IN THE SUPREME COURT OF BRITISH COLUMBIA
Churcher v. Richards,
2014 BCSC 2093
Patricia Ann Churcher and Feror Richard Mittelberg
Before: The Honourable Mr. Justice Greyell
Oral Reasons for Judgment
The Petitioners, Patricia A. Churcher
and Feror R. Mittelberg:
Counsel for the Respondent:
Place and Date of Trial/Hearing:
October 27, 2014
Place and Date of Judgment:
October 27, 2014
 THE COURT: These are my reasons for judgment in this case. I am issuing them because the respondent neither filed a response to the petition nor appeared at the hearing of the petition and, accordingly, I have asked that these reasons be transcribed and a copy be served on him along with the order.
 This is an application brought by the petitioners, Patricia Ann Churcher and Feror Richard Mittelberg, for a number of orders directing that the respondent cease and desist burning materials from his residential fireplace which cause an excessive and unreasonable amount of noxious smoke; that he cease and desist from accumulating scavenged wood on his property; that he cease and desist from the use of commercial style power tools, except in accordance with the City of Port Coquitlam Bylaw 28713 which prescribes the hours of the day and which days of the week such power tools can be operated; for an order preventing the respondent's trespass onto the petitioners' property, which involves a cease and desist of what is described as further destruction of the petitioners' cedar trees abutting the petitioners' property line with the respondent; and that the respondent have no contact directly or indirectly with the petitioners, their guests, residents at their home, and any employees of contractors they may invite to enter onto their property.
 The petitioners reside on property in Port Coquitlam which abuts that of the respondent. The petition is supported by the affidavits of the petitioners and by three neighbours, all of whom live in close proximity to the respondent. All are long-term residents of the neighbourhood in which they reside.
 I will deal first with the essence of the complaint: the emission of what is described as noxious smoke from the respondent's wood-burning fireplace.
 I will turn first to review the evidence filed in support of the petition.
 Mr. Hawthorne has been a resident of the area for some 23 years. He describes the smell of the smoke in the neighbourhood as noxious and says such smell has occurred over the last several years, but, to use his words, the smell and smoke "got significantly worse throughout the very warm summer and fall of 2013 up to the present time". His affidavit was sworn in June of 2014. He describes an incident in August of 2013, when he came home to the "smell of noxious smoke" in his yard.
 He deposes that he has been adversely affected by what he describes as "this horrible detrimental smoke” which causes him “irritated eyes and a stinging nose. I had allergies and use an inhaler". He goes on to say, "the smell has permeated my home and our carpets, drapes, and furniture stink of the smoke. I cannot open the windows or doors of my home when the smoke happens and feel like a prisoner in my own home". In another paragraph, he describes the smoke as being a "horrible" smoke. In May of 2014 while he was waiting at a bus stop at 5:30 in the morning, he says he "observed the noxious smoke billowing from the chimney" at the respondent's residence.
 He deposed that he spoke with the respondent on June the 10th, 2014. The respondent told him, "He intends to continue burning and if I wanted to change, the City bylaw needs to change." Mr. Hawthorne relates, "He," that is, the respondent, "is not open to using other means to heat his basement such as natural gas or electric heaters, which I suggested". He says, the respondent, "is not concerned about the adverse effects on me or any of the neighbours".
 Mr. Hawthorne describes the respondent's carport as being stacked with old lumber including plywood and painted wood. Mr. Hawthorne deposes he feels his "rights to clean air and a smoke-free environment even within my own home are being violated by a person who has no intention of stopping this burning".
 Ms. Catherine Hawthorne, a neighbour to the petitioners and wife of Mr. Hawthorne, deposes that the noxious smoke emanating from the respondent's chimney has been affecting her health, giving her headaches and that her nose would sting. She deposes that, in the summer of 2013, she was unable to open her doors or windows because of the "noxious smell that permeated my home and made my house smell including my blinds and drapes". She deposes she could not enjoy "my yard or do any gardening".
 She has asked the respondent to stop the burning he does because of the adverse effects his fireplace smoke was causing to her health and well-being. When she asked him why he burns on hot days, she deposed the respondent responded, "He burns to warm his house and that he likes it toasty". He also told her that, "He," and this is her language, "does it to bug the neighbour," gesturing to the home of the petitioners. During a further conversation with Mr. Richards, Ms. Hawthorne deposed Mr. Richards again told her he burns to annoy the petitioners, and that she was "collateral damage". Ms. Hawthorne deposed that the respondent has continued to burn materials causing noxious smoke up to the date she swore her affidavit, on June 23, 2014.
 Ms. Hawthorne has contacted Metro Vancouver's officer at the Environmental Regulation and Enforcement Division who she says advised her she was not the first person to complain, but that the Division was unable to do much about the respondent's conduct.
 Mr. Clayton Zibert, also a long-time resident of the area who lives across the street from the respondent, deposed the respondent has burned materials in his fireplace which has created noxious smoke over the past year since the last spring or early summer of 2013. He deposed that the smell of the smoke adversely affects his breathing; that he is allergic to cedar and the smoke that it produces. He says that when the respondent burns in his fireplace and causes the noxious smoke, Mr. Zibert cannot open his doors or windows or go outside of his home until the smoke subsides.
 Mr. Zibert says he has told the respondent, Mr. Richards, many times that "his smoke stinks and affects us", (the neighbourhood) "adversely, but the respondent does it, anyway".
 Mr. Roger Dotzler is also a long-time resident of the neighbourhood. He has filed an affidavit in support of the petition in which he deposes that the noxious smoke emanating the respondent's fireplace has adversely affected his health. Mr. Dotzler says the noxious smoke coming from the respondent's fire chimney has increased drastically over the last year. Mr. Dotzler believes the respondent is burning garbage. As a result of the smoke, Mr. Dotzler has had to clean what he describes as the "huge amount of soot" produced from the chimney and has had to clean the exterior of his home more than he usually does. Mr. Dotzler also deposed to an incident in or about October of 2013 where he observed the respondent trying to push some of the petitioner’s trees over within a day of installation".
 The petitioner, Mr. Mittelberg, deposes that the noxious smoke has been emanating from Mr. Richards' chimney over the last year and that the smoke has adversely affected his breathing, as well as making him nauseated. Mr. Mittelberg is on chemotherapy for a systemic illness. Mr. Mittelberg deposes the petitioners are unable to sit on the deck of their house or be outside for any length of time doing yard work or, in fact, doing anything outside as a result of the black soot which is in the smoke emanating from the respondent's chimney.
 Mr. Mittelberg has deposed that for the last three years, the respondent, on an ongoing basis, has violated the City of Port Coquitlam's noise bylaw by operating power tools outside of the noise bylaw hours with the result that the quiet, peace, rest, enjoyment of their home and that of the neighbourhood is disturbed.
 The petitioners both deposed that during the week of October 6 to 13, they contracted a landscape company to install cedar hedging around the perimeter of their property; that during the course of such planting, the landscapers had to leave the job early as they could not work as a result of the smoke from the respondent's fireplace wafting over them, which affected their ability to breathe. Further, the petitioners say that the respondent trespassed upon their property after the trees were planted and cut a number of the branches of those trees such that a number of trees were damaged. I will add to that, that the trees were located entirely on the petitioners' property.
 Ms. Churcher, essentially, repeats what Mr. Mittelberg has deposed to regarding the noxious smoke emanating from the respondent's chimney, which she describes as "excessive and unreasonable," and that such smoke adversely affects her breathing and makes her nauseated in addition to causing her loss of enjoyment of the exterior of her property.
 It is obvious from the material before me the smoke emanating from the respondent's chimney has become worse over the course of the last year. I have before me a number of photographs that are annexed as exhibits to several of the affidavits which support the assertions contained in the affidavits.
 The petitioners have approached the City of Port Coquitlam and they have approached the Environmental Regulation and Enforcement Division of Metro Vancouver and the RCMP to endeavour to obtain relief. None of those agencies have been able to offer the petitioners any relief. Several of the affiants suspect the noxious odour and the soot are caused by materials the respondent burns in his fireplace including wet wood, paint, garbage, and plywood.
 The police have spoken with the respondent. The enforcement officer with the Greater Vancouver or Metro Vancouver Environmental Regulation and Enforcement Division has spoken with the respondent. The respondent has been provided with a copy of "Tips and Information", part of a pamphlet produced by Metro Vancouver which speaks to the issue of what should and should not be burned in a wood-burning appliance.
 It is relevant, in my view, to refer to the Greater Vancouver Regional District Air Quality Management Bylaw Number 1082. The bylaw includes “residences”: (s. 4(3)).
 Section 10 of the Bylaw reads:
Notwithstanding any other provision in this Bylaw no person may discharge or allow or cause the discharge of any air contaminant so as to cause pollution.
 Section 3(2) defines "air contaminant" as meaning:
any substance that is emitted into the air and that
(a) injures or is capable of injuring the health or safety of a person …
(c) interferes or is capable of interfering with visibility …
(e) causes or is capable of causing material physical discomfort to a person …
At least s-s. (a) and s-s. (e) are met in this case.
 "Pollution" under the same section is defined as a:
… presence in the environment of substances or contaminants that
substantially alter or impair the usefulness of the environment …
 This is a residential area. Clean air is an essential element of the usefulness of the environment such as to enable the residents of this residential area to enjoy the usefulness of their environment. I find the discharge of smoke from the respondent's chimney to offend the Act. I am not charged, on this application, with enforcing this bylaw. That is a matter, in my view, for the Greater Vancouver Regional District. However, I think it is of some significance in determining whether or not a nuisance exists. That is the question before me, that is, whether the respondent's conduct amounts to a nuisance.
 The petitioners have provided me with several authorities. I think it necessary only to refer to one, that being the decision of Moore v. Smith Construction Company, 2013 ONSC 5260, where the court stated at para. 12:
A nuisance arises when a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land. It often occurs in the context of conflicting activities conducted in close proximity to one another. Whether a particular act or omission constitutes a “nuisance” in the legal sense depends on assessment of four factors. They are as follows:
i. character of the neighbourhood
ii. severity of interference
iii. utility of the defendant’s conduct
iv. whether the plaintiff displayed abnormal sensitivity.
 I will apply these criteria to the present case.
 Firstly, the character of the neighbourhood. It is clear on the material before me this is a residential neighbourhood. The residents of the community are entitled to protection from nuisances consistent with the nature and character of the neighbourhood. That is, one must the fact this is a residential neighbourhood. It is not an industrial neighbourhood. It is not a mixed use neighbourhood. The residents of the neighbourhood are entitled to be able to enjoy the use of their properties without being unlawfully annoyed, prejudiced or disturbed as is occurring in the present case.
 Secondly, the severity of interference. In this case, the severity of interference is high. All deponents describe the strong noxious smell of the smoke and how it interferes with their enjoyment of life on their property and with their health. One property owner must now power wash or clean his home more frequently because of the soot residue left by the smoke. Again, the photographs demonstrate the pall that overhangs the neighbourhood following the respondent's burning in his fireplace. There has been a substantial interference which has been more than transitory having lasted in excess of one year.
 The third criteria is the utility of the defendant's conduct. I can detect no utility from the defendant's conduct. He has not chosen to respond to the petition and he has not appeared before this court on the hearing of the petition. The evidence is that the petitioners are actually targeted by the respondent and this goes to the fourth point, as well, and that is whether the petitioners have displayed abnormal sensitivity. I find they have not. The petition is supported by a number of their neighbours who experience the same nuisance as the petitioners do.
 The respondent has been directed as to what is the appropriate fuel to put in his wood-burning stove and he apparently chooses not to fuel his stove in accordance with those recommendations. What he is doing, as I have said, is intended to cause direct inconvenience to the petitioners, his next-door neighbours. Whatever it is the respondent is burning, be it driftwood, plywood, household garbage, or unseasoned firewood, is causing, in my view, a significant nuisance to his neighbours and must be restrained.
 It is also apparent the respondent has options. In her affidavit, Ms. Hawthorne referred to a conversation she had with the respondent. She does not date the conversation, but I will repeat paragraph 14 of her affidavit. "He," that is, the respondent, "said he would only be burning for a few more days because he was having his gas furnace hooked up again to have heat for his home again."
 I have considered a less restrictive order than the one I am going to make. The order requested is that the respondent cease and desist burning of all materials in the respondent's fireplace causing the excessive and unreasonable amount of noxious smoke. To make such an order, in my view, would result in an unenforceable order or a vague order in the sense that the court does not know what it is that the respondent is burning. Therefore, in my view, it is more appropriate to issue a cease and desist order preventing the respondent from using his wood-burning fireplace at all.
 The respondent will be at liberty to apply to this court to lift the terms of this order by giving appropriate notice under the Rules of Court to the petitioners.
 The second order sought is a cease and desist order relating to the accumulation of materials including scavenged wood and so forth. I do not grant that order. I doubt I have jurisdiction to grant that order.
 The third order sought is the cease and desist order concerning the use of commercial style power tools outside the hours specified in the City of Port Coquitlam Bylaw 2891(3) which I will call the noise bylaw. I grant that order.
 The next order sought, number 4, is a cease and desist order of any further destruction of the petitioners' cedar trees abutting the petitioners' and respondent's property line. What I grant 4 is an order prohibiting the respondent from trespassing on the petitioners' property which should solve the tree cutting issue.
 There is an order sought that the respondent be compelled to replace a section of fence. I am not going to grant that order.
 PATRICIA CHURCHER: That whole fence is gone, anyway.
 THE COURT: Thank you.
 An order is sought that the respondent is to have no contact directly or indirectly with the petitioners, their invited guests, other residents of the home, or any employees of any contractors or companies the petitioners hire. I am going to make that order in this way. The respondent is to have no contact directly with the petitioners, their guests, or any employees of any companies the petitioners may hire, and I am going to amend that slightly to, "The respondent shall have no contact or interfere with the petitioners, et cetera," and what I have done is I have deleted the words "or indirectly" because that would restrain any contact between any counsel you may at some stage decide to retain and the respondent. I have deleted the word "invited". The respondent would not know whether a person is invited or not? I have also deleted "other residents of the home" because I think that term is included in "guests" and, again, the order must contain an element of certainty and the respondent must know what it is he must comply with.
 Is there anything arising from the order that I have granted?
 PATRICIA CHURCHER: The amount of trees that you mentioned, eight. There is [sic] way more than eight trees that was destroyed by him. How many do you think?
 FEROR MITTELBERG: Thirty.
 PATRICIA CHURCHER: That many?
 FEROR MITTELBERG: Yes.
 THE COURT: All right. Well, your comments will be -- the amount of trees does not --
 FEROR MITTELBERG: That does not --
 THE COURT: -- does not -- is not reflected in the order.
 PATRICIA CHURCHER: Right.
 THE COURT: Your comment will be part of the transcript that the respondent will receive.
 Now, you will be responsible for drafting the order and the order is to be served on the respondent. I have asked for an expedited copy of these reasons to be prepared so that you will also serve a copy of the transcript with the order in order that the respondent will understand why the order has been issued and, if there are terms of the order that Mr.
 Richards takes issue with, he will have liberty to apply on the terms that I have set out.
 You are entitled to your costs of this application.