Our Story

Our Story

......to be continued as events unfold....

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 house.

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 health hazard.

Update:

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....

On 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!

VICTORY!!!!

On Monday, September 12, 2011 we finally went to trial.

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.

Click here for the article that appeared in the Windsor Star on September 16, 2011

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.

Click here for the story in the Amherstburg Echo

The tell-tale signs of incineration

Wood is hidden under plastic and throughout the weeds