Our ordeal began in 2002 .. Interlocutory Injunction
obtained in May of 2005
I can tell you first-hand what it is like when one is
forced to deal with a smoke issue, as I have lived through it.
I can tell you that the stench permeates your entire
home, your clothing, your hair, and you can even taste it.
Exposure to the smoke was extremely uncomfortable and
caused burning eyes, dry throat, irritation of the nasal passages and headaches.
When the smoke stopped, so did the symptoms.
There was no relief by opening windows because the
acrid smells were like a fog covering our house. Buying expensive air cleaners
did nothing to remove the odours.
There was no enjoying the deck and yard as long as the
wood burning stove was in operation.
As there was no provincial or municipal authority to
whom I could turn to for help, I was forced to resort to the courts.
In order to get the smell of the wood smoke out of the
house, we removed and replaced the carpeting, ductwork,
the furnace and air conditioning unit, and cleaned all
surfaces including the walls. Mattresses and pillows were discarded as they
smelled of wood smoke. It was an expensive project.
I can tell you the fatigue my husband felt after
working all day and then going to our house until near midnight day after day to
work on the renovations. Myself, I had all the clothing and every knick-knack
and assorted other household objects to wash before bringing them back to the
I came to notice that there were absolutely no cobwebs
in a house that had been vacated for so long. I can only assume that something
in the smoke killed the spiders because, now that we have the Injunction and
there is no burning, I again have cobwebs.
We were fortunate enough to have the means to seek
legal help. Remember that there was no provincial or municipal authority which
we could turn to for help. What would happen to those that cannot afford legal
help? Would they be forced to move out of their homes? Could they afford to do
that? Would they be able to sell their home when a potential buyer saw or
smelled the smoke? Or, would they have to remain in their homes with their
children and become sick? It's a thought that is very disturbing to me.
I think it is high time that our municipalities give
some thought to wood burning in residential areas. I fail to see how
the public interest is served by permitting smoke from a neighbor's burning to
fill a property and permeate all surrounding homes. Wood smoke is a serious
On September 10, 2008, I
attended Motions Court to hear the motion filed by the defence attorney. He had
filed a motion to delay trial and have the injunction lifted to allow his
clients to burn for 3 days to test their chimney. For what purpose, I do not
know, as this would be 3 years after the damage to our home. The judge declined
the motion and ordered trial to take place as scheduled.
On September 16, 2008,
I attended Motions Court once again as the defence attorney had filed another
motion to appeal the deposition of September 10, 2008. The visiting judge
granted the appeal and it was heard in Divisional
Court in London, Ontario before a panel of 3 judges.
On November 16, 2009, the Appeal Hearing was heard. They lost their appeal and
trial will be booked.
Trial is booked,
at last, for the week of December 6, 2010
Once, again, we are delayed. Our
case was on the 'running list' and we were bumped due to the case load. Trial is
to be rescheduled.... with any luck all involved will live long enough to see
the completion of this very lengthy challenge....
April 04, 20111, I received word that the trial is booked
for the week of September 12th and we are in the # 1 position to be heard. At
last we will have our day in court!
Monday, September 12, 2011 we finally went to
Here is a
breakdown of what took place:
The judge was Justice Nolan at the Superior
Court in Windsor, Ontario Canada.
Our lawyer had sent a fax to the opposing
lawyer, in response to a request if there was any way to settle the issue
before trial, with what we would accept if the matter was to be settled.
Nothing was sent back so we proceeded with the preparations for trial,
including setting up a projector with the photos and videos that I had taken
over the years.
At trial, just after the judge opened the
case, the opposing lawyer said he had never received the fax and asked the
judge for time to speak with our lawyer. The two lawyers came back and the
opposing lawyer asked the judge for 15 minutes to speak with his clients.
They came back in and then our lawyer asked for 15 minutes to speak with us.
As the defendants had agreed to what we had
proposed, which included the permanent injunction, damages and the
all-important easement over their property so that nobody who ever lives
there can burn anything, we were satisfied and took the matter back to the
judge for final authorization. Since a judge cannot order the easement over
a property it has to be negotiated by the parties, we decided to go with
this as the easement over the property is priceless!
I am hoping that this victory will help the
Amherstburg council and mayor to realize how important it is to create or
amend a bylaw to cover nuisance smoke so that there is recourse for
residents subjected to a neighbour’s smoke. Those affected by smoke from a
neighbouring property, as it stands right now, have nowhere to turn unless
they can afford to take legal action.
A motion for a "nuisance smoke" bylaw was heard at the Amherstburg
council meeting on Monday, September 26th. It was a tie vote until Mayor
Hurst broke the tie and it was defeated. It was followed immediately by
another motion to request that the Administration, the Fire Department
and the Building Department research and come up with a bylaw to address
residential wood smoke that crosses onto another property. This motion
was passed on November 21, 2011.
July 01, 2012
After nearly 7 months, a by-law was written and brought to
council. It will go through the process necessary and be brought back to
council, I am told, by the end of summer.
On June 28, 2012, I was disheartened to hear what Councillor
John Sutton had to say in a news clip on AM800 radio regarding the
Amherstburg 'nuisance smoke' bylaw. To even hint that a "nuisance smoke"
bylaw is not necessary, due to only three complaints, makes light of the
nightmare that we went through, the 8 months that we could not live in
our home, the expense of litigation and the work required to rid our
house of the toxins before we could move back home.
We were repeatedly told by the Building Department that nothing
could be done by them because there was 'no bylaw'. It is essential, in
my opinion, that one be put into place to protect Amherstburg residents
from nuisance smoke.
I have worked endlessly to get a "nuisance smoke" bylaw into
place to give recourse to others who find themselves in the situation
that we were in. It can happen to anyone almost overnight as it did to
us. Not one person can say that it would never happen to them. It was
the last thing we could have ever imagined would happen.
Yes, a "nuisance smoke" bylaw is essential to ensure that all
residents are protected and I hope that the council members will vote
yes and show Amherstburg to be a place where all residents are free to
breathe clean air in their homes and properties.
July 04, 2012
I have received and listened to the 3 audio clips of John Sutton
that were aired on a local radio station. In one clip he states that
"charges were laid". He worded it as if the Town had made the charge.
IF he was referring to our smoke problem,
that is not true at all. We, privately, took the burner to court to
obtain the court injunction with absolutely no help from the Town.
November 17, 2014
A bylaw has been passed that covers emissions from solid fuel
I wish to express my thanks to Bart DiPasquale for his belief in
this bylaw and the many hours he worked to achieve it.
Read it here
The tell-tale signs of incineration
Wood is hidden under plastic and
throughout the weeds