by KRISTIAN GRAVENOR

When Westmount-born attorney Charles O'Brien pleads for permission to launch his noise-based class action suit at Quebec Superior Court September 12, he's keenly aware that verdicts have been wildly unpredictable concerning such cases.

In O'Brien's initiative, he'll be gunning for approval to proceed with a suit that would give $10,000 to every resident living near the Ville-Marie Expressway between Guy and the Turcot Yards between 1998 and 2001.

If O'Brien succeeds, the province and four construction firms would have to pay up to an estimated $20-million to those near the noise.

"In this case, they did extremely loud demolition and reconstruction work during the heat of the summer, particularly in 1999," O'Brien says. "They ran their machines night and day and weekends, using a sandblasting unit, a jet blaster, which essentially sounds like a jet engine. We have sound measurements exceeding 100 decibels. It was like living next to an airport. There are basic rules of nuisance set out in the Civil Code, and all they require is an unreasonable level of noise in a residential area."

Like all class action suits, O'Brien must first pass the authorization stage to proceed. "That's where you show what the guts of the case will be and the judge gives it a thumbs-up or down."

Last December, a judge gave much hope to such cases. Superior Court Judge Hélène Langlois ordered the province and municipality to pay a combined $6-million to 600 homes near the Petit Train du Nord, a 38-kilometre bike-and-snowmobile path near Mont Tremblant. The judge made no distinction between compensation for noise plaintiffs who moved to the site prior to the trails and those who arrived after. The Charest government subsequently issued a temporary moratorium on further snowmobile-noise lawsuits.

Yet three other comparable noise-based class actions have failed to even get authorization to proceed. Separate attempts by residents of Blainville and Outremont to sue the Canadian Pacific Railway were nixed, as was another by Dorval residents displeased with Trudeau Airport. All failed to impress judges enough to grant them the required initial authorization. Residents are appealing the refusals in all three cases.

Class action environmental suits have appeared in Quebec courts since the famous 1990 Comité de l'environnement de la Baie v. Alcan ruling by Justice Montgomery. "Since then, insurance companies and big defendants have been making every effort possible to diminish and marginalize the importance of that case," says attorney Michel Bélanger. "But the courts have never repudiated that decision. They've always agreed that it's good law."

Bélanger is pleading September 19 to try to overturn the May 2004 rejection of Outremont residents v. CPR. His is the first of the three rejected cases to appeal their refused authorization. Bélanger believes the upcoming verdict on whether he can proceed with his case will do much to determine the future of class action environmental lawsuits in Quebec.

"I have a lot of hopes of winning because all I'm asking is permission to debate the question," says Bélanger. "If the courts want to change environmental law, that's one thing. But at least let us discuss the questions."