By Donalee Moulton, The Lawyers Weekly, Oct 07, 2011
A recent decision from the Quebec Court of Appeal is creating a lot of noise in Canadian legal circles. In Carrier c. Québec (Procureur général),  J.Q. no 8278, the court authorized certification of a class action suit against the province for noise pollution - denying the government the use of a standard and, until now, well-accepted defence.
“The case is important,” said André Durocher, a partner with Fasken Martineau LLP in Montreal. “It means that the common law defence of Crown immunity will not hold up at the authorization stage. The Court of Appeal of Quebec has ruled it is a mixed question of fact and law. This is the first time a court has determined this,” he noted.
“This ruling changed the law of noise pollution. It is a victory,” said Michel Chabot, a lawyer with Gravel Bernier Vaillancourt in Quebec City, who represented the appellants. The decision effectively takes a legal sword to the “king can do no wrong” defence, he added. “The state is subject to its own laws. The ‘polluter pays’ rule applies to the state.”
The decision also shines a very bright light on an important environmental issue. “Noise pollution was always recognized to be an environmental issue, but it is usually the poor cousin of other issues like toxins,” said Dianne Saxe, founder of the Saxe Law Office in Toronto. “Noise is the most common search term on my website (enviro law. com),” she added. “It’s a big issue for a lot of people, and our society often does a poor job of managing it.”
In the case before the Quebec court, nearly 500 residents of Charlesbourg, a borough of Quebec City, were complaining about noise caused by the Laurentian Highway. They stated it interfered with the outside use of their hom-es and forced them to keep their windows closed all the time. Even then, the residents said, the noise level was still “comparable to an intense bombardment.”
In his decision, Justice Guy Gagnon noted that, “The sufficiency of the evidence is only weighed prima facie at the authorization stage; as a general rule, it would be premature to conclude that the immunity defence applies to the State. It is but one ground of defence among many, and the immunity invoked here by respondents cannot be raised as an objection to admissibility at the authorization stage.
“Unless it is agreed that the action is frivolous on its face or is certain to fail, that the allegations of fact are insufficient, or that the law invoked is ‘incontrovertibly’ ill found-ed, it would seem unadvisable under the circumstances to determine the absolute value of this ground of defence at such an early stage of the analysis,” he added.
“The government typically claims that they have statutory immunity from being sued for the nuisances caused by infrastructure,” said Saxe. “However, statutory immunity is limited, and it’s subject to proof they could not do the project any other reasonable way. There was an alternative here - a noise barrier. The province just refused to pay for it unless the municipality paid half.”
“The Quebec government said the decision to put up a noise barrier is really a political decision and, therefore, that is the end of the matter,” noted Durocher. “The court acknowledged the [government’s] policy but contended the policy was guidance.”
The appeal court decision opens the door - across the country - to more class action suits being certified. “The court said it was premature of the [lower] court to rule on this at this stage,” Durocher noted. “That is significant. It means authorization has become easier.” As a result of the decision, Saxe said, “a lot more people may turn to the courts. Even though Quebec has traditionally been more open than other provinces to environmental class actions, the differences are narrowing.”
Lawyers in other provinces will be taking a close look at what the Quebec Court of Appeal has to say on this is-sue. The decision has national implications, said Durocher. “It really is a philosophical view of what the law should be.”
“Lawyers in B.C. and Ontario will say, ‘Hey, the court of appeal in Quebec has said we should look at this as a matter of fact and law… This is basically the same as the tort of nuisance.’”
Reasons: Carrier c. Québec (Procureur général),  J.Q. no 8278.
Carrier quotations (translated from French) from an article by André Durocher, Neighbourhood Annoyances and Class Actions: The Court of Appeal Authorizes Class Action to Curb Highway Noise.
Link to article