Courting trouble in uncommon ways

Younger readers may be shocked to learn that in bygone days the sight of a tabby in your neighbour's window was something you might have to put up with even if you really hated cats. If, on the other hand, Foo-foo the Siamese Slasher made a persistently intolerable noise, regularly demolished your flower beds or hurled itself shrieking at your face and carved your flesh, you had legal remedies from restraining orders to damages. But that was in the dark ages, when the judgment of a reasonable man as to what constituted an unreasonable nuisance was all that kept the social peace. Today we have sociologists, child psychologists and grief counsellors. And, in Ottawa, cat licences. True, only about 1,500 of some 100,000 cats were registered by the April 30 deadline. But fear not. The Citizen says "city officials are promising not to impose $100 fines or to lock up the remaining 98,500 cats, as outlined under a new animal bylaw. And they say they're not discouraged by the 1.5-per-cent compliance rate."

I'm not sure what would discourage them: 1.38 per cent? 0.74? Still, if a 1,100-per-cent cost overrun doesn't discourage gun bureaucrats, I'm sure the catocrats will hang tough as well.

Speaking of wells, Kelly Egan wrote in Monday's Citizen that Ontario's new Safe Drinking Water Act says anyone serving well water to customers or guests must install a treatment system, hire a professional engineer to oversee the treatment plan, then train a staff member to run it. Again, fear not. There's a small chance the $20,000 to $30,000 price tag will not bankrupt every small rural business in the province, shut down every church basement fundraiser or entirely abolish the archaic habit of offering visitors a drink of bubonic plague or, as the rustics refer to it, tap water.

You might be wondering, as with cat licences, exactly what problem this law was designed to solve. The restaurants, church basements and RV parks of rural Ontario were not clogged with corpses displaying that telltale dampness around the mouth. In fact, I always thought people were pretty reluctant to kill neighbours or customers with acts of hospitality, and that customers got pretty twitchy about inns, amusement parks or campgrounds with high mortality rates and they, or their heirs and assigns, sued for negligence. (As for Walkerton, it had a treatment plant, engineers and government oversight.) But there I go, gibbering about common law driven by common sense as if I lived in Mercia, Canada before Trudeau or some such dystopia.

For the problem in both cases was the glaring lack of positive, rational administrative law to control every aspect of our shabby lives. Which is also why we now have laws telling us we don't mind living beside factory farms even if we think we do.

As Elizabeth Brubaker noted in the National Post, "For centuries, courts resolved conflicts between farmers and their neighbours by applying the fundamental principle, 'use your own property so as not to harm another's.'... Courts rarely enjoined minor or temporary irritants or those offensive only to unusually sensitive people. And they tended to permit activities that they considered reasonable - especially those in keeping with the character of the neighbourhood." Not including smells that would drive ticks off a badger.

In recent decades, however, provincial governments have passed laws like New Brunswick's 1985 Agricultural Operation Practices Act, saying as long as an industrial farm doesn't violate statute laws on land use, health or the environment, neighbours can't sue over stench, noise or dust. Or its 2003 version adding vibrations, light, smoke etc. to the "you'll just have to put up with it, you're not Adrienne Clarkson" list. Lest the churls mess things up in their traditional peasant manner. (Which is also why we can't have citizens counting each other and making a list of eligible voters for each election, and have substituted a centralized, computerized, rationalized permanent voters' list that is, one gathers from Tuesday's newspapers, only slightly less precise than the gun registry.)

The "reasonable man" or, today, reasonable person might be hard to find plunked in front of a TV watching reality shows less plausible than a cat licence. As for the Clapham omnibus where British law traditionally put him, those double-deckers are being phased out as unscientific modes for the public transportation of human units. But I'd look in either place before I'd try Ottawa City Hall.

Having people live their own lives provided they don't inflict on their neighbours what reasonable neighbours would, judging by the long historical record, regard as a nuisance is horribly unscientific, I admit. But it is not new. Indeed, it prevailed before we had pig farms next door, tags on our cats and $25,000 bills to offer the neighbours a glass of water.

You know. In the bad old days.

[First published in the Ottawa Citizen]

ColumnsJohn Robson