Canada: The Consequences Of Off-Site Annoyances – Beauregard v. Groupe CRH Canada –

Last Updated: May 15 2018
Article by Anne-Frédérique Bourret and Claire R. Durocher

Controlling annoyances is a major consideration in worksite management. While issues like noise, dust, and vibration are of concern to any large-scale project and often trigger debates that end up in front of the courts, the recent Superior Court decision in Beauregard v. Groupe CRH Canada Inc. 2018 QCSC 1330 ("Beauregard") involved activities being performed outside of the actual work site. The Québec Court of Appeal has granted the defendants in Beauregard leave to appeal the decision.

The Facts

In this case, 26 residents of Butte-aux-Renards Road applied to the Superior Court for damages and a permanent injunction to limit trucking activities. On March 29, 2018, the Court handed down an interlocutory decision.

The plaintiffs have been living on Butte-aux-Renards Road for many years and all have resided there since before 2016. Trucks belonging to clients of defendant Groupe CRH Canada Inc.'s ("CRH") stone quarry and of an asphalt products plant owned by defendant Bau-Val Inc. ("Bau-Val") use the road to pick up and load deliveries of stone and asphalt. As Butte-aux-Renards Road is the most direct way to Highway 30, the trucks of CRH and Bau-Val's clients use this route almost exclusively.

The annoyances associated with truck traffic on Butte-aux-Renards Road have existed for years. Since as far back as 1987, citizens have been attempting to have these annoyances eliminated, without success. When rockfill deliveries for reconstruction of the Turcot interchange began in the spring of 2016, the situation came to a head.

Defendant KPH Turcot ("KPH") gets its stone supplies from the CRH quarry, the only quarry in the relative vicinity of the interchange that provides stone that meets the Ministry of Transport's chemical resistivity requirements. Because of this, truck traffic along Butte-aux-Renards Road has increased significantly since work began on the Turcot interchange in 2016. The Court in Beauregard compares the truck traffic during peak periods to a parade, which is primarily attributable to supply for the Turcot site, especially at night. As the Turcot backfill work is performed at night, the corresponding deliveries were also being made at night. The Court described this traffic as having a dramatic and deplorable impact on Butte-aux-Renards residents, and even went so far as to title that part of his decision "Hell".

The Parties' Claims

The plaintiffs claim that the truck traffic coming from the CRH and Bau-Val facilities contravenes section 20 of the Environment Quality Act and that CRH and Bau-Val allow this contravention. They also argue that the intensive truck traffic that they are experiencing contravenes article 976 of the Civil Code of Québec in that it exceeds "normal neighbourhood annoyances" and goes far "beyond the limit of tolerance".

CRH contested these claims, stating that it could not be held liable for the impact of the truck traffic because the trucks do not belong to CRH, but to its customers. It also stated that the demand created by the Turcot site is at the root of the plaintiffs' troubles and the requirements of the Turcot site necessitate the trucks' arrival at night.

KPH argued that it could not incur liability simply by making purchases from CRH. It also claimed public interest, citing considerable delays and other potential impacts of a decision that would limit the Turcot site's ability to obtain rockfill from CRH.

Analysis

Section 20 of the Environment Quality Act

The Superior Court found that the excessive trucking activities taking place at the time of the decision, especially from spring through fall, unquestionably contravened section 20 of the Environment Quality Act, which prohibits the emission of contaminants (including noise, vibration, and dust), whose presence in the environment is likely to affect the life, health, safety, welfare, or comfort of human beings. The Court also found that there was no doubt that CRH and Bau-Val were allowing the trucking activities to be carried out.

Articles 7 and 976 of the Civil Code of Québec

The Court found that both CRH and Bau-Val, particularly CRH, were exercising rights that were unduly and unreasonably prejudicial to the plaintiffs and it therefore upheld the plaintiffs' neighbourhood annoyances argument.

Lack of Control over Clients' Trucks

The Court found that CRH and Bau-Val could indeed exert control over their clients' trucks by setting a loading limit and a schedule.

Public Interest

The Court dismissed the public interest argument raised by KPH, declaring instead that the life and health of the citizens of Butte-aux-Renards Road are worth more than the Turcot worksite. The judge pointed out that great care was taken in the Turcot project to capture and relocate approximately 150 threatened Northern Brown Snakes, and that the human residents of Butte-aux-Renards Road were also entitled to a modicum of consideration.

Decision

The Court found that CRH and Bau-Val had a right to operate their business, but that this right has its limits. As such, the Court circumscribed CRH and Bau-Val's activities and put an end to nighttime trucking throughout the week. It also put an end to weekend daytime trucking, with the exception of three Saturdays per year, and only under certain conditions. The Court also imposed loading limits on daytime weekday trucking. These restrictions will remain valid until a final judgment is rendered in this case.

Conclusion

This Superior Court decision illustrates the importance of considering and managing all the possible impacts of a project's supply chain, right from the initial planning stage. In Beauregard, construction annoyances and neighbourhood disturbances, despite occurring off-site, will have a direct impact on the construction schedule, translating into a potential loss for KPH in the tens or even hundreds of millions of dollars.

Leave to Appeal

The Superior Court's interlocutory decision is subject to appeal pursuant to section 31 of the Québec Code of Civil Procedure which allows, among other things, for judgment rendered in the course of proceedings to be appealed if the judge considers that it determines part of the dispute or causes irremediable injury to a party. To this, the Québec Court of Appeal adds that leave to appeal may be granted where the appeal is in the interest of justice and raises an issue worthy of the attention of the Court, that it has a reasonable chance of success and that it complies with the guiding principles of procedure. The Court of Appeal further notes that the Superior Court did not consider the balance of convenience before granting the interlocutory injunction. The Superior Court considers that the criteria for leave to appeal are met; however, it highlights that, given the public interest and urgency issues raised in the file, the appeal must move forward quickly.

The interlocutory injunction is stayed as the defendants have raised that it is unlikely that the plaintiffs could repair the significant economic harm the defendants face in no longer being able to supply their clients as before. Furthermore, the submitted evidence shows that, for the period leading up to the appeal, there is little need for supply from the defendants for the purposes of the Turcot Project.

The appeal is set to be heard on May 30, 2018. Updates to follow.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Anne-Frédérique Bourret
Claire R. Durocher
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions