Canada: Neighbourhood Annoyances And Class Actions: The Court Of Appeal Authorizes Class Action To Curb Highway Noise

Last Updated: July 20 2011
Article by André Durocher

On July 4, 2011, the Court of Appeal1 authorized a class action against the Québec government on behalf of a group of Charlesbourg residents complaining of noise caused by the Laurentian Autoroute.

The Court of Appeal set aside the motion judgment rendered May 17, 2010 by Justice Gilles Blanchet, who had dismissed the motion for authorization to institute the class action.2

Petitioners Charles Carrier, Maurice Filion and Réal Maltais complained that traffic on the Laurential Autoroute caused noise pollution. They argued that the noise constitutes an abnormal neighbourhood annoyance within the meaning of article 976 of the Civil Code of Québec.3

They tried to convince Transports Québec to build a noise-abatement wall.

The Superior Court ruled that the petitioners could not establish their prima facie right to the conclusions sought because the questions of fact or law raised in their legal action dealt with political decisions of the State.

While the motion judge decided that the members of the group raised identical, similar or related questions of law or fact, he also ruled that the petitioners had not tried to contact all of the residents to see whether they wanted to institute a class action by means of a mandate and power of attorney.

The Attorney General of Québec did not contest that the plaintiffs were capable of representing the class adequately.

The dispute before the Court of Appeal was basically an issue of colour of right: does the State enjoy immunity from prosecution in this particular case under the rule that political decisions are not subject to court review?

The Court of Appeal decided that the motion judge was "[TRANSLATION] overly stringent" when he "[TRANSLATION] prematurely" held that a ground of defence prevailed against allegations that are supposed to be held as proven at the stage of a motion for authorization to institute a class action.

The court stated:

[35] First, it is important not to confuse the systems inherent to controlling the lawfulness of State decisions with the system of civil liability. Since article 1376 C.C.Q. was adopted, the rules set forth in the Book on Obligations have applied to the State. If the State wants immunity from the civil liability system, it can claim public law immunity to free itself from its obligations, but the burden will then be on the State to prove that this ground of defence applies to its situation:

[31] [...]The civil law principles of civil liability now apply, as a rule, to wrongful acts by such bodies.  It therefore belongs to the party which intends to rely on the public law in order to avoid or limit the application of the general rules of civil liability to establish, where the need arises, that there are relevant public law principles that prevail over the civil law rules. 17 

[37] The sufficiency of the evidence is only weighed prima facie at the authorization stage; as a general rule, it would be premature to conclude that the immunity defence applies to the State. It is but one ground of defence among many, and the immunity invoked here by respondent cannot be raised as an objection to admissibility at the authorization stage. Unless it is agreed that the action is frivolous on its face or is certain to fail, that the allegations of fact are insufficient, or that the law invoked is "incontrovertibly" ill founded, it would seem unadvisable under the circumstances to determine the absolute value of this ground of defence at such an early stage of the analysis.

To conclude, the Court of Appeal believed that the motion judge should first have analyzed the sufficiency of the allegations of neighbourhood annoyances and of fault-based liability in order to properly assess the value of the theory posited in the class action before it retained the argument that the State enjoyed immunity from prosecution.

So what now? The Attorney General could seek leave to appeal the matter before the Supreme Court of Canada, or it could get to the merit of the issue by presenting the argument of State immunity once again.

If the Attorney General does not ask the Supreme Court of Canada to intervene, he would be conceding that the State immunity defence is a question of mixed law and fact, which is the same as saying that this type of ground cannot be successfully raised at the authorization stage of a class action.


1. Carrier v. Québec (Procureur général), 2011 QCCA 1231.

2. 2010 QCCS 2235.

3. Article 976 of the Civil Code of Québec:

Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions