Noise dispute anything but neighbourly

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This article was published 25/02/2010 (5698 days ago), so information in it may no longer be current.

Gilbert Fiola is living a nightmare.

The West Kildonan resident found himself in a dispute with a neighbour who, Fiola said, has been using the police to harass him over false excessive noise complaints.

"The noise bylaw is a legal way for someone to harass their neighbour," Fiola, 47, said. "They don’t need any proof and I can’t defend myself.

"The police have been to my house so many times all because the nut neighbour says my little clock radio is making too much noise."

Fiola has been to court three times since September — and each time the charge was stayed because the Crown attorney could not produce the summons the police issued for the excessive noise complaint.

But Fiola said Winnipeg police came to his house shortly after midnight on Nov. 27, charged him with mischief enjoyment of property, handcuffed him and placed him in custody for 16 hours — two hours at the PSB and another 14 hours at the Remand Centre.

"This has made me a wreck," Fiola said. "I never know when the police are going to come for me. I’m afraid to make any noise

"The minimum fine for breaking the noise bylaw is $50 for a first offence but I got thrown in jail for 16 hours and I was never found guilty of anything."

The origins of the neighbourly dispute have nothing to do with noise — it was drainage. Fiola moved into his home on Kilbride Avenue in May 2008 and discovered that water runoff from his neighbor’s home was flowing into his basement. Despite repeated requests to correct the situation, Fiola said the neighbour refused to take any action. In July 2009, Fiola dug a foot-deep trench the length of his property line to collect the water. The trapped water then began draining back into the neighbour’s yard and into the neighbour’s basement.

Fiola said that’s when the neighbour began calling the Winnipeg Police District 3 headquarters complaining about noise.

On Sept. 2, police issued Fiola his first noise ticket complaint.

"The bylaw is so vague, it can’t be defended," Fiola said. "Someone just has to make a complaint and the police can take action."

Fiola received three such tickets between Sept. 2 and Sept. 22. His copies of the summons show that the tickets incorrectly cited outdated bylaws and contained other errors. Each time, the charge was stayed by the Crown attorney.

To prepare for his upcoming trial on the mischief charge, Fiola obtained copies of police narratives — formally typed notes prepared by police officers.

The police narrative written on Nov. 17 — 10 days before Fiola’s arrest — show the police, acting on the complaints from Fiola’s neighbour, were fed up with what they said was Fiola’s behaviour and were determined to make him stop.

"It is to be noted that the writer has numerous dealing with both (the neighbour) and FIOLA regarding their neighbor dispute," writes the Winnipeg Police officer. "FIOLA refused to comply with any police direction and as a result, police are prepared to lock FIOLA up at the PRC (Provincial Remand Centre) to prevent the continuation of the offence."

The police officer’s narrative states police had responded 29 times to the neighbour’s complaint of excessive noise. The narrative also states inaccurately that "there have (been) numerous bylaw tickets issued to FIOLA."

The neighbour described Fiola as a con man who has made his life miserable over the past year. He declined to comment further, adding he will be testifying against Fiola at his mischief trial.

A resident who knows both men said they used to be friends. "I can understand how it can be a pretty rough situation when you piss off your neighbour and you’re living so close."

Fiola said he’s been offered mediation with his neighbour but he’s rejected it because he believes he’s been victimized.

aldo.santin@freepress.mb.ca

What the bylaw says

The Winnipeg Police Service handles most residential noise complaints. Patrol Sgt. Bob Keber, who heads one of the WPS community support units, says the noise section of the Neighbourhoold Liveability Bylaw is subjective but adds he advises his officers to hear the noise themselves to determine the merits of the complaint.

 

Neighbourhood Liveability Bylaw Part 5 — Noise Control

Section 67 (1) "A person must not make or continue, or cause to be made…. (a) an unreasonably loud, unnecessary or excessive noise or sound; (b) a noise or sound which unreasonably disturbs, injures or endangers the comfort, repose, health, peace or safety of a reasonable individual or ordinary sensitivity; or (c) a noise or sound which is so harsh, prolonged, unnatural or unusual in time and place so as to occasion unreasonable discomfort to any individual or so as to detrimentally affect resident properties or places of business.

67 (2) In determining whether a noise or sound has been made which contravenes subsection (1), the following factors, among others, may be taken into account:

(a) the time of day and day of week on which the noise or sound was made;

(b) the nature and use of the area from which the noise or sound emanates and the nature and use of the area at which it is received;

(c) the nature of the event or activity producing the noise or sound;

(d) the volume, duration and nature of the sound, including whether it is recurrent, intermittent or constant; and

(e) the ‘A’ weighted sound level of the noise or sound and the ambient sound level, if measured, but not ‘B,’ ‘C,’ or ‘linear’ weighted sound levels.