Van Insberghe v Brassard, 2011 ABQB 490

Court of Queen ’ s Bench of Alberta Citation: Van Insberghe v Brassard, 2011 ABQB 490 Date: 20110802 Docket: 1103 10212 Registry: Edmonton Between: John Van Insberghe and Emily McNamara by Her Litigation Representative John Van Insberghe Applicants - and - Robert Brassard Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] I last dealt with this matter in written Reasons dated July 5, 2011 now reported at 2011 ABQB 429 at which time I did not accept the Respondent ’ s argument that there was no case to answer, and I ordered the parties to file their Affidavit materials. The Respondent Mr. Brassard, his wife, and a neighbour along with Mr. Van Insberghe have now all filed their Affidavits with the Court. [ 2 ] This is an application by Mr.

Van Insberghe on his own behalf, as well as on behalf of his 15 year old daughter for a permanent Restraining Order against Mr. Brassard. The Applicant Plaintiff issued a Statement of Claim filed on June 27, 2011 in which amongst other things he sought a Restraining Order enjoining and restricting Mr. Brassard the Respondent Defendant from being within 50 metres of his residence, and restraining him from contacting the Plaintiff either directly or indirectly.

[ 3 ] In response to the allegations that the Respondent has been intimidating and threatening to Mr. Van Insberghe and his daughter, the three Affidavits filed by Mr. Brassard, his wife, and a neighbour depose that Mr. Van Insberge has demonstrated a pattern of inappropriate, bizarre, and offensive behaviour. The Affidavits generally deny any threat, harassment, embarrassment or humiliation suffered by either Mr. Van Insberghe or his daughter. [ 4 ] Mr.

Van Insberghe in his Affidavit in response dated July 29, 2011to the Respondent ’ s Affidvit points out that he is a retired locomotive engineer from Canadian National Railways, and that Mr. Brassard told him that he is a supervisor with EPCOR. Mr. Van Insberghe questions in his Affidavit a number of Mr. Brassards assertions made against him. [ 5 ] The wooden markers that were placed on the property line between these two parties was placed according to Mr. Van Insberghe not by him, but by Stantec Geomatics ( “ Stantec ” ) as Mr. Van Insberghe had had his property surveyed by them in May 2010. Mr.

Brassard was advised by Mr. Van Insberghe that he had a surveryor ’ s real property report from Stantec that showed that the entire fence that was on the property line at the time was wholly within his property, and that it was his intention to tear down the improperly located fence, which was also too short in height and did not enclose Mr. Van Insberghe ’ s backyard. Mr. Van Insberghe claims that he explained to Mr. Brassard that if there was any uncertainty concerning the legitimacy of the property line claim that he was making that Mr. Brassard could contact Stantec directly, or that Mr.

Brassard could have the property surveyed himself. [ 6 ] With respect to the removal of the steel rod, Mr. Van Insberghe deposes that he pounded a 30 inch long steel rod into the ground on the property just slightly ahead of the spot where Stantec ’ s first wooden marker had been broken off on May 8, 2011 to prevent this from occurring again. Mr. Van Insberghe claims that Mr. Brassard at this point came out of his house in a brisk manner and tore the steel rod out of the ground before Mr. Van Insberghe could finish pounding the steel rod into the depth that he wanted. Mr.

Brassard is then alleged to have gotten into an argument with Mr. Van Insberghe during which Mr. Brassard tore the steel rod out of the ground, scratched the sidewalk with the rod warning that the steel rod was a safety hazard, and then throwing the steel rod onto the dirt in Mr. Van Insberghe ’ s front yard. Mr.

Van Insberghe says that he was only trying to preserve the mark on the ground that he had paid a large sum of money to obtain the proper property line location, and that the steel rod protruding from the ground was a minimal safety hazard in comparison to children playing on the road in the crescent without a properly constructed fence. Mr. Van Insberghe deposes that he reported this incident to the RCMP but that no charges were laid against Mr. Brassard. [ 7 ] With respect to May 24, 2011, Mr.

Van Insberghe deposes that a back wooden marker had been tampered with as it was turned to face a different direction, and RCMP had to be called again to accompany Mr. Van Insberghe to retrieve the wooden marker from Mr. Brassard ’ s property. [ 8 ] Mr. Van Insberghe reiterates that his 15 year old daughter was harassed, embarrassed and humiliated by Mr. Brassard on June 19, 2011 when she was pumping out rain water with an electric pump that collects on Mr. Van Insberghe ’ s front yard due to the topography of the land. It is alleged that Mr.

Brassard suggested that the daughter was cleaning out the toilet (there was a portable pottie toilet located in the front yard of Mr. Van Insberghe ’ s house during this construction phase), even though Mr. Brassard allegedly knew that the toilet was serviced on a regular basis, and that raw sewage cannot be pumped into the street or gutter. As his house was in the final stages of construction, the portable toilet facility also had a hand sanitizer provided for the workers who were completing his house. Mr.

Van Insberghe claims that RCMP visited him as a result of complaints about the presence of his portable pottie toilet in April 2011, but Mrs. Brassard denied that it was them who complained. Conclusion [ 9 ] There is some common ground in the various conflicting Affidavits. The Applicant Plaintiffs apparently had been doing quite a bit of work on their new home located next to the Respondent Defendant. A dispute then arises on Mother ’ s Day over the location of the Respondent ’ s fence allegedly built over the Respondent ’ s property line completely onto the Applicant ’ s property.

A series of arguments and disputes arise regarding a steel post that is apparently put into the front lawn of the Respondent ’ s property which indicates where the fence should be located. Some of the Applicant ’ s fence markers are then allegedly stolen by the Respondent over the Victoria Day long weekend, and RCMP are called.

RCMP attend at the residences of both the Applicant and the Respondent, but no further action is taken by police. [ 10 ] Eventually the Applicant removes the alleged offending fence, and construction is now basically complete on the Applicant ’ s residence, which is situated next door to the Respondent.

[ 11 ] Both parties acknowledge having heated discussions over these various incidents, and the Applicant acknowledges having made some profane comments and threatening gestures to the Respondent, but points out that those comments and gestures may have been appropriate under the difficult circumstances that the Respondent was creating for he and his daughter. [ 12 ] Beyond these common grounds, it is difficult to reconcile some key aspects of the disputes on the Affidavit evidence between these parties save and accept that these parties must be restrained at least in the interim from having any direct contact with each other, to the extent that is possible in a next door neighbour situation. [ 13 ] I have concluded that there will have to be a trial of this issue with viva voce evidence.

In the interim until that trial can be conducted, there will be mutual Restraining Orders imposed on all of the parties. The parties and their counsel can provide me with their draft mutual Restraining Orders which hopefully will take into account the complication we are facing here in dealing with next door neighbours. It is not the Court ’ s intention to set up any party for failure, or to prohibit incidental contact between next door neighbours.

Rather the goal of the Court is to separate these parties to the extent necessary to prevent them from engaging in further heated arguments and disputes as between them. Counsel and the parties are directed to have their written proposals for the mutual Restraining Orders to my offices no later than the end of August, 2011. Heard on the 30 th day of June, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of August, 2011. Donald Lee J.C.Q.B.A. Appearances: John Van Insberghe Appeared on His Own Behalf Dino Bottos Pringle MacDonald & Bottos for the Respondent