Friedel v. Vavrek, 2012 ABQB 703

Court of Queen ’ s Bench of Alberta Citation: Friedel v. Vavrek, 2012 ABQB 703 Date: 20121115 Docket: 0703 12885 Registry: Edmonton Between: Lloyd Friedel and Sandra Friedel Plaintiffs - and - Vincent Vavrek, Tracey Vavrek and the City of Grande Prairie Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Sterling Sanderman _______________________________________________________ [ 1 ] The Friedels and the Vavreks are neighbours living beside one another in Grande Prairie, Alberta. The Vavreks ’ home is located east of the Friedels.

The Vavrek home is a two-storey structure. The Friedels live in a bungalow. Both have been built close to their respective property lines. [ 2 ] The Friedels believe that the design of the Vavrek home creates a problem for the enjoyment of their property. When the Vavreks built their home in 2000, the design called for a cantilevered roof to extend two feet outside the west wall on the main floor of their residence. This cantilevered roof is below the main roof situated above the second floor of their residence.

[ 3 ] The Friedels claim that this design creates a nuisance. They claim that snow accumulates on the main roof of the Vavreks ’ residence and when this snow is dislodged from this slate roof, it falls onto the cantilevered roof and is redirected over a fence onto the Friedels ’ property. When it lands on the Friedel yard it piles up on a walkway situated to the east of their residence making this route to the backyard impassible and blocks bathroom, dryer and furnace vents. [ 4 ] In 2007, the Friedels brought their concerns to the attention of the Vavreks.

In addition to the problem of the cascading snow, the Friedels voiced a concern about water overflowing the eaves trough drainage system on the Vavreks ’ home resulting in it running onto the Friedels ’ yard. [ 5 ] In 2008, this problem was satisfactorily addressed when Mr. Vavrek resized and changed some of the gutters and down spouts on his residence. This solved the water problem from the Friedels ’ perspective but left the snow problem outstanding. No solution was reached between the neighbours and the Friedels advance this lawsuit against the Vavreks. [ 6 ] They advance their claim in the tort of nuisance.

They claim an unreasonable interference with the use and enjoyment of their property. In addition to damages, the Friedels request injunctive relief against the Vavreks. They seek an order requiring the Vavreks to cut back the cantilevered roof on the main floor and to install heat tracing tape on the top roof to prevent snow build up on the west side of the Vavrek residence. [ 7 ] The question that has to be answered is “ Does a nuisance exist? ” If so, what remedy is available based on the evidence heard. [ 8 ] The Friedels and the Vavreks testified at this trial.

The evidence they gave in relation to the snow problem was largely consistent. Consequently, the credibility of the witnesses on the main issue did not require any assessment. Where credibility issues were engaged, they did so on collateral issues; thereby requiring no assessment. [ 9 ] The following facts have been established by the evidence. The Friedels bought a vacant lot in a developing area in Grande Prairie. The Vavrek home had already been built and was occupied. The Friedels started construction in 2003 and moved into the house in 2004.

Both residences had to comply with the applicable regulations in relation to development permits. Both residences were built close to the property line that runs on the east side of the Vavreks ’ residence and the west side of the Friedels. [ 10 ] Through the winters of 2004, 2005, and 2006 no discernable problem arose due to the configuration of the adjacent homes. A problem arose in March of 2007. During the early winter of 2006 and continuing into 2007, a significant amount of snow fell in Grande Prairie.

It accumulated on the main roof of the Vavrek home and on the cantilevered roof on the west side of the Vavrek residence. One night in March, a considerable amount of snow cascaded from the Vavreks ’ main roof, down onto the cantilevered roof and over the fence into the Friedels ’ yard. This was a large amount of snow that covered the bathroom, dryer and furnace vents located on the east side of the Friedel residence. The cascaded snow blocked passage along the east side of the Friedel residence.

The volume of snow that fell was sufficient to awaken residents in both houses when it hit the ground. [ 11 ] There is no doubt that the significant quantity of snow revealed in the pictures entered as exhibits by the Friedels was deposited in this fashion. Although no one saw it happen, the circumstantial evidence is overwhelming. [ 12 ] Mr. Friedel was able to chip away the ice and snow from around the vents to address any danger created but was not able to shovel the snow that had fallen into his yard because it had the quality of a frozen snow pack. [ 13 ] Mr. Friedel contacted Mr.

Vavrek to discuss this problem but without success. These two, apparently successful and intelligent men, professing to be imbued with a neighbourly spirit had no meaningful communications directed towards addressing the problem. Mr. Friedel has concerns that this may happen again and is concerned about the risk it presents to him, his property and anyone who may be on it. Mr. Vavrek believes that this occurrence was a rarity and only came about because of the unique weather patterns experienced in Grande Prairie in the winter of 2006-2007.

[14] In any event, the lack of effort in searching for a solution between the parties has resulted in this litigation. [15] It must be noted that since the Friedels moved into their completed home in 2004, this has been the only time that snow hasfallen onto their property from the Vavreks’ roof in this amount. In 2005, the Friedels noticed that a small amount of snow had enteredtheir yard in this fashion but the accumulation was minuscule and not worthy of mention to the Vavreks. [16] The Friedels are looking for a permanent solution and are anxious to avoid a recurrence of the problem.

The Vavreks do notaccept that there is a problem and point to the many trouble-free years as the norm. Mr. Vavrek insists that since the incident in March of2007, he has carefully monitored the build up of snow on his roof. He claims to have never had a concern about a repetition of this eventand if he had, he would have taken steps to prevent it.

He feels this should be sufficient to address the Friedels’ concerns. [17] A private nuisance is defined by Linden and Feldthusen in Canadian Tort Law, 9th ed (Lexis Nexis 2011) at page 578 as: Private nuisance may be defined as an unreasonable interference with the use and enjoyment of land. This may come about by physicaldamage to the land, interference with the exercise of an easement, or with mineral rights profit á prendre or other similar right, or injuryto the health, comfort or convenience of the occupier. In short, it is an environmental tort.

The use of the term “unreasonable” indicatesthat the interference must be such as would not be tolerated by the ordinary occupier. The court need not, therefore, be concerned withthe effect of the defendant’s conduct on any other members of the community, other than the occupier. Mr.

Justice La Forest hasexplained that actionable nuisances include “only those inconveniences that materially interfere with ordinary comfort as definedaccording to the standards held by those of plain and sober tastes”, that is, it shields only against “interferences to their enjoyment ofproperty that were unreasonable in the light of all the circumstances”. [18] In determining whether a nuisance exists it is important to consider the context in which the complaint is made.

Here theparties are next door neighbours living in a modern residential district comprised of upscale homes constructed close to their respectiveproperty lines. The dictum of Lord Wright in Sedleigh Denfield v. O’Callaghan et al., [1940] AC 880 at page 903 is often referred to inmaking this determination,. He said: A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not tobe interfered with.

It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps whatis reasonable according to the ordinary usages of mankind living in society, or more correctly, in a particular society. [19] In Meredith v. Peer, (ON CA), [1917] 35 D.L.R. 592 (Ont. C.A.), the finding of a nuisance was upheld bythe Ontario Court of Appeal with facts strikingly similar to the facts of this case.

They are set out in paragraphs 8 - 12 inclusive: 8 The parties are owners of adjoining properties in Toronto, upon which are erected dwelling houses. 9 The appellants’ house was erected first, and it is built close to the dividing line between the two properties; and, when therespondent’s house was afterwards erected, a space of about 2 feet 6 inches was left between the wall of it and the dividing line, whichwas used as a passage-way to the rear of the house. 10 There was nothing unusual in the mode of construction of the roof of the appellant’s house, but it was a slate roof and somewhatsteep, and the probable consequence of the falling of the snow upon it would be that it and any ice that might have formed there, owingto the melting of the snow, would slide from the roof and fall upon the respondent’s property. 11 There were during the month of February, 1915, several heavy snow-falls, and the snow and ice which had accumulated uponthe roof slid from the roof of the appellants’ house and caused the injury of which the respondent complains, which was the smashing ofhis sun-room and the blocking up of the passageway which led to the rear of his house.

A claim is also made for injuries caused byslates falling or being blown from the roof of the appellants’ house.

12 Neither of the parties appears to have apprehended danger from the accumulation of the snow on the roof of the appellants’house, and no steps were taken by the appellants to remove it or by the respondent to guard against injury to his property if it should fall. [20] The Ontario Court of Appeal held at paragraph 29: 29 After giving the question for decision my best consideration, my conclusion is, that the owner or occupant of a building, the roofof which is so constructed that from natural causes the snow or ice which falls or collects upon it will naturally and probably slide fromthe roof, is bound, apart from any obligation imposed upon him by a municipal by-law, to take all reasonable means to prevent the snowor ice from falling upon the adjoining property or an adjoining highway and causing damage to person or property there, and that that isthe extent of the obligation which the law imposes upon him. [21] No authority was provided by either party that detracts from this proposition.

The defendants argue that if a contextualapproach is followed, considerable allowance must be made for the complicated interactions of modern, urban society. They refer to theRestatement of the Law of Torts, as reproduced at paragraph 14 of Lakeview Garden Ltd. v. Regina (City) (2005), 2004 SKCA 110, 1 W.W.R. 651 (Sask. C.A.). Paragraph 14 states: 14 Fleming adds at p. 466 that to constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable.

Both Fleming and Linden, in his Canadian Tort Law, 7th ed. (Markham: Butterworths, 2001), quote with approval the Restatement ofLaw of Torts, Second (ALI, 1965-1979) §822, comment j: ... “Life in organised society and especially in populous communities in- volves an unavoidable clash of individual interests. Practicallyall human activities, unless carried on in a wilderness, interfere to some extent with others or involve some risk of interference, and theseinterferences range from trifling annoyances to serious harm.

It is an obvious truth that each individual in a community must put up witha certain amount of annoyance, inconvenience and interference, and must take a certain amount of risk in order that all may get ontogether. The very existence of organised society depends on the principle of ‘give and take, live and let live’, so that the law of torts doesnot attempt to impose liability or shift the loss in every case where one person’s conduct has some detrimental effect on another.

Liabilityis imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances.” [22] This modern approach to the imposition of liability arising from daily human interaction does not alter the fact that a nuisanceexists in this case. The plaintiffs have established this to the civil standard of proof based upon the approach mandated by the leadingtexts and the direction of Lord Wright in Sedleigh Denfield v. O’Callaghan et al.(supra). [23] Are the plaintiffs entitled to the injunctive relief they request? No.

This is not the type of case calling for this drasticdiscretionary relief. To compel the defendants to remove, replace or alter the cantilevered roof would be extreme having regard to thefrequency of a demonstrated concern and the cost of the requested relief. [24] During his testimony, Mr. Vavrek stressed repeatedly his commitment to his community and his neighbours. He referred tohis exercise of professional judgment on a daily basis through his employment and his awareness of the possibility that conditions couldbe repeated in the future that could create another hazardous situation.

His solution is to put trust in his judgment tempered by his desireto be a good neighbour and his willingness to take remedial action as required. [25] The fact that this matter has proceeded to this stage does not bode well for putting faith in his over-simplistic solution. Inorder to assist the parties to devise a practical response to the problem reoccurring, I make the following order. [26] Mr. Vavrek will establish an interest-bearing account of his choosing in the sum of $5,000.00.

If there is an accumulation ofsnow on either of his roofs that creates the danger of snow falling onto the Friedels’ property, he shall use these funds to pay to have thissnow removed as suggested by the expert he called at this trial. Any draw on this account will be replaced so its value does not fall below$5,000.00.

[ 27 ] When the Vavreks sell their home and relocate, their obligation to maintain the funds will cease and they will have the benefit of the funds. A sale of their residence imposes a duty to disclose the potential problem to any purchaser. [ 28 ] In addition to this remedial order, damages are adequate to deal with the nuisance revealed by the evidence. No aggravated damages are warranted. Special damages in the sum of $212.00 have been proven. This cost was incurred to repair eave troughs damaged on the Friedels ’ home by the cascading snow.

The plaintiffs are awarded general damages in the amount of $2,500.00 and are entitled to interest pursuant to the provisions of the Judgment Interest Act . Heard on the 2 nd and 3 rd days of October, 2012. Dated at the City of Edmonton, Alberta this 15 th day of November, 2012. Sterling Sanderman J.C.Q.B.A. Appearances: K.D. Wakefield, Q.C., Fraser Milner Casgrain LLP for the Plaintiffs William W. Barclay, Reynolds Mirth Richards & Farmer LLP for the Defendants Vincent Vavrek and Tracey Vavrek