Injunction Granted To Hotel To Enforce Noise By-Law

• Published date: 06 November 2020
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Real Estate and Construction, Contracts and Commercial Law, Trials & Appeals & Compensation, Landlord & Tenant - Leases, Hotels & Hospitality
• Law Firm: Gardiner Roberts LLP
• Author: Mr James Cook

Potential harm to a hotel's online reputation for providing a quiet night's sleep may be sufficient grounds to obtain an injunction to restrain a noisy neighbour. In JJ's Hospitality v. Kal Tire, 2020 ONSC 6198 (CanLII), a hotel in Northern Ontario obtained such an order restraining an adjacent business from servicing commercial vehicles after business hours.

The Hotel had been operating in Sault Ste. Marie since 1974 on a major throughfare connecting to the TransCanada Highway. In 2019, the adjacent commercial property was leased by a business that repairs and replaces tires for retail and commercial customers, including tractor trailers and large construction vehicles. The property's landlord apparently spent over $1,000,000 to make the premises suitable for the tire business's needs, and the municipality issued occupancy permits for the business to operate.

Litigation ensued shortly thereafter. The Hotel argued that the noise from the tire business contravened the municipal by-laws and Environmental Protection Act, R.S.O. 1990, c. E.19 (EPA). The Hotel sought an injunction pursuant to section 440 of the Municipal Act, 2001, S.O. 2001, c. 25, which states:

If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.

The Hotel filed audio and video of very loud pneumatic noises emanating from the tire business and tractor trailers waiting to enter into the business premises after hours. The Hotel also filed a video interview with an unnamed Hotel guest who complained of loud sounds coming from the tire business that disturbed his stay in the Hotel.

The tire business responded by arguing that they had undertaken considerable effort to work with the Hotel and municipality to ensure that their operations were compliant with the local by-laws. The Hotel and the tire business each filed reports from engineers in support of their positions.

The Court assessed the evidence filed and found that the operation of the tire business appeared to contravene section s. 9(1) of the EPA in so far as its commercial vehicle operations emitted a "contaminant" (sound) into the natural environment that may have the effect of interfering with the Hotel's normal conduct of business. The tire business's commercial vehicle...