Canada: Wood Furnace Smoke — What Is "Unreasonable Interference"?

Last Updated: July 29 2015
Article by Paul Vogel

Outdoor wood burning furnaces may be utilized by rural landowners for a variety of reasons, including as a supplementary heat source. Neighbouring landowners may object to smoke emanating from such facilities interfering with their use and enjoyment of their own properties. How are these competing interests reconciled?

In a recent decision of the Ontario Superior Court, the court considered a request from a municipality to permanently restrain operation of an outdoor wood burning furnace on the basis that it contravened a municipal by-law prohibiting "emissions of air contaminants from any outdoor wood burning appliance to the outdoor atmosphere that unreasonably interferes with the normal enjoyment of human life and property". The owner of the furnace had operated it for approximately 10 years to provide heat and water for his residence. Adjacent downwind neighbours complained of impacts to their property use. A neighbour's evidence as summarized by the trial judge was that:

"smoke and its smell interferes with his enjoyment of his life and property because it gets into his house, his car and his clothes. It drives him and his wife out of their yard, which has an outdoor patio, and deters them from outdoor entertaining or pursuits such as gardening and yard work ... he describes the smoke as being invasive and inescapable, and, figuratively, holds him and his wife as prisoners in their home. It prevents them from doing things that others take for granted, such as leaving their windows open or using their clothesline ... he finds the smoke irritating to his eyes, nose and throat, causing him to cough, his eyes to water. Another aggravation caused by the smoke relates to their young granddaughter, who has undergone a heart operation to repair holes in her heart. The jneighbours'j daughter and son-in-law are reluctant to bring her to her grandparents' home because of the smoke exposure. The jneighboursj are also reluctant to invite friends over because they do not want to expose them to smoke".

In considering the competing interests of these neighbouring landowners, the court stated:

"it is expected that an outdoor furnace will produce smoke in the course of its normal operation and perhaps interfere with the use and enjoyment of neighbouring property, and the By law acknowledges this by only prohibiting use that can be determined to be unreasonable interference."

Referring to previous cases which have considered 'unreasonableness", the court held that:

" 'Unreasonableness' in nuisance law occurs 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:

(i) The severity of the interference, having regard to its nature and duration and effect;

(ii) The character of the locale;

(iii) The utility of the defendant's conduct;

(iv) The sensitivity of the use interfered with".

Considering these factors, the court concluded:

"Referring to the four factors, the first consideration is the severity of the interference having regard to its nature, quality and effect ... Ithe neighbours'j evidence is sufficient to satisfy the court that the ongoing repercussions that the smoke has for their use and enjoyment of their homes and yards is not something that individuals should be required to tolerate on an ongoing basis. However, their evidence is clear that the malodorous and physical effects of the smoke, such as stinging of eyes, is far more obtrusive in the warm weather months than in the winter when they are less likely to be outside or to open doors and windows."

With respect to consideration of the locale, the court held that [Rjural residents should not habitually be required to close windows and go indoors to escape pollution in this setting." While the landowner's use of the furnace had utility for him, the court determined that "[Tjhere is no evidence that the furnace is necessary for his farm operations, although given that he boards horses, I surmise that he heats water for his barn in the colder months." The court did not consider that the neighbours were overly sensitive to smoke effects, and concluded that the landowner's ftirnace use resulted in an "unreasonable" interference with the neighbours' use and enjoyment of their property. In result, the court held that the "practical" answer was to restrain operation of the furnace from April 1 to October 15 annually.

A rural landowner's use of an outdoor wood burning furnace may be restrained as a private nuisance or under a municipal bylaw where such operation interferes with neighbours' reasonable use and enjoyment of their properties. What constitutes unreasonable" interference will depend upon the court's consideration of these various identified factors.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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