Harold Armstrong Harcourt, Jeanne Katherine
Harcourt (Plaintiffs)
v.
The Honourable Donald C. Jamieson, the Hon
ourable Jean Marchand, Jan Lewandowski and
Lewmar Air Toronto Limited (Defendants)
Trial Division, Pratte J.—Toronto, October 12;
Ottawa, November 13, 1973 .
Aeronautics—Nuisance—Whether aircraft using airport
create nuisance to neighbours—Whether a trespass.
In 1965 plaintiffs purchased a farm near an airport which
was first licensed to operate that year. Plaintiffs complained
that in 1970 many aircraft taking off or landing at the airport
commenced flying at a very low altitude over their property,
but that despite numerous complaints the Department of
Transport took no preventive action. Plaintiffs brought
action against the former and present Ministers of Trans
port, the owner of the airport and the operator of a flying
school claiming a mandamus to compel the Minister of
Transport to enforce the provisions of the Aeronautics Act
to prevent planes using the airport from flying over their
property and for damages and an injunction against the
other defendants, alleging trespass and nuisance.
Held, the action must be dismissed.
1. The evidence did not establish failure by the Minister
of Transport and his officials to carry out their duty to
enforce the Air Regulations. Regina v. Commissioner of
Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B.
118, discussed.
2. The mere fact of flying over another person's property
is not a trespass. Lacroix v. The Queen [1954] Ex.C.R. 69,
referred to.
3. The evidence established that most planes taking off
and landing at the airport did not fly over plaintiffs' property
and did not create a nuisance.
ACTION.
COUNSEL:
J. D. Crane for plaintiffs.
B. F. Kennerly for Jan Lewandowski and
Lewmar Air Toronto Ltd.
L. R. Olsson, Q.C., and H. Erlichman for
the Honourable Donald C. Jamieson and the
Honourable Jean Marchand.
SOLICITORS:
Carrick, O'Connor, Coutts and Crane,
Toronto, for plaintiffs.
B. F. Kennerly, Toronto, for Jan Lewan-
dowski and Lewmar Air Toronto Ltd.
Deputy Attorney General of Canada for the
Honourable Donald C. Jamieson and the Hon
ourable Jean Marchand.
PRATTE J.—The plaintiffs and their children
live on a farm near a small airport, The Mark-
ham Airport, where the defendant Lewmar Air
Toronto Limited operates a flying school. The
defendant Jan Lewandowski is the owner of this
airport; he is also the president and principal
shareholder of Lewmar Air Toronto Limited.
The plaintiffs complain that small aircraft
belonging to Lewmar Air Toronto Limited and
other small aircraft using the facilities of the
airport constantly fly low over and near their
house and property. They assert Lewmar Air
Toronto Limited is trespassing over their prop
erty; they also say that Lewmar Air Toronto
Limited and Jan Lewandowski are creating a
nuisance. Finally, they allege that this situation
would not exist if the Minister of Transport had
not failed in his duty of enforcing the provisions
of the Aeronautics Act and of the Regulations
adopted thereunder. The plaintiffs, therefore,
claim to be entitled to the following relief:
(a) as against the Minister of Transport:
a mandamus directing him to carry out his
duties, and in particular to enforce the
provisions of the Aeronautics Act so that
the planes taking off and landing at The
Markham Airport are no longer flying over
the Harcourt residence and barn;'
(b) as against the defendant Jan Lewandow-
ski:
damages for participating in or condoning
the trespass and nuisance over the plain
tiffs' property and "an injunction enjoining
him from participating in [sic], supervising
or directing pilots to fly over or near the
Harcourt property";
(c) as against the defendant, Lewmar Air
Toronto Limited:
damages for trespass and nuisance and an
injunction enjoining it from operating air
craft over or near the Harcourt residence
and property.
For many years, Mr. Harcourt has been
employed as credit manager by a firm selling
building products. In addition, Mr. Harcourt has
been involved in farming. It seems that the
Harcourt family has always lived in the country,
outside Toronto. In 1965, Mr. Harcourt realized
that the district where they were then living was
being developed into a suburb. He decided to
move to a more rural area. In March 1965, he
bought a small farm at Markham. The Harcourt
family has lived there ever since . 2 Both Mr.
Harcourt and Mrs. Harcourt are strenuous
workers. In spite of the fact that Mr. Harcourt's
job as credit manager forced him to be frequent
ly away from home, they raised livestock and
cultivated, in addition to their farm, fields
rented from neighbours. In December 1967, Mr.
Harcourt had the misfortune of losing an arm. It
is an indication of his determination that, in
spite of his handicap he continued both his
farming and his work as a credit manager.
If one excepts a meaningless incident that
took place in 1967, the Harcourts were not
disturbed by aircraft before the fall of 1970.
This is not to say that the airport did not exist
before that time. This airport was first licensed
in 1965 and Lewmar Air Toronto Limited was
licensed to operate a flying school in 1966.
However, the airport is so situated that, during
all those years, it could be operated without the
Harcourts being in any way disturbed. The farm
of the plaintiffs is located on the eastern side of
the 9th Concession Road, at the corner of 18th
Avenue. The airport is approximately 2000 feet
to the west of the 9th Concession Road, approx
imately 600 feet further north than the Harcourt
property. As the runway is roughly perpendicu
lar to the 9th Concession Road, though 2000
feet west of it, aircraft taking off eastwards or
landing toward the west would not have to fly
over the Harcourt property. They would cross
over the 9th Concession Road at a point situat
ed approximately 600 feet north of the northern
limit of the Harcourt property.
Mr. Harcourt said that in the fall of 1970, he
noticed for the first time that many of the
aircraft approaching for landing toward the west
and taking off toward the east flew at a very
low altitude over his property and that of his
neighbour to the north, Mr. David Coutts. Mr.
Harcourt was annoyed and intrigued. He resent
ed the presence of these low-flying aircraft. He
wondered why they had suddenly started to fly
over and near his property instead of flying
further north. He waited for a few months. In
March 1971 the situation had not improved. He
then wrote a letter to the Department of Trans
port, in Toronto. A few days later he received
an answer reading as follows:
5151-322 (OCAR)
P.O. Box 7,
Toronto Dominion Centre,
King Street West,
Toronto 111, Ontario.
March 19, 1971.
Mr. H. A. Harcourt,
R.R. 1,
Stouffville, Ontario.
Dear Sir:
Your letter of March 15, 1971, is acknowledged. In it
you state that since your original letters almost four years
ago, you have had no complaints regarding low flying air
craft until the past three or four months. It would appear
that, according to your letter, you now suffer considerable
annoyance from low flying aircraft apparently landing or
taking-off at the Markham Airport.
Since you do not specifically mention dates, times or
identification of aircraft, there is little that this Ministry can
do with respect to prosecution for breaches of the Air
Regulations.
We have notified the Airport Management that there
have been complaints and informed them as to the general
nature of the complaints. Meanwhile it would be appreciated
if, in future correspondence on this subject, you could
provide us with more accurate details of the alleged viola
tions as we have suggested in the foregoing.
Your interest in this matter is appreciated and we will
endeavour to investigate each incident as carefully as possi
ble to ensure that you are not subjected to hazard or
annoyance from aircraft flying over your property.
Yours truly,
(signed) A. G. Carswell
for Regional Superintendent, Air
Regulations Ontario Region.
AGC:eb
During the following months, until the institu
tion of this action in October 1972, Mr. Har-
court met various officials of the Department of
Transport and wrote them some 25 letters. In
these letters, Mr. Harcourt asserted that it was
the duty of the Department to prevent aircraft
from flying over and near his property; he
explained that his property was so situated that
aircraft taking off or landing at the airport need
not fly over or near it; he insisted that these
overflights at low altitude endangered his safety
and that of his family; he alleged that these
overflights resulted from a change in the flight
circuit pattern; he suggested that this change in
the flight circuit could be attributed to the fact
that there was an error in the map of the airport
published in the Canada Air Pilot; he also said
that this change might be due to the fact that the
owner of the airport had an interest in the land
situated immediately to the east of the airport;
he contended, at times, that these overflights
were deliberately made in order to annoy him.
In many of his letters, Mr. Harcourt described
in detail specific instances of aircraft flying low
or dangerously over or near his property.
Mr. Harcourt also wrote numerous letters to a
Member of Parliament, Mr. Barnett J. Danson,
and to Mr. Allan Baker, a Special Assistant to
the Minister of Transport. In the fall of 1971,
Mr. Harcourt had consulted a lawyer, who hap
pened to be a very old friend of his, Mr. Donald
R. Nielson. After meeting officials of the
Department of Transport in Toronto, Mr. Niel-
son tried to settle Mr. Harcourt's problem by
contacting officials at a higher level. He got in
touch with Mr. Danson and, through him,
secured an appointment with Mr. Baker for both
himself and Mr. Harcourt. It was after this
meeting, which took place early in March 1972,
that Mr. Harcourt started to write to Mr.
Danson and Mr. Baker letters which were simi
lar to those addressed to the officials of the
Department in Toronto.
During this time, which preceded the institu
tion of this action, Mr. Harcourt seems to have
spent considerable time and energy collecting
evidence in support of his complaints. For cer
tain periods, Mr. Harcourt kept a diary in which
he, and other members of his family, recorded
instances when aircraft flew low or dangerously
over or near the property. For this purpose a
pad of paper was kept handy in the kitchen or
dining room so that any member of the family
could rapidly make a note of any incident
deserving to be remembered. Some excerpts of
these diaries were communicated to Mr. Danson
and to officials of the Department of Transport
in Toronto. From October 1971, Mr. Harcourt
was not content with observing aircraft from his
property. He made a habit of standing on the
9th Concession Road, approximately 600 feet
north of his property at a point immediately in
line with the runway. From there he observed
the flight circuit pattern. He noticed that while
he was standing there, all aircraft seemed to
avoid his property and to fly a proper circuit; as
soon as he left this observation point and
returned home, however, there was a resump
tion of the flights over his property. Mr. Har-
court also bought a movie camera in order to
take pictures.
The movies taken by Mr. and Mrs. Harcourt
were shown at the trial. In my view they do not
establish the plaintiffs' allegations of trespass,
nuisance and violation of the Air Regulations.
The same thing can be said of the many photo
graphs filed at the hearing.
Mr. Harcourt was dissatisfied with the atti
tude of the various officials of the Department
of Transport. He could not, however, accuse
them of having completely ignored his problem.
They had been at the Harcourt property; they
had been frequently in touch with Mr. Lewan-
dowski (whom they had found cooperative)
who, on their advice, had posted a notice at the
airport indicating that pilots should avoid flying
over the plaintiffs' property; they had made
observations, both from the ground and from
the air, of the flight circuit pattern at The Mark-
ham Airport and had concluded that it was safe
and normal. Moreover, in most cases where Mr.
Harcourt had reported what appeared to be a
violation of the regulations by an identified air
craft, they had written to the owner of the
aircraft and to its pilot; in all these cases, how
ever, the matter had been dropped after the
pilot had denied his guilt. Finally, all Mr. Har-
court's letters had been answered but always in
the same way: various officials had always
told him that they had not uncovered any viola
tion of the Air Regulations, and that should the
alleged nuisance persist in spite of their efforts,
he should consider the advisability of instituting
proceedings before the civil courts.
Mr. and Mrs. Harcourt finally heeded this
advice and started this action in October 1972.
The plaintiffs' claim for a mandamus against
the Minister raises problems that are foreign to
the claims against the two other defendants. I
intend to express my views on these problems
before considering the other claims of the
plaintiffs.
1. The claim for a mandamus against the Minis
ter of Transport.
The submissions made by counsel for the
plaintiffs may be summarized as follows:
(a) The Minister of Transport has the duty,
under section 3(a) of the Aeronautics Acta, to
enforce the various provisions of that Act and
of the Regulations adopted thereunder.
(b) In discharging that duty the Minister is
acting as an agent of the legislature and not as
a servant of the Crown. For this reason, in a
proper case, a mandamus lies against the
Minister to compel him to carry out that duty.
(c) The evidence shows that the Minister
failed in his duty to enforce the Air Regula
tions in that if the various complaints of Mr.
Harcourt had been investigated more thor
oughly, violations of the Air Regulations
would have been uncovered and should have
been punished.
(d) The plaintiffs have a substantial interest
in securing the performance by the Minister
of his duty to enforce the Air Regulations at
The Markham Airport.
I have reached the conclusion that not all
these submissions need be considered. The evi
dence does not warrant the conclusion that the
Minister of Transport and the officials acting
under him failed to carry out their duty to
enforce the Air Regulations.
The statute does not spell out the way in
which the Minister is to carry out his duty to
"supervise all matters connected with aeronau
tics". It does not impose on the Minister the
duty to make a thorough investigation of all the
violations of the Air Regulations that are report
ed to him. I have no doubt the statute implies
that in the carrying out of his duties the Minister
and officials acting under him will exercise a
fair amount of discretion. All infractions of the
Air Regulations are not equally serious; all
those who report an alleged violation are not
equally credible. In my view, the courts should
not interfere with this discretion. As was said by
the Master of the Rolls in Regina v. Commis
sioner of Police of the Metropolis, Ex parte
Blackburn ([1968] 2 Q.B. 118 at page 136):
Although the chief officers of police are answerable to the
law, there are many fields in which they have a discretion
with which the law will not interfere. For instance, it is for
the Commissioner of Police of the Metropolis, or the chief
constable, as the case may be, to decide in any particular
case whether inquiries should be pursued, or whether an
arrest should be made, or a prosecution brought. It must be
for him to decide on the disposition of his force and the
concentration of his resources on any particular crime or
area. No court can or should give him direction on such a
matter. He can also make policy decisions and give effect to
them as, for instance, was often done when prosecutions
were not brought for attempted suicide. But there are some
policy decisions with which, I think, the courts in a case can,
if necessary, interfere. Suppose a chief constable were to
issue a directive to his men that no person should be
prosecuted for stealing any goods less than £100 in value. I
should have thought that the court could countermand it. He
would be failing in his duty to enforce the law.
In the present case, there was not, as in the
Blackburn case, a decision made not to enforce
the statute or the Regulations. As soon as they
were informed of Mr. Harcourt's complaints,
the officials of the Department of Transport
conducted investigations that, in the circum
stances, they deemed appropriate. If they later
failed to lay any charge or to take any discipli
nary measures against the alleged violators of
the Regulations, it is because they honestly
believed that these alleged violations of the
Regulations had not taken place or could not be
proved. In acting in that manner, the Minister of
Transport and his officials carried out their
duties under the statute.
For these reasons, I am of the opinion that
the plaintiffs' application for a mandamus
against the Minister of Transport must fail.
2. The claims of the plaintiffs against Lewmar
Air Toronto Limited and Jan Lewandowski. _
The plaintiffs' action against those two
defendants is based on trespass and nuisance.
In so far as this is an action of trespass, I am
of the opinion that it cannot succeed. In my
view, the mere fact of flying low over another's
property is not a trespass. (See: Lacroix v. The
Queen, [1954] Ex.C.R. 69; also Salmond on
Torts, 15th ed. 1969, pp. 54 et seq.; Fleming,
The Law of Torts, 4th ed. 1971, pp. 44 et seq.)
Here the evidence does not show that aircraft
using The Markham Airport did anything more
than fly low over and near the plaintiffs' prop
erty. In these circumstances, the plaintiffs' only
remedy, if any, is in nuisance.
If this case were to be decided on the sole
evidence adduced by the plaintiffs, there is little
doubt that I would have to say that the pres
ence, over and near the plaintiffs' property, of
low-flying noisy small aircraft does constitute
an actionable nuisance.
Both Mr. and Mrs. Harcourt testified at
length. They produced their diaries and recount
ed in detail innumerable instances where air
craft using the facilities of The Markham Air
port had flown low over and near their property.
They said that the presence of these noisy air
craft had completely disturbed their lives.
During the weekends, it is no longer possible for
them to rest during the day. Very often the
noise of these aircraft awakes them early in the
morning. It has become impossible for them to
carry out their normal activities. Mr. Harcourt is
so disturbed by the noise and the sight of these
aircraft that he has given up working on the
farm. Mrs. Harcourt, who used to enjoy garden
ing, reading and knitting, can no longer do so.
The whole family, who used to live outdoors as
much as possible, has had to retreat within the
house. And even there, the noise generated by
low-flying aircraft is such that it is often im
possible to carry out a normal conversation.
Two of the Harcourt children, Norma and
Harold Jr., also testified. They both related
instances where they had witnessed aircraft
flying low over the property. Norma said that,
on occasion, planes were still flying at 10.30
p.m., making such a noise that she could neither
sleep nor study. She confirmed an observation
that her father had made and said that when she
left the house and walked north on the 9th
Concession Road, aircraft approaching the air
port seemed to follow her and fly further north.
Harold Jr. said that on Saturdays and Sundays
he was frequently awakened by the noise of
aircraft. He would also hear them after dark.
Like his father and sister, he has observed that
when he walks from the property northwards on
the 9th Concession Road, aircraft approaching
the airport seem to follow him. He said that
when he stood with his father on the 9th
Concession Road, at a point directly in line with
the runway, aircraft seemed to fly directly over
them.
Apart from these members of the Harcourt
family, the plaintiffs' main witnesses were: Mr.
Donald Roy Nielson, Mr. David Coutts, Mrs.
Susanne Coutts and Mr. Alfred Lightstone.
Mr. Nielson is the solicitor whom Mr. Har-
court first consulted in the fall of 1971. He told
of the various steps he had taken to convince
the authorities of the Department of Transport
to do something to abate the nuisance Mr. Har-
court was complaining of. He said that he had
visited the Harcourts and had noticed that at
times the noise of aircraft interfered with the
conversation. He also confirmed Mr. Harcourt's
observation that aircraft did not seem to fly
over the property when he was standing further
north, on the road, in line with the runway.
Mr. David Coutts is the neighbour of the
Harcourts. His property is situated immediately
to the north of theirs. He has been living there
since 1966. When he first moved there, he
noticed aircraft near his property. Now, how
ever, aircraft seem to fly closer to his residence.
Mr. Coutts related that on several occasions
aircraft had flown at not more than 100 feet or
125 feet over his house. He considers that these
low overflights are dangerous; they are a source
of concern to him. Most aircraft, however, says
he, fly at a much greater altitude.
Mrs. Susanne Coutts is the daughter-in-law of
Mr. David Coutts. For the past 4 years, she has
been living, with her husband and child, in the
basement of the Coutts' residence. She said that
she had often seen aircraft over their residence
and over the Harcourt property. These over-
flights seem to have increased in number within
the last 2 years. When she is in her apartment,
in the basement, she is not bothered by the
noise of aircraft; upstairs, however, aircraft are
heard and sometimes interfere with the conver
sation. She has never been awakened by the
noise of aircraft. She, like her father-in-law,
fears that these low overflights might present a
danger.
Mr. Alfred Lightstone is an engineer, special
izing in acoustics. A few months before the trial
he went to the Harcourt property. Using special
equipment he recorded on tape the sounds that
could be heard, on a Sunday afternoon, near the
Harcourt house. Part of that tape was played in
the courtroom during the trial. The sounds that I
then heard do not, in my view, constitute a
nuisance.
This was, briefly summarized, the evidence
adduced by the plaintiffs.
This evidence was contradicted by many of
the defendants' witnesses.
Six persons, residing nearer the airport than
the Harcourts, at places likely to be overflown
by aircraft taking off or landing at the airport,
testified that they were in no way bothered or
inconvenienced by the sight or the noise of
aircraft which constantly fly low over their
houses. Mr. and Mrs. Roy Harvey, who live
west of the airport at a distance of 600 feet
from the western end of the runway, testified to
that effect; so did Mr. and Mrs. Herbert
Hoover, who live east of the airport on the 9th
Concession Road, directly in line with the
runway; so did Mr. David Adams and Mr. and
Mrs. Donald R. Long, who live on the 9th
Concession Road, further north than the
Adams. All these witnesses said that aircraft
taking off and landing at the airport constantly
fly over their houses which are nearer the
runway than that of the Harcourts. They all said
that most of the time these small aircraft do not
make much noise.
I point out that Mr. Lewandowski had
instructed the pilots at the airport and the stu
dents to avoid flying over the Harcourt
property.
Counsel for the plaintiffs argued that no
weight should be attached to the evidence of the
persons residing in the neighbourhood. This evi
dence only establishes, said he, that there is not
much noise at the places where these witnesses
reside. This argument, in my view, is devoid of
merit. According to the evidence, most aircraft
taking off and landing at The Markham Airport
do not fly over the property of the plaintiffs but
fly further north, in line with the runway. I
cannot disregard the fact that, normally, aircraft
are more likely to fly over the residence of
these witnesses than over the plaintiffs' house;
and I cannot disregard either the evidence given
by these witnesses who said that most aircraft
did actually fly over or near their residences.
According to Mr. Harcourt himself, most air
craft approaching or leaving the airport fly, not
over his property, but over Mr. Coutts' property
and residence. In spite of that, when Mr. Coutts
testified, he did not say anything from which
one could infer that these aircraft created a
nuisance.
To the evidence of the plaintiffs, I prefer that
of the defendants. I think that the evidence
given by members of the Harcourt family is
most unreliable. Not because these people are
not honest, but because they have become so
obsessed with the presence of aircraft over their
property that they unduly exaggerate the minor
inconvenience that they suffer. If the plaintiffs
and their family were not oversensitive, they
would not, in my view, in any way be disturbed
or inconvenienced by what they now consider
to be a nuisance.
For these reasons, the plaintiffs' action is
dismissed with costs.
1 In their statement of claim, the plaintiffs also claimed
damages from the Minister of Transport. At the outset of
the trial, however, counsel for the plaintiffs stated that this
claim was abandoned. At the end of the trial, counsel
applied for leave to "revive" this claim for damages. This
application was dismissed.
2 In 1971, Mr. Harcourt conveyed to his wife a one-half
interest in that property.
3 R.S.C. 1970, c. A-3, s. 3(a) reads as follows:
3. It is the duty of the Minister
(a) to supervise all matters connected with aeronautics;
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.