Preventing Vagueness and Uncertainty

Pursuant to section 129 of the Municipal Act, 2001, S.O. 2001, c. 25, municipalities in Ontario have the authority to prohibit and regulate noise by passing and enforcing by-laws that regulate noise disturbances. In drafting such by-laws, municipalities must take care to ensure that the parameters of what is and what is not permitted are clearly set out, as Ontario Courts have struck down noise by-laws in their entirety where the Court has determined that the by-laws were vague and uncertain.

This article explores two instances where noise by-laws were quashed on the grounds of vagueness and uncertainty: 1) noise by-laws that import a subjective standard to determine a noise violation, and 2) noise by-laws that fail to provide any standards, criteria, or guidelines to determine whether or not a person is entitled to an exemption from the noise by-law. This article provides recommendations to draft noise by-laws that provide an objective standard to determine noise and provide standards, criteria, or guidelines for exemptions from noise by-laws. These recommendations can also be applied to other types of by-laws that prohibit and regulate matters, such as by-laws dealing with vibration, odour, dust, outdoor illumination, and others.

Subjective Standards in Noise By-laws Are Vague and Uncertain

Courts have declared invalid or void noise by-laws that contain a subjective standard to determine a noise violation. A standard is subjective when a noise violation is determined based on whether the noise in fact disturbed a person. A standard is objective when a noise violation is determined based on whether the noise would disturb a reasonable person, whether the noise exceeds a certain sound level limit, or whether the noise is clearly audible at a point of reception.

The distinction between an objective and a subjective standard for noise may simply involve the word “likely”. Noise by-laws that prohibit “noises likely to disturb a person” have been found to provide an objective standard for noise,¹ whereas “noises that disturb a person” have been found to provide a subjective standard for noise. Courts have upheld the validity of noise by-laws with an objective standard, and declared invalid noise by-laws with a subjective standard for vagueness and uncertainty.

The crux of the issue is that noise by-laws create an offence and therefore a person must be able to determine if a breach will, or is likely to, occur if that person takes a particular action from the outset. Where an objective standard is used, a reasonable person should be able to determine whether the nature, severity and duration of the interference is such that it would not be reasonable to expect an ordinary person to tolerate it. That a person ought to be able to determine if a breach is likely to occur can be frustrated if a subjective standard is applied as one must be beholden to persons with idiosyncratic or abnormal sensitivities.

In R v Highland Packers Ltd. (“Highland Packers”),² a provision in a noise by-law which prohibited “the ringing of any bell…shouting or any other noise that disturbs any of the inhabitants” was held to be illegal and void. The Ontario Divisional Court found that the provision exceeded the enabling legislation, because the provision set out a subjective standard that prohibited “noise that disturbs”, while the enabling legislation provided an objective standard to prohibit noise “likely to disturb”.³ The Court also explained the problems with a subjective standard in determining whether there is a noise violation. A subjective standard “prohibit(s) any noise that in fact disturbs any of the inhabitants of the Town of Stoney Creek, regardless of how trifling the noise and how petty or unreasonable is the disturbance.”, whereas an objective standard “could only be proved by establishing that the noise complained of was one that was likely to disturb the inhabitants.”⁴

In Jaukovic v Blue Mountains (Town) (“Jaukovic”)^,5 the Ontario Superior Court of Justice followed the decision in Highland Packers Ltd., and held that a noise by-law was illegal and invalid because it exceeded the enabling legislation. The applicant was charged under a noise by-law that provided:

1. THAT no person within the area of the former Township of Collingwood shall make noise or cause noise to be made or permit noise to be made that would be likely to disturb the inhabitants of the municipality;
2. THAT for the purposes of Section 1, the following noises or sounds among others shall be deemed to be likely to disturb the inhabitants of the municipality:

(a) The sound or noise from, or created by, any radio, television, phonograph, or any other electronic device, or any musical or sound producing instrument of whatsoever kind when such radio, television, phonograph, device or instrument is played or operated in such a manner or with such volume as to annoy or disturb the peace, quite, comfort or repose of any individual within, or having quite enjoyment of the lands upon which is located, any dwellling unit, apartment building, hotel, motel, or any other type of residence. (emphasis added.)

Under the former Municipal Act, R.S.O. c. M.45, section 138 permits a municipality to pass by-laws for “prohibiting or regulating… noises likely to disturb the inhabitants.” Because section 2(a) expanded the scope of section 1 to “prohibit sounds or noises created by electronic device which does in fact ‘annoy or disturb…any individual,’” the Court found that sections 1 and 2(a) exceeded the enabling legislation and was invalid.

Although these cases are helpful in establishing the absurdity inherent in a by-law with subjective standards, they were decided under the former Municipal Act, which permitted municipalities to pass by-laws to prohibit or regulate noises “likely to disturb” inhabitants. In both Highland Packers and Jaukovic, the noise by-laws were declared illegal and invalid because the municipalities exceeded their jurisdiction by passing by-laws that set out a subjective standard to determine a noise violation, when only an objective standard is permitted under the former Municipal Act. The analogous provision in the current Municipal Act⁶ no longer contains the words “likely to disturb”.

Notwithstanding the wording of the enabling legislation, Courts have held that noise by-laws with subjective standards to determine noise violations are uncertain and vague by their very nature. In R v McEvenue,⁷ the Ontario Provincial Court overturned a conviction made under a noise by-law and held that the provision which the appellant was charged under was void for uncertainty, because it did not set an objective standard. The provision prohibited noises “from or created by any radio receiving set, television receiving set…in such manner as to disturb or to likely disturb the peace, quiet…”⁸ (emphasis added). The Court found that conviction under that provision depended upon “the subjective standard of those who may be disturbed by the noise. And that standard will clearly vary from person to person, even from the same noise.”⁹ The Court’s example of the uncertainties that arise from a subjective standard for noise is fitting and worthy of consideration:

…if a gifted young pianist is honing his skills on his piano at home in preparation for an examination or a recital, and he happens to live in a semi-detached house with thin walls next to a crusty scrooge-like character who regards all happiness and music as a humbug, and is therefore disturbed by the playing of the piano, that gifted young pianist would run afoul of the by-law. And that would be so irrespective of the time of day or night he may play. On the other hand, if his neighbour is a music lover, and is therefore not disturbed, there would be no breach of the by-law. In addition, even though it may be reasonable, certainty is also a requirement for validity… ¹⁰

Herein lies the root of the uncertainty; whereas the objective standard requires that the offended person be “reasonable”, the subjective standard relies on the uncertainties of the mood, preferences and tastes, prejudices, sensitivity, idiosyncratic nature, etc., of the person upon who’s ears the sound may fall. This, of course, cannot be discerned by the person emitting or permitting the sound to be emitted, and therefore, that person cannot determine if the by-law will be offended from the outset.

In Reid’s Heritage Homes Ltd v Guelph (City) (“Reid”),¹¹ the Ontario Superior Court of Justice declared that the definition of noise, “disturbed or is likely to disturb the peace, quiet comfort or repose of any person” (emphasis added), was void and unenforceable for uncertainty and quashed the by-law in its entirety.¹² The Court found that there were two operational aspects to the definition of noise, which created uncertainty:

(1) The subject sound disturbs any person; or

(2) The subject sound is likely to disturb the inhabitants.¹³

The Court found that the definition of noise in the by-law was uncertain, because it is unclear as to which test applies in determining whether there was an offence under the by-law: the subjective standard (i.e. disturbs any person) or objective standard (i.e. likely to disturb). Further, it can be inferred from the decision that the subjective standard itself was another level of uncertainty: “the person might reasonably be left in a state of uncertainty as to whether his or her music would disturb any other inhabitant at any sound volume regardless of the personal tastes or preferences of that other inhabitant.”14 As stated by Lunch J. in Geil v North Dumfries (Township),¹⁵ the problem with the noise by-law in Reid is “with respect to a person being left in a state of uncertainty as to whether their music would disturb any other inhabitant, given that reference to actually disturbing any person is purely subjective.”¹⁶

Noise By-laws Without Criteria for Exemptions Are Vague and Uncertain

The problem of vagueness and uncertainty in municipal noise by-laws is not limited to the standard to be applied in determining whether an offence has occurred. Rather, vagueness and uncertainty are also found in how exemptions to the provisions set out in municipal noise by-laws are applied.

Many municipal noise by-laws allow a person to apply to the municipality for an exemption from the noise by-law. However, noise by-laws without any criteria or guidelines to enable a person to know what requirements must be met to obtain an exemption are vulnerable to challenges on the grounds of vagueness and uncertainty. In Dhillon v. Richmond (Municipality),¹⁷ the noise by-law contained an exemption provision that provided for the issuance of permits to allow the holder of the permit to make certain noises that would otherwise have been prohibited by the by-law. The exemption provision did not contain any guidelines for the noise control committee to apply when determining whether a permit should be issued.

The British Columbia Supreme Court held that the exemption provision was invalid for uncertainty and quashed the entire noise by-law, because the exemption provision contained no standards or guidelines for the issuance of a permit and could not be severed from the remainder of the by-law. The Court stated:

A reasonable reader of this noise by-law would have no idea what grounds there might be for issuing or refusing a permit to him. In Red Hot Video, supra., there were "no reasonable standards." In the case at bar there are no standards at all. Similarly, in Doman, supra., the Court was concerned with the lack of precise details which a landowner must meet when asking for a development permit. There are no guidelines in s. ¹⁶ which would enable a potential applicant to govern himself.¹⁸

Similarly, the Ontario Superior Court of Justice in Lawrence v. Muskoka Lakes¹⁹ held that an exemption provision which allowed Council to grant a temporary exemption from the noise by-law was invalid for vagueness and uncertainty. The Court held that the exemption provision was impermissibly vague because it failed to provide any standards, criteria or guidelines upon which an exemption request could be based, and that a reasonably intelligent person would not be able to determine the meaning of provision. The Court struck the entire noise by-law, finding that the exemption provision was unseverable from the rest of the by-law.

Recommendations for Drafting Noise By-laws

Noise by-laws should provide for an objective standard for violations and clear standards, criteria, or guidelines for an exemption from the noise by-law.

1. Provide objective standards for noise
   

Objective standards provide certainty and allow a person to determine whether a type of noise is prohibited under a noise by-law. Some examples of noise by-laws containing wording where courts have held to provide objective standards are listed below:

• “No person shall cause or permit any bass noise, unusual noise or noise likely to disturb the inhabitants of the City.” (emphasis added) – Section 2, City of Ottawa By-law 2017-255
•  “No person shall emit or cause or permit the emission of sound resulting from an act listed herein, and which sound is clearly audible at a point of reception.” (emphasis added) – Section 2, Township of King By-law 81-42
•  “No person shall emit or cause or permit the emission of continuous amplified sound, measured with a sound level meter at a point of reception in an outdoor living area 1) that has a sound level (expressed in terms of Leq for a ten-minute period) exceeding 50 dB(A) or 65 dB(C) from 11 p.m. to 7 a.m. or 55 dB(A) or 70 dB(C) from 7 a.m. to 11 p.m.” – Chapter 591-2.1, Toronto Municipal Code
  

2) Provide standards, criteria or guidelines for grants of exemption from noise by-laws

Noise by-laws should provide standards, criteria or guidelines to permit a “reasonably intelligent person” to determine whether or not he or she is entitled to an exemption from the noise by-law.

An example of a noise by-law that provides criteria for the issuance of an exemption permit is the City of Toronto’s Noise By-law (Toronto Municipal Code, Chapter 591). Chapter 591-3.2 of the City’s Noise By-law specifies the conditions which must be met in order to receive an exemption permit.

The above two recommendations are not only applicable to noise by-laws, but apply equally to other types of by-laws that prohibit and regulate matters, such as by-laws dealing with vibration, odour, dust, and outdoor illumination.

This article was originally published on the Ontario Bar Association’s Municipal Law Section Newsletter on December 4, 2021. Click this link to view the Newsletter.