A Sault Ste. Marie man has lost a three-year legal battle that began as a dispute between neighbours centred on backyard smoke and ended with him banned from using his barbecue -- and narrowly avoiding a contempt of court charge. A judge ordered the man in May 2023 not to have a wood fire in his backyard, issuing an injunction prohibiting the man “from burning ‘firewood or any other substances or materials on or around the (defendant’s) property.’” However, the judge said he was concerned that the defendant would try to “skirt any openings” in the injunction. “He therefore made the injunction, ‘absolute and without exception in order to ensure that (the defendant) does not attempt to thwart the spirit of this order,’” the Superior Court of Justice decision said. “The spirit of the injunction order, again, is to prohibit the burning of firewood or any other substances or materials that would prevent the plaintiffs from enjoying their property free from the potential harm of smoke inhalation.” On June 6, 2023, before the defendant agreed to the order, his lawyer asked whether it could be amended so his client could use his barbecue. The plaintiff’s lawyer rejected any amendments, but told the court that “the injunction order was not intended to restrict the defendant from using his natural gas barbecue in a ‘normal manner,’” the decision said. But then on two occasions in July 2023, “after the defendant finished cooking his dinner, he let the barbecue burn and smoke for about one and a half hours without attending to it and without cooking anything,” the court said. “On each occasion, the smoke impacted the (plaintiff’s) ability to enjoy their property, free from the potential harms of smoke inhalation.” On Sept. 9 that year, “the defendant lit a propane-fuelled fire in his backyard” for no apparent reason. A case conference was held in October, when the injunction was imposed. It read, in part, that the defendant was “prohibited from burning firewood or any other substances or materials on or around the property (in) Sault Ste. Marie, pending a final order in this matter ... The injunction granted herein is absolute and without exception.” The plaintiffs rejected a request to allow the man to use his barbecue because, they said, they “have no confidence your client will not use his barbecue to create a nuisance.” In November, the defendant’s lawyer wrote the judge asking for permission to use his barbecue “for no other purpose than for substance, cooking and eating,” but that request was not approved. On Feb. 20, 2024, the defendant himself wrote to the lawyer for the plaintiffs, informing them of his intent to use his “barbecue and other appliances that utilize liquid petroleum gas.” His letter insisted that the injunction order didn’t “include the use of liquid petroleum gas,” because, he wrote, it is a “mixture and is not a substance.” The man officially declared he would represent himself on Feb. 28, 2024. Smoky machinery, engine revving “In April 2024, the defendant started up what is described as a piece of machinery on his patio, six times throughout the day, which released a large amount of smoke,” the court decision said. “The timing corresponded to (the defendant’s) time outside in his yard. It was happening so frequently that another neighbour … voiced her concerns by affidavit sworn May 14, 2024.” In May 2024, the defendant revved the engine in one of his vehicles for two hours, releasing a large amount of smoke. The lawyer for the plaintiffs brought a motion to have the man declared in contempt of court. The decision in the Superior Court of Justice said the man understood the injunction, “he just didn’t agree with it or like it.” When he was given permission to use his barbecue “in a normal manner,” and with the barbecue positioned next to a fence between the two properties, “he let the barbecue burn and smoke for about one and a half hours without attending to it and without cooking anything.” “I can think of no reason the defendant did this except to intentionally disrupt the enjoyment of the plaintiffs. The defendant used his barbecue as a weapon of nuisance, in direct violation of the injunctive order,” the decision said. The same was true for the propane-fuelled fire in September 2023, the smoke-emitting generator that was turned on and off six times on one day in April 2024, and the engine-revving in May 2024. However, the man has complied with the injunction for the last two years, ever since he found out he could be held in contempt of court for not complying. While determining there were grounds to find the man in contempt, the judge said he was exercising his discretion not to do so “because of the defendant’s compliance for over two years.” “It is the expectation of this court that the defendant will continue to comply with the injunction order and not resort back to playing games and interpreting the injunction order in ways that suit his intention to disrupt the enjoyment of the plaintiffs,” the court said. The judge also ruled that the plaintiffs “are entitled to costs on all four motions, on a substantial indemnity basis.”
