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.