How much noise must neighbours of a highway put up with?
As noted by Geneviève Lay here on Slaw recently, The Québec Court of Appeal has certified the Carrier class action by neighbours of a major Québec freeway, the Laurentian Highway (Highway 73) north of Québec City. I’d like to add a bit to her reportage here.
The neighbours have been complaining about noise from the highway since 1985, which (they say) interferes with outdoor use of their properties and requires them to keep their windows closed at all times. Even with the windows closed, their sleep is disturbed and they must endure noise comparable to an intense bombardment.
In 1985, the Ministry of Transport agreed to pay half the cost of a noise protection barrier if the municipality paid the other half; while the municipality eventually consented, the barrier was not built.
In 1998, the Transport Ministry adopted a province-wide policy for installing noise reduction barriers along highways generating noise louder than 65 dB. Again, however, the local municipality was required to pay half the cost. The same time, municipalities were asked to use the zoning powers to achieve appropriate separations between highways and sensitive land uses. For zoning purposes, the acceptable level of noise in sensitive zones was set at 55 dB. Municipalities were required to bear the full cost of such zoning measures.
In 2007, a study commissioned for the Ministry of Transport confirmed that 10% of the homes along the Laurentian Highway received more than 65 dB of noise; 42% received more than 55 dB. Nothing further was done.
The neighbours then commenced a class action, claiming that they were being exposed to an abnormal level of noise, beyond what the Civil Code requires them to tolerate. (In common law terms, this is substantially equivalent to a claim for nuisance.) They also claimed breaches of the Québec Environmental Quality Act and the Québec Charter of Rights and Liberties. While the trial judge refused to certify the action, the Court of Appeal disagreed. They ruled:
- It was premature to determine whether the province can claim statutory immunity for noise from the highway;
- The neighbours have a heavy burden of proof, requiring expert evidence about the effect of the nuisance and its impact on the residents, but they should have an opportunity to offer this evidence;
- Nuisance does not require proof of fault by the Ministry of Transport;
- The residents may allege fault by the Ministry, given its failure to act even once in possession of the study documenting noise in excess of its own criteria, and notwithstanding the requirements of the Environmental Quality Act;
- The trial court does have the power to issue an injunction, if the neighbours’ claims are proved;
- There are sufficient common questions between the different class members to justify a class proceeding;
- The proposed group, namely those who had lived within 300 m of the trunk of the highway within the past three years, was a reasonable class.
The Court of Appeal concludes that class actions are an important tool for environmental justice relating to noise [my translation]:
Protecting the environment is a responsibility entrusted to all citizens, although the state is called upon to play an increasing role in this area of activity. Noise pollution is no exception. The class action procedure makes it easier to ensure implementation of the protections afforded by the law against various environmental hazards. At the same time, thanks to the strength of collective action, it creates a just balance between the people who suffer the consequences of a violation and the offender, who often has much greater resources. Thus, conduct that is judged reckless, unreasonable or illegal is more easily brought within the reach of civil enforcement.