Summer Village of West Cove v Duiker, 2011 ABQB 703

Court of Queen ’ s Bench of Alberta Citation: Summer Village of West Cove v Duiker, 2011 ABQB 703 Date: 20111116 Docket: 1103 09103 Registry: Edmonton Between: Summer Village of West Cove Applicant - and - Barend Duiker and Darlene Joy Duiker Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Summer Village of West Cove commenced an action against the Respondents for their failure to comply with a Demand Notices issued in 2010.

A Certificate of Lis Pendens was filed on June 9, 2011 against the Respondents’ property and an Affidavit sworn on June 8, 2011 by the Municipal Administrator deposing that the Respondents had constructed a fence parallel to the south boundary of the said lands, but had located the fence on the Municipal road right of way.

The Respondents subsequently relocated the fence, but it continued to be located on the Municipal road right of way and the Municipal reserve property to the east. [ 2 ] In response to the Municipal Administrator’s demands, the Duikers provided a letter dated September 9, 2010 indicating that the fence on their property had been put up on May 21, 2009, approximately a year before the Demand Notice stating that the fence was on the Summer Village’s land by approximately 14 feet. No explanation was ever provided why it took approximately a year after the fence was put up to identify the encroachment.

[ 3 ] In August 2010 the fence was moved approximately 14 feet, but there was a very old spruce tree next to the property pin that the Duikers did not wish to damage.

The Duikers say in their letter of September 9, 2010 that they placed the fence as close as they could to the property pin having regard to the tree stumps and the trees that were in the way. [ 4 ] The Duikers point out in their September 9, 2010 letter that some of the tree stumps remain from Fortis Alberta trees that were cut down on the property five years previous. [ 5 ] The Duikers then proposed to obtain a fence easement for their property from the Summer Village, and agreed to pay for the costs for the creation of the easement if it were granted. [ 6 ] On October 22, 2010 the Summer Village of West Cove indicated to the Duikers that they were prepared to grant an easement for the property allowing their fence to encroach onto Municipal lands.

The fee for completing all the necessary requirements and documentation for the easement was set at $1,500.

The offer for the easement was open until November 15, 2010, following which if payment was not received, the Summer Village could withdraw its offer and revert back to the Demand Letter of September 1, 2010 that the fence be removed from Municipal lands. [ 7 ] On November 18, 2010 the Summer Village wrote again to the Duikers indicating that the time had passed for them to have the opportunity to acquire the easement, and that the Summer Village’s offer of the easement agreement was withdrawn. [ 8 ] Legal counsel for the Summer Village then provided a registered letter to the Duikers dated March 8, 2011 outlining their alleged failure to remove the illegal six foot green fence from the length of the southern property line and a portion of their east property line, and requiring on behalf of the Summer Village the immediate removal of the green fence located on Municipal lands.

The Duikers were specifically warned that the Summer Village’s commencement of legal action to obtain a Court Order compelling them to do so could result in the requirement that the Duikers pay legal costs incurred in enforcing the Demand Notice. [ 9 ] When this matter was heard by me on September 23, 2011 it was clear that some work had been done by the Duikers, but that work was not completed by Mr. Duiker’s own admission in Court.

At that time the placement of black dirt and the levelling of the disturbed area had not been completed. [ 10 ] The Court then decided to allow the Duikers another opportunity to complete their work. [ 11 ] It is now common ground as between both parties that the outstanding work has been completed after the Court application on September 23, 2011. The black dirt that was required to be replaced and the levelling of the area have now been completed, such that the requirement to comply has now been satisfied.

Conclusion [ 12 ] The only remaining issue is the current request by the Summer Village of West Cove for $1,000 in costs given the requirement of the Summer Village to commence action in order to obtain compliance. Counsel points out that the application was originally returnable before the Court on July 12, 2011, at which time at Mr. Duiker’s request that application was adjourned until August 9, 2011, and a further adjournment was agreed to September 9, 2011. Mr.

Duiker than apparently requested a further adjournment until September 23, 2011 when the matter was heard by me. [ 13 ] The Summer Village was prepared to grant an easement to Mr. Duiker for the fence encroachment for a limited period of time, however Mr. Duiker declined to accept that offer of easement because he was not prepared to pay the $1,500 fee proposed. [ 14 ] Mr. Duiker points out that he recently received a $950 survey charge dated October 24, 2011 which the Council has billed

him for. The Summer Village submits that the survey had provided clear evidence that the lands were not in compliance with the first Order issued and therefore are proper costs to be added to the Duiker’s tax roll by the Municipality in enforcing the second Order dated September 1, 2010, although the Summer Village is not seeking leave from the Court presently with respect to those survey costs. [ 15 ] In all of the circumstances I conclude that it is arguable that $1,000 in costs is an appropriate award in this case under Column 1 of

Schedule C of the Rules of Court given that Mr. Duiker should contribute in part to the costs of the legal actions that were required to be taken in order to obtain compliance with the Order issued by the Summer Village. The Summer Village agreed to several adjournments of the application in order to obtain compliance, and compliance was not fully obtained until following the Court application of September 23, 2011. The rate payors of the Summer Village would otherwise have to bear the total cost without contribution from Mr. Duiker, although I do understand that Mr.

Duiker appears to have some legitimate concerns and problems with the manner that the Summer Village has conducted itself. [ 16 ] I will allow the Duikers however until December 15, 2011 to present their written arguments as to costs since the matter was not argued when the parties were last before me on September 23, 2011, when the ultimate outcome was still in doubt. Heard on the 23 rd day of September, 2011. Dated at the City of Edmonton, Alberta this 16 th day of November, 2011. Donald Lee J.C.Q.B.A. Appearances: Sheila C. McNaughtan, Q.C.

Reynolds Mirth richards & Farmer LLP for the Applicant Barend Duiker and Darlene Joy Duiker Appeared on Their Own Behalf