Right to Quiet Legal Fund

In recognition of the fact that civil courts can be used as a powerful tool against intransigent noisemakers, one of our longtime members has advanced the following important proposal:

Those of us who have been disturbed by noise from inconsiderate neighbours and have tried to complain about it have often been sorely frustrated at the difficulty of obtaining legal recourse, particularly through municipal bylaws. It may be that there are no municipal bylaws covering noise. Or existing bylaws do not cover your particular situation, or are too vaguely worded, or contain loopholes. They may require decibel measurements to be made under impossible conditions. For example, the measurement may have to be made by a municipal enforcement officer who never comes while the noise is being made, or by a particular instrument that is not available, or at ground level more than twenty feet from a building, which is an impossible condition when you live in a high-rise apartment. The bylaw may include so many "exemptions" that almost any sort of noise is specifically permitted.

Most often, the problem is that neither the bylaw enforcement officer nor the police will take any action, even to the extent of issuing a ticket, however blatant the offence, and may be positively hostile to the complainant. Cases are on record in which a municipal council have responded to complaints by amending the bylaw so that the nuisance being complained of is no longer an offence.

There is, however, a remedy. It is possible for a noise victim to take either the noisemaker or the municipality to civil court and apply for substantial civil damages and an injunction to prevent the noise from continuing. In such a case, the municipal bylaws do not apply and any loopholes or impossible conditions in the municipal bylaws become irrelevant. The difficulty with this route, however, is one that is enough to deter most people, namely that such an action is likely to cost several thousand dollars. Further, there is no guarantee of success, and, if you lose the case, you may be liable for the defendant's and court costs as well as your own. Nevertheless, there must be many situations where the nuisance is so blatant that there is a substantial probability of winning a case and thereby setting a legal precedent that would set the stage for similar actions in other cases. One such victory would send a message to noisemakers and to municipalities across Canada and would ultimately benefit all victims of noise.

In view of this, Right to Quiet is proposing to establish a Legal Fund to assist victims in launching a civil action against either a noisemaker or a municipality that refuses to enforce its own bylaws. When sufficient funds are available to Right to Quiet, an Announcement of Availability of Funds will be made on our Web site and in our newsletter, which would invite victims who have been unsuccessful in efforts to stop a noise nuisance to apply for a grant to help them to launch a civil action. The exact conditions for such a grant will be announced at the time when sufficient funds are available. It is expected that a small committee would be established to consider applications.

Applications for grants would most likely be favourably considered if the applicant has exhausted all efforts to solve the problem by way of complaints to the noisemaker, the police, the municipal council and the bylaw enforcement officer; if a civil action appears reasonably likely to succeed, in that the nuisance is blatant and severe and the complaint is neither trivial nor frivolous, and if success in court is likely to set a precedent that would help in future actions. It is unlikely that R2Q could finance the entire cost of a court action, and the complainant would be expected to shoulder some of the costs him- or herself. Depending on funds available, it is hoped that R2Q might be able to offer assistance perhaps of the order of $1,000. Should the complainant receive substantial damages in excess of this, (but only in such a situation) the grantee would be invited to return R2Q's contribution to the Fund.

In addition to offering a grant, it is possible that R2Q, drawing on its considerable experience with noise problems and the difficulties and obstacles in the way of solving them, may be able to offer useful suggestions in any particular case. This would not be in the form of formal professional legal advice, but it might raise some useful points that might not have occurred to the grantee or to his/her lawyers.

Right to Quiet Society Newsletter, Spring 2002

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