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Judge rules Kal Tire noise an environmental breach, grants Water Tower Inn injunction

A court order prevents the Old Garden River Road tire shop from doing commercial work over night after a judge agreed it could disrupt sleeping hotel guests
09-17-2019 Hilsinger 9
Water Tower Inn owner J.J. Hilsinger is pictured during a protest against Kal Tire outside the hotel in this September, 2019 file photo. David Helwig/SooToday
A Sault Ste. Marie judge has granted the Water Tower Inn an injunction limiting the hours of operation of a neighbouring commercial tire business because it emits sounds that may have an adverse effect on the hotel.

Superior Court Justice Michael Varpio's order, issued Monday, restrains Kal Tire Ltd. from servicing dump trucks, tractor trailers and other large commercial vehicles between 8 p.m. and 9 a.m., seven days a week.

Hotel owner Jim Hilsinger sought the injunction in the fall of 2019 after the city approved an occupancy permit for the business, which had relocated to the former No. 4 fire hall on Old Garden River Road.

After several delays, the matter was scheduled to be heard earlier this year, but when the COVID-19 pandemic struck it was eventually adjourned, on consent, and was not dealt with until 12 months after Kal Tire opened at the site.

The case was heard on Oct. 5 and 6.

Varpio found Kal Tire's operations breached a section of the Environmental Protection Act (EPA) because it emits a contaminant (sound) into the natural environment that "may" affect the hotel's normal conduct of business.

As a result of breaching the act, it contravenes a city bylaw and pursuant to a section of the Municipal Act, the Water Tower "is entitled to restrain the impugned conduct," he concluded.

During the hearing, Varpio received audio and video files that captured loud sounds from Kal Tire's operations, as well as a video complaint from an unnamed hotel guest, who was staying in a room that fronted on Kal Tire.

The judge concluded that the files and complaint indicate the sound generated by the company's commercial vehicle activities is very loud and "will impose a negative noise impact on the customers of the Water Tower Inn."

He said the evidence is consistent with a report from an engineer, hired by the hotel, and who is an expert in the field of noise and vibration.

The report indicated that the noise emitted from these activities greatly exceed the tolerances described by the EPA, its regulations and guidelines.

"Were this sound level to occur at night, I find that the Water Tower's online reputation would be affected," Varpio said.

Referring to case law, Varpio noted "A reputation for noisy rooms would no doubt deter persons from staying at the hotel. This is particularly the case with the proliferation of websites that review hotels and include comments from persons who have stayed in them."

He concluded that after considering all the evidence and applicable legal tests granting an injunction is the appropriate remedy in the circumstances.

The judge said he realizes Kal Tire opens for business at 7:30 a.m. on week days.

"I believe that the sound emitted by the servicing of commercial vehicles between the hours of 7:30 a.m. and 9 a.m. would reasonably be expected to interrupt the sleep of Water Tower guests," he said in the written decision.

"The possibility of permanent loss of reputation for the Water Tower in such a circumstance exceeds the inconvenience caused to Kal Tire by the loss of 90 minutes of weekday service time.

"This is especially true in light of the relatively small number of commercial vehicles serviced by Kal Tire" described in an affidavit the company provided to the court, Varpio said.


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About the Author: Linda Richardson

Linda Richardson is a freelance journalist who has been covering Sault Ste. Marie's courts and other local news for more than 45 years.
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