In the first court decision under s. 433 of the Municipal Act, 2001, the Ontario Superior Court of Justice ruled that a local Newmarket, Ont., composting company whose odours had distressed workers and residents for two years shut down its operations if it fails to carry out its proposed plan to eliminate off-site smells within 90 days.
The s. 433 provision allows a municipality to apply to the court for an injunction, closing premises for up to two years where the court finds that there is a public nuisance that has a detrimental impact on the use and enjoyment of property in the vicinity, and the owner failed to take adequate steps to eliminate the nuisance.
In the case of Newmarket (Town) v. Halton Recycling Ltd., Justice Alan Bryant found that if Halton doesn’t eliminate the odours within the 90-period, the composting company will be shut down for nine months.
“The residents and persons living in the vicinity of the Halton facility have endured the offensive odours for more than two years. I have considered the frequency and intensity of the offensive odours. Although the emissions are not toxic, they have caused headaches, nausea, and other health problems,” wrote Bryant in the Sept. 29 decision.
“The emissions have caused an adverse effect, namely the loss of enjoyment of the normal use of property and interference with normal conduct of business. I note that the town does not object to the existence of the facility or the recycling process but it does object to the unacceptable impacts on the quality of life of its residents and businesses. There is also evidence that other facilities are capable of processing organic waste if the Halton facility is closed.”
During the nine-day hearing, the Town of Newmarket said it had recorded 1,069 odour complaints about Halton over a two-year period from July 2004 onward. Meanwhile, Halton submitted that the town’s odour complaints tracking system was faulty and overstated the number of complaints, other sources of odours were erroneously attributed to Halton, and that a community group known as RASH (Residents Against Stinky Halton) encouraged others to respond to perceived odours.
In April 2005, the town instituted a 24-hour, seven-day-a-week, on-call service to respond to the large number of complaints made about smells attributed to Halton. A bylaw enforcement officer’s affidavit said that except on rare occasions the complaint could be traced to Halton and described the stench “as putrid, very foul, dirty, musty, and gross.”
The chief building officer and director of bylaws said he visited Halton on at least 50 occasions and said it stank of rotting garbage that varied from mild to nauseating. He also stated 80 per cent of complaints were in a 1,200-metre radius of the plant and that there were no other industrial operations in the vicinity that produced this type of smell.
“Local residents described the odours as bad, putrid, pungent, sickening, horrendous, foul, obnoxious, and smelling like feces,” wrote Bryant. “The complainants’ evidence was that the odours caused gagging, penetrated their homes spoiling meals and social events, and their use and enjoyment of the homes.”
The local RCMP detachment, located about 200 metres away from the composting facility, even set up its own system to gather complaints about the stench from its 300 employees. The detachment commander testified that the smell was putrid like baby diapers and that it was so frequent it affected morale. He also noted productivity in the building dropped during the particularly smelly times.
Bryant found that the odours were so unpleasant or unbearable as to constitute an adverse effect and a public nuisance. Although s. 433’s definition of public nuisances doesn’t specifically list odours, Bryant relied on the 2005 Ontario Court of Appeal decision in Croplife Canada v. Toronto (City) and found that s. 433 “should not be restrictively interpreted to limit relief to the enumerated categories of public nuisances.”
The s. 433 list includes: trespass; increase in garbage, noise, or traffic; harassment or intimidation; graffiti; and activities that have a significant impact on property values.
Counsel for the Town of Newmarket Marc McAree, along with Vivienne Ball of Willms & Shire Environmental Lawyers LLP, says that “clearly the decision is well-thought out.”
McAree says Bryant affirmed clear statements from the Supreme Court of Canada in Spraytech v. Hudson (Town) and from the Ontario Court of Appeal in Croplife.
“The decision confirms that local environmental issues and the regulation of environmental public nuisances is within the purview of municipalities to regulate and that the municipality can regulate when the Ministry of the Environment (MOE) has not taken steps to facilitate mitigation of the public nuisance impact on the community.
Junior counsel for Halton, Jonathan Davis-Sydor of Davis & Company LLP, says that in order for Halton to complete its remedial action plan to reduce its odours - at an estimated cost of $1 million - it needed approval from the MOE, which it applied for on May 8 and just recently received.
The remedial action plan will require Halton to:
• be limited to the receipt and processing of source separated solids to a maximum of 10 truckloads per week;
• operate and maintain the equipment and processes to reduce emissions from its process and take all reasonable steps to prevent fugitive emissions during the 90-day stay;
• use its best efforts to obtain all required government approvals to implement its plan; and
• construct structures and install equipment and make all necessary operational changes to fully implement the remedial action plan.
The changes included enclosing the whole operation so none is in open air and “scrubbing” the facility’s air of odours a number of times before it is released into the outdoors.
Bryant requested the MOE and the town to process the required approvals, licences, and agreements to allow Halton to complete its remedial action plan, however Davis-Sydor says the town hasn’t given Halton the required site plan amendment, “despite the fact they were ordered to expedite.”
He says Halton can’t proceed with its plan until it gets that approval and may bring a motion to extend the 90-day stay period, which would expire near the end of December, in order to avoid a nine-month shutdown of the plant.