Braeside residents win case against paving firm
Temporary asphalt plant deemed nuisance
Residents of Braeside are celebrating after a judge upheld a 2011 court decision that said the smells and sounds caused by a temporary asphalt plant in the area were a public nuisance.
Markham, Ont., paving and construction company The Miller Group set up the temporary plant at the Braeside Quarry in the fall of 2009.
But some residents of the municipality just west of Arnprior on the Ottawa River said their health was negatively impacted by the plant and that they couldn’t fully enjoy their properties. Nine of them took the company to small claims court.
The judge in the case ruled that the smells and sounds the plant emitted were not only a nuisance, but also amounted to trespassing and negligence, and awarded the group $14,700 in November 2011.
The Miller Group appealed the decision.
On Thursday, Ontario Superior Court Justice Martin James upheld the nuisance ruling and the $14,700 in damages.
He did not, however, uphold the trespassing and negligence rulings. In his decision James wrote that odour and smell are not tangible objects in terms of trespassing laws, and that negligence should not be considered because none of the residents suffered personal injuries or property damage.
Norma Moore, one of the residents in the suit, says she’s still ecstatic over James’s ruling.
“We had a very cut-and-dried case for nuisance, and really, that’s all that matters,” said Moore, who has lived in Braeside for 40 years.
Moore said she couldn’t be outside while the plant was running because the fumes made it difficult for her to breath.
“Even though we have lawns and gardens and a beautiful property for entertaining ... that was a very obvious way we couldn’t use the property.”
The lawsuit has been a long road, said Moore, but one that has brought the community together.
“We had a common problem that affected all of us and we worked to get the evidence to bring the facts together, to make a very solid case,” she said.
NORMA MOORE
Braeside resident
“It has made a difference in our community as far as knowing one another and working toward this common goal of preserving our neighbourhood,”
The long road might not be over, however. The Miller Group has been working since 2006 to create a permanent plant at the quarry.
‘We had a very cut-anddried case for nuisance, and really, that’s all that matters.’
A bid to rezone the area to build the permanent plant at Braeside Quarry was rejected by the township’s council, but the company is persevering and taking the township to the Ontario Municipal Board.
Moore hopes James’s decision to uphold the nuisance ruling will provide a precedent that a permanent plant in Braeside would be a public nuisance. “This is a rural residential community and it is not suitable for the type of heavy industry that this company wants to put in this location,” she said.
Tom Jones, property manager for The Miller Group, said the decision should have no impact on a permanent plant because temporary plants and permanent plants are “two different things.”
“One has no bearing on the other,” Jones said.
Jones said the company respects James’s decision and will review the appeal.