A judgement on the merits was recently handed down in Coalition contre le bruit c. Bel-Air Laurentien et al. (S.C. February 28, 2019) (Justice Suzanne Ouellet) (Bel-Air), an environmental noise case. The claim was based on both articles 976 and 1457 of the Civil Code of Québec (C.C.Q), as well as on sections 19 and 20 of the Environment Quality Act, R.S.Q. c - Q-2 (EQA).
Madame Justice Suzanne Ouellet of the Superior Court concluded that the defendants were free of any extracontractual fault and that there had been no abnormal neighbourhood disturbances. She also dismissed the action on the basis of the alleged breach of the EQA. In short, she found that the Coalition had failed to meet its burden of proof with respect to each of the bases of its suit and dismissed the class action as a whole.
Summary of the Facts and Conclusions Sought
Some of the lakeside property owners residing around Lac-à-la-Tortue in the Shawinigan region instituted a class action against Aviation Mauricie, Bel-Air Laurentien and the Attorney General of Québec, by reason of the noise emitted by a number of sightseeing seaplanes, primarily operated by Bel-Air, from a seaplane base located on Lac-à-la-Tortue.
The sightseeing flights at Lac-à-la-Tortue had been going on in that location since 1995. From 2009 to 2012, Aviation Mauricie had also operated a second seaplane base on the lake, but it had ceased operations there at the time of the trial.
Bel-Air was legally authorized to provide sightseeing flights on the lake; therefore, the lawfulness of its activities was not in dispute in this case.
In 2008, Transport Canada, with the support of the City of Shawinigan, had carried out a public consultation process prompted by the Coalition’s complaints about the noise problem facing the lakeside property owners at Lac-à-la-Tortue. Following the consultation, certain noise mitigation measures and restrictions on the hours of commercial flight operations were established.
Deeming those measures to be insufficient, the Coalition filed an application for authorization to institute a class action on June 21, 2011, which proceedings were authorized by Mr. Justice Parent on August 28, 2012.
At first, the Coalition was seeking to have all sightseeing flights over Lac-à-la-Tortue prohibited, until action would be taken to reduce the inconvenience suffered to a level deemed reasonable. Damages amounting to $5,000 per class member for each of the summer seasons during which Aviation Mauricie and Bel-Air had been offering sightseeing flights since the summer of 2008 were also sought. Before judgement was rendered on the merits, however, the Coalition amended its conclusions to seek only the reduction the number of sightseeing flights on the lake to a reasonable level, and limited the damages it was claiming for disturbance and inconveniences to $1,000 per class member.
- Bel-Air’s Extracontractual Fault
- Abnormal Neighbourhood Disturbances
Regarding to the restrictions on the authorized hours and periods of operations, the Court recalled that a regulatory breach does not systematically trigger civil liability under article 1457 of the C.C.Q., but, conversely [translation]: “Activity carried out in compliance with regulations is one of the criteria of the objective standard for assessing fault” and that [translation]: “The civil fault regime corresponds to an obligation of means”. The Court found that Bel-Air had contravened the compulsory restrictions imposed only once, as a result of a misunderstanding regarding the rules applying on a public holiday. The Court also considered, in its analysis, the relatively low number of complaints received between 2009 and 2016.
It is noteworthy that Justice Ouellet travelled to the scene on May 16, 2018 to familiarize herself with the environment of the lake and with Bel-Air’s facilities there. In addition, at the hearing, three pilots testified that the place from which the aircraft took off depended on the direction of the wind, over which the defendants obviously had no control, the types of trips taken, the altitude of the flights at takeoff, the splashdown, and other more technical factors relating to the flights’ trajectory and altitude.
In respect of the noise mitigating measures, the Court took account, in particular, of the alterations made to Bel-Air’s seaplanes, in an attempt to quieten the noise caused by those aircraft.
Justice Ouellet therefore held that Bel-Air and Aviation Mauricie were without fault under article 1457 of the C.C.Q.
The Court recalled the major principles applicable under article 976 of the C.C.Q., particularly that the defendants, in order to be exonerated, must show that the inconveniences in question were normal, that proximity rather than contiguity is the criterion accepted for defining the concept of “neighbour” and that a multi-factor analysis is required under that provision. She also stressed that the lawfulness of an activity is not, in itself, a ground for exoneration, but that it may be factored into the multi-factor analysis required under the article.
Justice Ouellet reiterated the takeaways of a number of prior decisions, holding that the neighbour acquires both the present and the future environments, and that a piece of land does not [translation]:
“…benefit from any vested right ensuring that the situation of the neighbourhood remains unchanged.”; however, she noted that that criterion is not absolute, although the anteriority of use is part of the contextual analysis.
Justice Ouellet found the defendants free from fault on the basis of no-fault liability for abnormal neighbourhood disturbances.
In her multi-factor analysis, she took account of the following points in particular:
- The noise-mitigating measures and the restrictions applicable to Bel-Air came from regulations specifically adopted for Lac-à-la-Tortue, following a public consultation carried out by Transport Canada.
- Aeronautical commercial activities had been carried on there since 1995.
- The noise generated by those activities constituted a component of the lake’s environment.
- The sightseeing flights were seasonal and limited in time, being prohibited before 9 a.m., during lunch hours and after 5 p.m. on weekdays, as well as on weekends and public holidays.
- The flights were foreseeable, which had an effect on the legal issue of environmental noise.
- The number of sightseeing flights fell generally between 12 and 14 a day. The Coalition and the designated person admitted at the hearing that a total of 10 to 12 sightseeing flights a day was tolerable.
- As regards the allegations of health problems brought forward by some class members, the Court found no medical evidence supporting that testimony. The learned justice held: [translation]: “It is not possible to establish any causal link between the alleged health problems and the sightseeing flights.” The only medical chart produced in evidence was that of the designated person, which showed health problems dating back to before the Class Action Period began.
- The Court also weighed an abundance of expert evidence dealing with environmental noise from aircraft and related health issues, including certain sleeping problems, which might or might not result therefrom.
Assessing the foregoing factors as a whole, Justice Ouellet concluded that the defendants were without responsibility under article 976 of the C.C.Q.
Justice Ouellet then dealt briefly with this issue, reiterating that the analysis required under sections 19 and 20 of the EQA was similar to the multi-factor analysis required under article 976 of the C.C.Q., and she made reference in her analysis to the alleged violation of the EQA. She also found the defendants free of any liability on that basis.
In class actions, when article 976 of the C.C.Q. is cited, the case of St. Lawrence Cement Inc. v. Barrette,  3 SCR 392, in which the Supreme Court of Canada established a no-fault liability scheme for abnormal neighbourhood disturbances, invariably comes to mind. The Superior Court’s decision in Bel-Air, however, reminds us that it is still possible to sidestep that scheme, notwithstanding the St. Lawrence Cement Inc. decision.
The burden of proof required to show that the alleged inconveniences are of an abnormal nature is demanding at the merits stage and more often than not requires extensive and convincing expert evidence, particularly in cases where nuisances and environmental health impacts are alleged.
In Bel-Air, exhaustive expert evidence had been adduced in defence. The Court preferred that evidence to that of the plaintiff’s experts, as regards the reasonableness of the noise exposure of the lakeside property owners at Lac-à-la-Tortue, as well as with respect to the lack of any probative evidence that the class members had sustained any health impact. The Court also travelled to the scene during the hearing to make its own observations.
Justice Ouellet finally held that Bel-Air’s activities were part and parcel of the very core of the lake’s historic vocation. The fact that slightly more than half of the class members had excluded themselves from the action before judgement, which attests to a certain social acceptability of Bel-Air’s activities, seems to have been another significant factor that weighed in the Court’s decision to dismiss the suit.
The Coalition filed a notice of appeal of this judgement on April 3, 2019.