Neighbour Noise, Smell and Light: Nuisance Claims in Ontario

Constant noise, smells or bright lights from next door can wear you down, and it is natural to ask whether the law treats it as a nuisance. The answer depends on how serious and unreasonable the interference is.

There are usually two tracks: local by-laws that your municipality can enforce, and a private nuisance claim in court. Many people begin with the first.

Start with your municipality's by-laws

A local municipality may prohibit and regulate noise, vibration, odour, dust and outdoor illumination by by-law, and may require permits for these matters. It may also prohibit and regulate public nuisances, and if council forms its opinion on what is a nuisance in good faith, a court cannot review that opinion.

Quiet hours, limits, fines and complaint channels differ from one municipality to the next, so check your own by-laws or call the by-law office. If your concern involves animals, the Municipal Act also provides for impounding and sale where a municipality regulates animals being at large or trespassing.

Related problems, such as dust from construction or changes to the grade of your neighbour's land, may fall under a different by-law. A local municipality may prohibit or regulate the placing or dumping of fill, the removal of topsoil and changes to the grade of land, and may require permits and impose permit conditions. These by-laws do not apply to activities by a municipality, to drain construction under the Drainage Act or to certain pit and quarry operations, and topsoil removal incidental to normal agricultural practice is also exempt, though not removal for sale or other disposition.

When it is a legal private nuisance

Private nuisance is an act that indirectly causes physical injury to land, or substantially interferes with its use or enjoyment, where the injury or interference is unreasonable in light of all the surrounding circumstances. It looks at the effect on your property rights, not at whether your neighbour was careless.

• Substantial: a passing annoyance is different from a regular, lasting disturbance.
• Unreasonable: whether the interference is unreasonable is judged in light of all the surrounding circumstances.
• Effect-focused: your neighbour does not have to have meant any harm.

A nuisance claim is about interference with your land. It is separate from a by-law complaint, and both can be pursued.

Water is another common source of neighbour disputes. Under Ontario common law, surface water has no right of drainage, and collected or discharged surface water, such as roof runoff, must not be diverted onto land that would not naturally receive it, or liability for damages can follow. A right to drain collected water onto a neighbour's land may arise from 20 years of continuous, open, peaceful, uncontested use without permission, but a court must confirm the right, and it can be lost if the drainage is increased.

Cameras, lights and privacy

A neighbour's home camera that watches your yard raises different rules. The federal privacy law PIPEDA does not apply to an individual who collects, uses or discloses personal information solely for personal or domestic purposes, which generally takes a neighbour's home camera outside it.

Ontario recognizes intrusion upon seclusion, which covers an intentional or reckless intrusion, without lawful justification, into another's private affairs that a reasonable person would regard as highly offensive. It is limited to deliberate and significant invasions, and where there is no economic loss, damages are modest, in a range of up to $20,000. Voyeurism is a Criminal Code offence, but it applies to narrow situations involving places where a person may be nude or engaged in sexual activity, or recording for a sexual purpose. If you think that applies, contact police.

Court options and time limits

• A judge of the Superior Court of Justice may grant an interlocutory injunction or mandatory order where it appears just or convenient.
• A court may award damages in addition to or instead of an injunction.
• The Small Claims Court hears money claims up to $50,000, exclusive of interest and costs.

The basic limitation period is two years from the day the claim was discovered. A claim is discovered on the earlier of the day you actually knew the relevant matters and the day a reasonable person in your circumstances ought to have known them. No proceeding may be started after the 15th anniversary of the act or omission, whatever the date of discovery. With an ongoing problem, it is safest to treat the clock as already running.

What to do next

• Keep a dated log of each incident, with times, duration and how it affected you.
• Record sound, take photos or videos where lawful, and keep copies of messages.
• Check your municipality's noise, nuisance and lighting by-laws.
• Raise the issue politely with your neighbour in writing, and keep a copy.
• File a by-law complaint and note the reference number.
• Consider mediation before court, and get legal advice before sending a demand letter or starting a claim.

Frequently asked questions