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October 2018 Court Ruling: What Does it Mean?

In June 2017, the Sahtlam Neighbourhood Association, along with six Sahtlam residents, filed a lawsuit against the Vancouver Island Motorsport Circuit (VIMC) for causing a “nuisance at law” by creating excessive noise. Because the lawsuit specifically referred to bylaw violations, the Municipality of North Cowichan (MNC) was named as a third party. The case is scheduled for trial in October 2019.

This past June, VIMC filed an Application to have certain portions of the lawsuit removed. Two months later, MNC filed a very similar Application. Those two Applications went before a judge last month and the ruling came down yesterday (October 12). The judge ordered that some of the requested portions must be removed from the lawsuit, while others are allowed to remain. What does this mean for the SNA and the nuisance suit? - very little, as it turns out.

Part of the nuisance lawsuit asks the court to make official “Declarations” if they find that VIMC is operating in violation of municipal bylaws (which would compel MNC to fix the zoning), and to issue Court Orders prohibiting VIMC from operating in violation of those bylaws. The ruling that came down yesterday says that these Declarations and Court Orders are not allowed to be part of the nuisance suit, and so they have been removed. However, it’s important to understand that the removal of these portions of the lawsuit has no effect on the nuisance claims.

First, the judge ruled that the plaintiffs ARE allowed to raise the issue of bylaw compliance at the nuisance trial next year, and the judge who hears that case may find that VIMC is operating in violation of local bylaws. The difference is that there will be no official “Declaration”. It’s a subtle legal distinction that has to do with whether the Municipality needs to remain involved in this lawsuit. Bottom line: whether VIMC is operating in violation of municipal bylaws is still an open issue that will be heard by the courts next year.

Second, the request for a Court Order that VIMC stop violating the bylaws was intended to provide some noise relief to the neighbourhood until permanent noise mitigation could be implemented. But it was never a key part of the nuisance lawsuit. Instead, a Court Order requiring VIMC to stop violating provincial nuisance laws is the key to controlling noise permanently, and that remains in the lawsuit. Bottom line: when the case goes to trial next year, if VIMC is found to be creating a nuisance, the court can issue an order that VIMC must adhere to noise restrictions that will prevent further nuisances.

Both VIMC and MNC asked for other parts of the lawsuit to be removed that had to do with zoning and bylaws, such as: “The zoning bylaw does not permit use as a motor car racetrack and/or driver training track on the I-2 zoned portions of the land”. The judge did not allow these to be removed from the nuisance lawsuit. Nor did he allow the removal of five paragraphs of legal arguments under the heading “Not a Permitted Use of the Lands”. This means that whether VIMC is operating in compliance with the zoning bylaws remains an issue in the nuisance lawsuit.

To summarize, while VIMC and MNC were partly successful in their application to remove portions of the nuisance lawsuit, important portions of the lawsuit remain and this outcome has virtually no effect on the strength of the lawsuit itself. This was a procedural interim application only. In October 2019, the court will hear our case and consider whether VIMC is creating a nuisance (through excessive noise) and whether they are operating in violation of local bylaws while doing so.

For further information, or to ask any questions about this matter, please feel free to contact us.

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