to not renew.
Mr. Anthony Campigotto testified that he grew up at 3686 Peter Street, and in 1979 he bought the house next door, at 3676 Peter Street. This house is across the intersection from Huron Steel which, according to the plaintiff's counsel, is nearly twice as far from the plant as the plaintiff's apartment building.
Campigotto stated that he had no difficulty with Huron Steel or the other industries in the area until the #1 press was installed in 1979. On cross-examination he did say there was some problem with noise in the area before this, but that it did not bother him. He testified that the "Huron Steel noise stood out like a sore thumb", and that the china in the cabinet, the pictures on the wall and his bed were affected by vibrations from the operation of the #1 press. It was particularly bad at night.
Furthermore, the Huron Steel doors were often left open. According to Campigotto, he called the plant and Morrison to close them, but was told that they had to stay open for circulation purposes. Campigotto stated that he moved in 1984 because of the disruption he was experiencing from the Huron Steel plant.
Mr. and Mrs. McCallum have resided at 3638 Peter Street for 18 years. Their house, according to plaintiff's counsel, is about three times as far from Huron Steel as the plaintiff's apartment building.
Mrs. McCallum testified that she first noticed noise and vibration from Huron Steel in the ealy 1970s. One press hit harder than the others but she could not recall when she first noticed it. She described it as very irritating, especially at night. She stated that there has been no improvement in the last few years but the past month has been better.
Mr. McCallum testified that he has never heard anything as loud as the "big press" at Huron Steel. The problems started when this press went in and began to get very bad in the early 1980s, when it began to operate day and night.
Mr. Walter Smith has been employed by the plaintiff as superintendent of the apartment in question since late 1981. He testified that he has had trouble renting apartments on the Prince Road side. The noise from the Huron Steel plant is louder than anything in the neighbourhood. The vibrations shake the apartment building and rattle glasses in his cupboard. During warm weather the doors of the plant are often open all night, Smith said.
Douglas Kenney testified that he went to the Ministry of the Environment about Huron Steel in 1980 and was told that complaints had been received about the plant. He stated that the noise carries inside the apartment building and vibrations can be felt on the second floor. The noise increases when the doors of the plant are left open. There is also a problem with the use of scrap containers late at night.
Kenney circulated a questionnaire to tenants to determine problems with the living conditions. He stated that the noise and vibration from Huron Steel has caused lengthy vacancies in the apartment building and that in order to attract tenants he has not increased the rents.
Three expert witnesses testified in the area of sound and vibration assessment. I accept the proposition that was put forward in Halsey v. Esso Petroleum Co.,  2 All E.R. 145, that such evidence is helpful to confirm or disprove the evidence of other witnesses.
Mr. Leslie George Kende is an expert in sound and vibration assessment who works for the Ministry of the Environment, Pollution Control Branch. He discussed the applicability of the E.P.A. to Huron Steel. Guidelines which set out levels for impulse sound are used by the Ministry. These levels are used to determine whether a certificate of approval will be issued by the Ministry for a new operation or addition to an existing industry. As set out in Publication NPC-105, the level for stationary sources existing up to January 1, 1980, is 60 dBAI, measured at the nearest receptor, and the level for stationary sources established after this date is 50 dBAI.
There was a great deal of discussion about the applicability of the E.P.A. to the Huron Steel operations. Both counsel agreed that the Act, guidelines and certificate-of-approval process applied to the #2 press.
This press does have a certificate of approval and so does conform to the guidelines. The disagreement is about whether the #1 press required a similar certificate. Plaintiff's counsel contends that the 1972 E.P.A. [S.O. 1971, c. 86] is substantially the same as the 1980 E.P.A. and that a certificate is required.
Defendant's counsel agrees that the Acts are substantially the same, but say that Huron Steel did not require such a certificate for the #1 press because the sound and vibration emitted did not come within the definition of "contaminant" in the Act [s. 1(1)(c) since rep. & sub. 1988, c. 54, s. 1(2)]:
1(1)(c) "contaminant" means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from the activities of man that may,
. . . . .
(iii) cause harm or material discomfort to any person,
He asserts that "cause harm or material discomfort" refers to common-law nuisance, which is what this court must resolve in this situation.
Plaintiff's counsel stresses the word "may" and says that if there is a possibility that the sound and/or vibration may cause such harm or discomfort, then the Ministry of the Environment must be notified and the guidelines would then be applied. He stresses that the idea behind the E.P.A. provisions is to head off possible nuisances before they begin.
I agree with the plaintiff's position that the E.P.A. applied to the #1 press and that a certificate of approval was required from the Ministry of the Environment. I do not know why this process was not strictly adhered to by the Ministry for the #1 press. Possibly the Ministry was trying to persuade rather than compel Huron Steel and other existing industries to comply with the guideline levels.
According to Kende and Coulter, both of whom were involved in drafting the guidelines in question, the levels for impulse sounds were based on sociological studies which determined that 50 dBAI was a tolerable level for the "average person". Sixty dBAI was a concession to existing industries. A reading above these numbers would not necessarily constitute a common-law nuisance, since there are other important factors which must be considered before such a conclusion is reached. Canada v. Saskatchewan Wheat Pool (1983), 23 C.C.L.T. 121, 143 D.L.R. (3d) 9, 45 N.R. 425,  3 W.W.R. 97 (S.C.C.), dealt with negligence, but it is equally applicable to nuisance. The Supreme Court held that a breach of a statutory provision does not result in automatic liability. However, Dickson J. stated at p. 25 D.L.R.:
3. Proof of statutory breach, causative of damages, may be evidence of negligence
4. The statutory formulation of the duty may afford a specific, and useful, standard of reasonable conduct.
The guideline levels of 50 dBAI and 60 dBAI are useful standards with which to assess the expert evidence as to sound measurements.
Kende made observations and took sound readings of the Huron Steel plant operations in December 1980. He testified that the #1 press was clearly audible and easily identifiable inside and outside the plant. The sound "was not a residential neighbourhood noise" and he "would not want to live with it". The impulse sound levels he measured had a Logorithmic Mean Impulse Level (L.L.M.) of 80 dBAI. These were taken with the Huron Steel shipping doors on Prince Road open. He attempted to take vibration measurements at this time but the equipment was not working properly.
Kende performed further sound tests in July 1982, using a different testing procedure. He took readings from two Peter Street properties (3686 and 3676 Peter Street) and measured the extent to which sound levels exceeded the general ambient. He recorded an equivalent sound level (leq) of 69 dBA (not impulse) which exceeded the traffic level of 59 dBA and was in violation of the other guidelines the Ministry of the Environment uses.
In July 1988, the Ministry of the Environment took impulse sound measurements of Huron Steel from the apartment parking lot, with the plant doors closed. The L.L.M. was 70 dBAI.
Lightstone and Coulter both took impulse sound and vibration measurements of Huron Steel plant operations. They agree that the impulse sound level at the apartment building is from 70-73 dBAI, with the Prince Road doors closed. Coulter also took indoor readings at the apartment with the window open and recorded about 60 dBAI. The E.P.A. guidelines are not meant for indoor readings. However, Lightstone agreed that this reading appears consistent with what he would expect, i.e., 13-14 dBAI lower indoors. It should be mentioned that on cross-examination, Lightstone agreed that impulsive sounds are more intrusive than continuous ones.
Coulter and Lightstone agree that the #1 press is the source of the problem, although other sounds come from the plant as well. The press sound would be more noticeable at night, especially with the windows open, because the ambient levels are lower. Lightstone emphasizes the fact that many of the apartments facing the plant are equipped with air conditioners. The air conditioners, when running, would supposedly negate much of the sound from Huron Steel.
The major disagreement between Coulter and Lightstone is over vibration measurements. They did agree that there are no generally accepted levels for vibration that can be used in these types of circumstances. They also appear to agree that the situation has improved since 1986, when micro-isolators were installed on the #1 press.
Coulter stated that there are three different International Standards Organization (I.S.O.) levels for vibration presently under consideration. He took vibration readings in 1985 and found as follows:
During our attendance at the premises, we determined that the vibration is quite noticeable throughout the building including the suites on the side of the building opposite Prince Road (the north side of the building). Our measurements on the fully exposed south side (at the laundry room location) of the building indicate that there are two components to the vibration; in the range of 28-30 Hz, there is a pulse train of approximately 10 cycles with a relatively steady peak level of approximately 30 mm/sec--. In the frequency range of approximately 14-15 Hz was a cycle and a half of pulse with a peak level of approximately 140 mm/sec --.
It has been our experience that once the vibration levels are more than barely perceptible they become quite annoying to residential occupants. The levels measured here are 5-10 times that which is considered barely perceptible.
According to Coulter, his vibration readings are two times, or two and one-half times, or seven times the limit prescribed by the three I.S.O. levels in question.
Lightstone looked at the proposed I.S.O. Standards and also at the Ministry of the Environment draft NPC-207 for vibration levels. He took issue with the type of equipment used and the way Coulter measured vibration. He also asserted that Coulter's measurements are of little assistance, since they were taken before the micro-isolators were installed on the #1 press. Lightstone took vibration measurements after the isolators went on and concluded as follows:
2. The ground vibration observed from the original Benelli press was somewhat larger, due to both the type of operation and the lesser distance. It marginally exceeded the most stringent of the proposed (night) ISO criteria. It complied with both sets of proposed MOE criteria.
He went on to discuss the impact of a building's structure on vibration levels and continued:
4. Unless there are unusual vibratory responses on the upper levels of the apartment building (of which we have no evidence), it is concluded that the observed vibration levels attributed to both Benelli presses are generally within levels considered acceptable, although perceptible from time to time.
Coulter concluded that, based on sociological studies, the noise and vibration levels would be "unacceptable to the apartment inhabitants". Lightstone stated he would not try to predict whether they would be acceptable or not for the tenants. It would be up to the individual tenants to say whether they were disrupted, although Lightstone said he would not be surprised if some people were annoyed.
The Huron Steel plant has been in operation since 1947. According to Mr. Andy Paonessa, who worked at Huron Steel from 1955 to 1978 and as plant manager from 1972, stamping occurred at the plant when he was there.
The number of shifts varied over the years. In 1974 or 1975, it was a three-shift operation, at which time it went to a one-shift, but when Morrison purchased the plant in 1977, it went to three shifts in three months. This continued after the #1 press was installed in 1979.
The major sound and vibration problems seem to occur when the #1 press is blanking heavy gauge material. This presumably would occur when orders had to be filled. Witnesses testified that, although the problem was not continuous, it was fairly regular. The press often operated during the night and on weekends, although there were periods of time when it did not run at all. The situation has continued since 1979, i.e., ten years.
To be successful, the plaintiff must show that the alleged nuisance has caused it damage. As discussed above, at least one of the plaintiff's tenants, Sbrocca, testified that he moved out primarily because of the noise and vibration coming from Huron Steel. Kenney testified that he received other tenant complaints about Huron Steel and that rents had not been increased and standards had been lowered in order to keep the vacancy rate down. Other property owners in the area testified as to the disruption they had experienced from the Huron Steel operations.
Mr. F.R. Jordan was put forward by the plaintiff as an expert in the value of real estate. He testified that he had examined the rent rolls of the plaintiff's apartment building for 1979-1987, in comparison with Canada Mortgage and Housing Corporation (C.M.H.C.) statistics. Based on a capitalized income approach, he concluded that the building lost revenue because of the comparatively high vacancy rate. Jordan stated that there was something abnormal about the property that caused the high vacancy rate and in his report he pointed to the disruptive Huron Steel operations as a probable cause. Jordan also concluded that there had been a loss in value of the building of about $71,000.
The defendant called two expert witnesses to discuss the effect the alleged nuisance had on the plaintiff. Mr. Glen Ladouceur is a business valuator. He examined Jordan's report and did his own study and concluded that the apartment as an income-producing asset did better than three similar buildings, worse than three and the same as one. He testified that he could not conclude that there was any loss in value based on these comparisons.
Mr. D. Rostant is an expert in chartered accountancy. He examined Jordan's report and the rent rolls. He concluded that it was not clear that the plaintiff suffered any loss of rental income over 1979-1988 because of Huron Steel operations.
I accept that the effect of the Huron Steel operations has been such as to cause some damage to the plaintiff.
(2) Character of the locale
Counsel for the plaintiff contends that technological advances have weakened the application of this type of "defence". Defendant's counsel places much greater emphasis on this aspect. Relatively recent cases continue to hold that this is an important factor and I accept it as such: In Walker, supra, Morden J. stated at p. 38 O.R.:
The law makes it clear that the character of the locality is of importance in determining the standard of comfort which may reasonably be claimed by an occupier of land. "What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey": Sturges v. Bridgman (1879), 11 Ch.D 852 at p. 865.
The Huron Steel plant is bordered by Sandwich Street to the north (approximately), Peter Street to the south, Hill Avenue to the west and Prince Road to the east.
Mr. Tony Ruffalo is the zoning officer with the City of Windsor. He testified as to the zoning history of Huron Steel and surrounding property. In 1948 the area was designated as M-2, heavy industrial. It was rezoned in 1979 to M1.3, which is a lighter manufacturing designation. However, there was an exemption to this zoning, specifically to allow for stamping, forging and casting at the Huron Steel property. In 1986, the core area of Windsor was rezoned to MD1.2. This is a light industrial designation which does not permit a stamping plant. The reason for this change, according to Ruffalo, was that the previous zoning was not in keeping with present uses. Huron Steel again received an exemption to this zoning to allow for its operations.
According to Allen Linden, in his book Canadian Tort Law, 4th ed. (Toronto: Butterworths, 1988) at p. 504, reference to relevant zoning legislation is only of limited assistance in determining the character of the locale. However, I accept that zoning is one aspect to be considered in this regard.
Kenney testified that the locale is basically residential. On cross-examination, he was led through a map and a series of photographs and asked if he recognized various other factories in the area.
Campigotto described the area when he was growing up. It would appear that it was more of a residential character at the time than it is today. According to Campigotto, at the present time the east side of Hill Avenue is residential, the north side of Sandwich is residential and Peter Street is residential. Truck traffic on Sandwich Street and Prince Road has been quite heavy, although this has lessened somewhat in recent years.
Jordan testified that the nature of the neighbourhood is primarily low-rise apartments on Sandwich Street, older homes, a few commercial and a few industrial properties. On cross-examination, Jordan stated that the area is not ideal for residential apartments because of the "negative externalities" associated in part with the industries in the surrounding area.
For the defendant, Morrison testified that he drove through the area and counted 50 residences and 32 factories. On cross-examination, Paonessa testified that east of Prince Road is mixed commercial, residential and industrial. Peter and Sandwich Streets are all residential.
In closing argument, plaintiff's counsel characterized the locale as mixed land use. It is an older part of Windsor on which recent zoning restrictions have been imposed. North of Sandwich is industrial, with some commercial and residential. West of Sandwich is light industrial, with some commercial and residential. South of Sandwich is basically the same. East is mostly residential. Huron Steel and the apartment are on their respective zoning borders.
Defendant's counsel argued that the neighbourhood is basically heavy industrial. Lands west of Prince Road have been zoned heavy industrial since 1948. East of Prince Road has traditionally been a mix of industry and residences. Defendant's counsel agrees that Huron Steel and the apartment are on their respective zoning borders.
I find that the character of the locale is one of "mixed use". The area contains apartment buildings, houses, at least one school, and one church, commercial establishments, and factories.
The standard of comfort to be expected varies from area to area, depending on the character of the locale in question. According to Linden, Canadian Tort Law, p. 505, the standard to be expected in a predominantly residential area differs from that of an industrial or commercial one. However, "[t]he process of determining the proper standard becomes more difficult when the area is one of mixed or changing use".
Mention should be made of the Huron Steel operations prior to 1979. Both Morrison and Paonessa testified that for most of its existence, the Huron Steel plant has contained heavy stamping operations, including presses as big and bigger than the #1 press.
At one time, the plant blanked bumpers, which according to Paonessa would have produced more noise and vibration than the heaviest gauge metal blanked by the #1 press. Furthermore, the plant worked a three-shift and a two-shift operation before 1977.
The defendant contends that these factors, in addition to the predominantly "heavy-industrial" character of the neighbourhood, indicate that there was no "quantum leap" when the #1 press was installed. The nature and character of the activities were on the whole the same as previous activities at the plant. Therefore, the plaintiff moved to the alleged nuisance.
First of all, it is well established that it is no defence to a nuisance action that the plaintiff moved to the nuisance: Linden, Canadian Tort Law, pp. 506-07). Secondly, many of the witnesses testified that although there was some noise coming from the Huron Steel plant prior to 1979, the problems with noise and vibration began when the #1 press was installed. Rushmer v. Polsue & Afieri Ltd.,  1 Ch. 234 (C.A.); affd  A.C. 121, [1904-7] All E.R. Rep. 586 (H.L.), stands for the proposition that the addition of a fresh noise may give rise to a nuisance no matter what the character of the locale. In the Court of Appeal decision, Cozens-Hardy L.J. stated at pp. 250-51:
A resident in such a neighbourhood must put up with a certain amount of noise. The standard of comfort differs according to the situation of the property and the class of people who inhabit it. ... But whatever the standard of comfort in a particular district may be, I think the addition of a fresh noise caused by the defendant's works may be so substantial as to create a legal nuisance. It does not follow that because I live, say, in the manufacturing part of Sheffield I cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep at night almost impossible, although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard; and it would be no answer to say that the steam-hammer is of the most modern approved pattern and is reasonably worked. In short ... it is no answer to say that the neighbourhood is noisy, and that the defendant's machinery is of first-class character.
(3) The utility of the defendant's conduct
The importance of the defendant's enterprise and its value to the community is a factor in determining if the defendant's conduct is unreasonable. However, this tends to go to the leniency of the remedy, rather than liability itself. Furthermore, the question whether the defendant took all reasonable precautions is relevant as to whether the interference is unreasonable.
Morrison and defendant's counsel mentioned that the Huron Steel plant is important to the community, since it employs about 200 people. Supposedly these jobs would be at risk if Huron Steel were required to make extensive structural changes to the plant to cut the noise and vibration from the #1 press.
The Ministry of the Environment became involved in the Huron Steel situation in 1980. The Ministry conducted a number of sound-level tests which indicated that the plant operations, in particular the #1 press, produced sound in excess of the E.P.A. guidelines. A series of letters and meetings took place between representatives of the Ministry and Huron Steel. Huron Steel assured the Ministry that the east-side doors would be kept closed and that serious attempts would be made to cut the noise and vibration produced by the #1 press. Despite these assurances, nothing was done to improve the situation in any satisfactory way. A registered letter dated July 20, 1982, sent by Kende of the Ministry to the attention of Morrison, indicates that Huron Steel operations continued to radiate noise and vibration in violation of E.P.A. levels.
Morrison testified in detail about what Huron Steel has done in an attempt to cut noise and vibration emanating from the plant. The following are some examples:
-- initially installed #1 press on a double thickness fabreeka pad;
-- when the original material deteriorated, the face of the #1 press pit was excavated and lined with one-inch thick heoprene rubber to isolate it from the floor;
-- in December 1986, micro-isolators were installed under the #1 press at a cost of about $75,000 and three-week shut-down time;
-- the glass windows on the east wall were blocked in the concrete blocks;
-- the shipping doors were moved to the west side, which reduced truck traffic on Prince Road near the apartment building;
-- the #1 press was refitted with a compound die in 1986 or 1987 to reduce the noise produced when the press hit. The cost was about $110,000;
-- scrap-metal bins have been moved as much as possible to the west side of the plant away from the residences;
-- shipping doors on the east wall are kept closed as much as possible, although one of them is sometimes opened during hot weather;
-- the possibility of insulating the east wall or moving the heavy stamping operations from the #1 press to the #2 press has been investigated and found to be unfeasible.
I accept Mr. Morrison's contention that a lot of thought and effort went into the planning, purchase and installation of the #1 press. I also appreciate that the defendant has taken what it considers to be all reasonable and economically practical steps to alleviate the noise and vibration problem. However, the expert evidence indicates that improvements could be made to the building envelope that would ameliorate the situation.
Huron Steel consulted Valcoustics Ltd., in particular Dr. Lightstone, when plans for the #2 press were being made. Lightstone made recommendations about the new addition to the plant, which would contain the #2 press, in order to meet E.P.A. guideline levels. As both Morrison and Lightstone have testified, it was not part of the consultation mandate to make recommendations about improvements to the #1 press and the building envelope around it.
The east wall of the part of the plant which contains the #1 press is made of concrete on the lower third, sheet metal in the middle third and translucent fibreglass on the upper third. On cross-examination, Lightstone agreed that sheet metal and fibreglass are not effective in preventing noise from escaping from the plant. He also agreed that the cupola above the #1 press, which contains windows, would allow sound to escape as well.
According to Lightstone, there is no question that modifications could be made to the plant envelope to reduce sound levels. Existing levels could be brought down by about 5-10 dBAI with changes to the plant on a staged basis. In Lightstone's opinion, 60 dBAI is an achievable level for the Huron Steel plant, although this would certainly not mean that the sound would be imperceptible.
Coulter and Kende also testified as to the kinds of alterations in the building envelope which would reduce the sound and vibration to a tolerable level.
After hearing the evidence I heard argument as to the status of the plaintiff to bring an action in nuisance, following which, on June 6, I made a finding that the plaintiff did have status to bring an action in nuisance regardless as to whether or not the damages it claimed were permanent. I did so for the following oral reasons.
Defendant's counsel asserted that the plaintiff, as landlord (reversioner), only has a cause of action if it can prove permanent damage to the reversion.
In support of this contention the defendant's counsel discussed two English authorities: Simpson v. Savage (1856), 1 C.B. (N.S.) 347, [1843-60] All E.R. Rep. 748, 140 E.R. 143, and Mumford v. Oxford, Worchester & Wolverhampton Railway Co. (1856), 1 H. & N. 34, 157 E.R. 1107. Both involve actions for nuisance. Both characterize the nuisance as being temporary in nature, and on this basis the courts denied the plaintiffs, described as reversioners, status to maintain their actions.
The decisions in Simpson and Mumford relied on another English case, Baxter v. Taylor (1832), 4 B. & Ad. 72, 110 E.R. 382. In Baxter the tort in question was trespass. The court held that the trespass did not cause permanent damage to the property so there was no prejudice to the reversionary interest. Therefore, the reversioner had no cause of action.
Defendant's counsel also referred to the Ontario case of Park v. White (1893), 23 O.R. 611 (Ch. D.), although the plaintiffs' counsel relied on it to a greater extent.
In that case, the owner of houses which were leased sued to restrain a nuisance arising from privy pits on adjoining lands. The court stated that the nuisance was not of a temporary character, "but of such a recurring nature as to be practically continuous and permanent" [p. 617]. The reversion was affected because the injury was likely to continue down to the time when the reversioner would come into possession.
Preston v. Hilton (1920), 55 D.L.R. 647, 48 O.L.R. 172 (H.C.J.), was a case referred to by plaintiff's counsel for the proposition that a mortgagee as a reversioner may, in a proper case, obtain an injunction to restrain a nuisance which threatens his security.
I have difficulty with defendant's counsel's contention that Simpson, supra, and Mumford, supra, support his position. These cases dealt with nuisance, but they relied on Baxter, supra, which was a trespass case. In a trespass action, some physical interference with the property must be proven. Freedom from such physical interference is what is being protected. It makes sense to restrict the cause of action to an occupier in the case of a temporary trespass, since it is only the occupier who is affected by the physical interference. However, if the trespass has caused permanent damage, then a person with a reversionary interest would have a right to sue in trespass to obtain redress for the permanent, physical harm to the property, since he will eventually suffer the consequences of such harm.
Prohibiting a party with a reversionary interest in land from maintaining an action unless permanent damage has resulted is more difficult to understand within the context of nuisance. The reason for this is that actual physical interference with land is not a requisite element of the tort of nuisance.
Furthermore, I find it difficult to characterize the plaintiff's rights to rent apartments, receive rental income and sell the building as "reversionary". With the possible exception of the right to let the occupied apartments in the future, these rights do not revert to the plaintiff when tenants leave. They are present rights in that the plaintiff can sell the building at any time and has the right to receive the rental income now. The alleged nuisance may affect these present rights.
Even if the plaintiff's rights are reversionary so that permanent damage must be shown to maintain a cause of action, Park, supra, is authority for the proposition that the nuisance in this case is not temporary, but is recurring and continuous so as to be permanent in nature. There is no evidence that the original Benelli press will not be operated. Unless a restraining order is made, the use of the press will continue and it will continue to affect the plaintiff's property.
Finally, there would be a nonsensical gap in the law if only the plaintiff's tenants, as occupiers, could sue for the alleged nuisance. A landlord would have to wait until some or all of the tenants moved out before he could maintain an action. In Preston, supra, it was stated that a mortgagee with a reversionary interest could have a cause of action in nuisance. Surely a landlord who is the owner of the property has such a right as well.
CONCLUSION ON LIABILITY
The evidence indicates that the defendant's Huron Steel plant operations have caused and continue to cause an unreasonable interference with the plaintiff's use and enjoyment of its property. Many witnesses testified that the sound and vibration emanating from the plant and the #1 press in particular, disturbed them considerably. The burden of proof is on the plaintiff. However, I note that the defendant did not call any witnesses, except for Morrison and Paonessa, to testify about the sound and vibration.
Expert testimony on vibration was inconclusive, although I find that vibration has been reduced since 1986. However, sound measurements consistently indicate a level considerably over the E.P.A. guidelines. I accept that these levels basically have not changed from 1979 (this is taking into consideration the different measurements with the Huron Steel doors open and closed). I also accept that the noise and vibration from Huron Steel has had some effect on the plaintiff's rental income and the value of the apartment building.
As stated above, I find the neighbourhood to be one of mixed use. However, the addition of the #1 press constituted a new sound of a nature and character substantially different from what existed before the press was installed.
I accept that the Huron Steel plant is important to the community and that the defendant has taken what it considers to be all reasonable steps to alleviate the noise and vibration problem.
Defendant's counsel contends that an industry cannot be expected to constantly make changes just because a new, possibly more efficient way of operating is developed. However, the interference is to be considered from the plaintiff's perspective. Furthermore, all of the experts, including the defendant's witness, Dr. Lightstone, agreed that there were a number of alterations that could be made to the building envelope which would reduce the noise levels from the #1 press.
Although this case has certainly not been clear cut, after considering all of the circumstances and factors set out above, I find that on a balance of probabilities, the defendant's operations, and the #1 press in particular, do constitute an actionable nuisance.
The plaintiff is claiming damages as a result of the defendant's conduct under four headings:
(a) loss of rental income to date;
(b) loss of future rental income;
(c) reduction in the valuation of the plaintiff's apartment building; and
(d) punitive damages.
Certainly, on the evidence before me, I am not prepared to award punitive damages, although I did have some concern throughout the course of the trial that the defendant was more than a little self-righteous and stubborn in dealing with the plaintiff's concerns.
There is really no evidence before me as to whether the plaintiff will continue to experience rental loss in the future and, in view of the claim for reduction in the value of the plaintiff's property, I would think he could not recover under both heads. We are really dealing with loss of rental income and reduction in the value of the property.
The defendant argues that damages should be nominal only because of the tenuous and non-existent causal link between the plaintiff's damages and the Huron Steel plant operations.
The plaintiff and defendant agree on what the vacancy rates were for the apartment building from 1980-1988. The plaintiff asserts it lost $14,927 in rental revenue because of the defendant's nuisance. The defendant does not agree on the amount of revenue lost because of these vacancies.
The plaintiff's expert witness, Mr. Jordan, calculated the loss in value of the apartment building. After reviewing the Peat Marwick report put forward by the defendant, he made some alterations in his numbers. At trial, three additional adjustments were discussed that, if accepted by me, would have an impact on the estimated loss of value:
(1) superintendent's income increased by $1,129 for 1979;
(2) the market rent for apartment No. 204 is increased in 1987 by $155;
(3) the property tax adjustment for 1987 is $1,550.
The plaintiff accepted the defendant's Adjustment No. (2) -- the market rent for apartment No. 204 increased in 1987 by $155.
I have heard argument with respect to Adjustment No. (1) made by Mr. Ladouceur in his report of May 30, 1989. Basically, he maintains that the superintendent was underpaid in 1979 to the extent of $1,129. He reaches this conclusion by applying changes in the Consumer Price Index from the income paid to the superintendent in 1987 and has accepted that as being market value income.
With great respect to his qualifications, I find the methodology highly speculative. The adjustment would make sense if in fact the superintendent was underpaid in 1979. If there had been any evidence of what superintendents in Windsor for such an apartment building were in fact paid in 1979, I would accept the adjustment. As far as I am concerned, the utilization of the changes in the Consumer Price Index is not satisfactory proof that the superintendent was underpaid and, therefore, the adjustment is not allowed.
Mr. Ladouceur, in his letter of May 30, 1989, dealt with Adjustment No. (3), the property taxes payable by the plaintiff. The taxes for the subject property increased from $19,777 in 1986 to $23,100 in 1987. The taxes were reduced in 1988 to $21,551 as a result of an appeal.
Having in mind that 1987 was the year selected in establishing the value of the building, Mr. Lacouceur strongly urged that an adjustment be made as there was a temporary distortion to income for 1987. The recommended adjustment is the difference between the taxes in 1987 and 1988 or $1,500. In effect, what he is recommending is that the taxes for the purpose of the valuation should be shown as $21,551.
Counsel for the plaintiff argues that taxes are unpredictable. Furthermore, if we were to adjust the subject property, then the other properties for use of comparison should also be adjusted. I do not agree with him. I think the proposed adjustment makes eminent sense and it will be applied.
Mr. Jordan calculated the estimated loss in value of the building based on my acceptance of the above two adjustments. He determined the loss in value by subtracting the 1987 "real value" from the "should be" value and arrived at a $56,500 loss.
The defendant raised the issue of causation in two areas:
(1) rent controls; and
(2) the relationship between Huron Steel plant operations and the loss of tenants.
The plaintiff argued that the defendant's nuisance put it into the position of lower rents. All rent control did was to freeze the situation and prevent the plaintiff from recouping the loss by increasing the rents. Many other landlords were subjected to rent control, but the plaintiff was in a different position because of the nuisance from Huron Steel. Furthermore, the plaintiff asserted that not each and every element of damage has to be foreseen.
Schedules 1 and 2 of the report of the defendant's expert, Mr. Rostant, indicate clearly that the rental rates in the apartment in question rose significantly in 1983, 1984 and 1985 and were coming closer to the general level of rates in west Windsor at that time. However, rent controls were imposed in 1985 and from then on the rental rates -- or the increase in the rental rates -- ran approximately parallel with the general rates in west Windsor.
It is quite possible that if rent controls had not been imposed, the rental rates for the subject property would have become equal to or perhaps passed the general rates in west Windsor. This did not happen and it is quite conceivable that the reason was the rent-control legislation which is still in effect. If it had happened, then the value of the apartment building would have been greater because the valuation is based on revenue.
Counsel for the defendant stated that rent control was a classic example of novus actus interveniens and that his client ought not to be saddled with the reduction in value which may well be attributable to the rent controls.
Assuming for the sake of argument that the plaintiff did suffer reduced rental rates, the nuisance of the defendant was the initial and primary cause of the plaintiff's damage and certainly it was foreseeable that the plaintiff might well sustain such damage by reason of that nuisance.
I agree with counsel for the plaintiff that it is not essential that a defendant see every possible component of damage. In this particular case, the nuisance commenced in 1979 and continues to this very day. It existed at the time the rent-control legislation was being enacted in the Legislature, so even that component of the damage might well have been foreseen.
The defendant stated that damage must be directly attributable to the nuisance and if there are other factors involved, the requisite causal connection is not present. The basic factor in proving both rental loss and loss in value is to show that tenants moved out because of the Huron Steel plant operations.
Counsel for the defendant argued very strenuously that there were many other factors which accounted for the fact that there was a higher vacancy rate in the subject property than in Windsor as a whole as revealed by C.M.H.C. reports. He pointed out that there is a caution in the C.M.H.C. surveys stating "figures shown are not necessarily representative of the private rental market as a whole as no attempt has been made to adjust the sample to the total universe". Furthermore, the same number of tenants moved out of both sides of the apartment building. If the vacancies were caused by the noise from Huron Steel, then there should have been a higher number leaving the west side of the building, according to the defendant.
Counsel for the defendant stated that there is only one tenant who gave evidence, Mr. Sbrocca. He left the apartment in 1987 and testified that the major reason for his leaving was the noise. Mr. Smith gave evidence about the noise and vibration, but he has continued to reside at the building from some eight years. However, we have the evidence of Mr. Kenney and Mr. Smith that there were tenants who left because of the noise. Furthermore, rental rates were not reduced, but they were not increased in order to minimize the number of vacancies.
The plaintiff has pointed out that from the years 1980 to 1988 the excess in the vacancy factor in the subject property over the C.M.H.C. figures varied from year to year.
The defendant does not necessarily agree with the plaintiff's calculations but, in the circumstances, I think this is a very appropriate way to measure the loss of the plaintiff's damage. Subject to the mathematics being correct, I accept the figure of $14,927. One must remember that, even in proving damages, we are not in a criminal trial where the burden of proof is beyond a reasonable doubt. In a civil trial the burden of proof is on a balance of probabilities. It is far more probable, on all of the evidence that I heard, that the plaintiff did suffer damages in at least this amount. Indeed, there is no claim for the fact that rental rates were not increased as much as they might otherwise have been. I think it is a conservative figure for the loss and I find that the plaintiff has suffered a loss of $14,927.
In Mr. Jordan's report of May 25, 1989, he calculated the reduction in the value of the building to be $71,000. However, in view of the rulings I have made earlier, where I did not accept the increased expense with respect to the superintendent, the adjusted loss is $56,500.
CONCLUSION ON DAMAGES
I award damages to the plaintiff against the defendants jointly and severally in the amount of $14,927 for lost rental revenue and $56,500 for the reduction in value of the apartment building.
Pre-judgment interest, pursuant to the Courts of Justice Act, 1984, S.O. 1984, c. 11, calculated yearly on the loss of rental revenue, and, from January 1, 1988, on the loss of value of the property.
At the conclusion of argument on liability and damages, I adjourned argument on the issue of injunctive relief. At my suggestion, the parties proceeded to obtain further expert reports to address the remedial work required for purposes of abating the nuisance.
The parties have since agreed to a remedial course of action which is set out in the report of Valcoustics Canada Ltd. (Dr. Lightstone) dated August 24, 1989, a copy of which has been filed as Exhibit A for identification purposes. The parties have agreed, in substance, that the remedial work set out in items one through five of such report are to be implemented by October 30, 1990, failing which the defendants shall be prohibited from operating Benelli press (#1) until such time as the work has been completed.
The parties have settled a wording for the terms of the injunctive relief and judgment shall issue in accordance therewith.
Costs against the defendants on a party-and-party basis to the date of the settlement offer and on a solicitor/client basis afterwards. The expenditure by the plaintiff for experts' reports and disbursements is to be considered a cost.
Judgment for plaintiff with costs.