Brodniansky v Bruun, 2017 ABQB 360

Court of Queen’s Bench of Alberta Citation: Brodniansky v Bruun, 2017 ABQB 360 Date: 20170605 Docket: 1212 000348 Registry: Wetaskiwin Between: Alexander Brodniansky and Margaret Brodniansky Plaintiffs - and - Tim Bruun and Tim Bruun Operating as Hytek AG Solutions Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.T. Moreau _______________________________________________________

Table of Contents I. Introduction . 3 II. Overview of the Evidence . 3 III. Dead Trees Resulting from the Overspray . 5 The Expert Witness called by the Plaintiffs . 5 The Expert Witness called by the Defendants . 6 IV. Surviving but Damaged Trees . 8 V. The Impact of the Overspray on the Market Value of the Plaintiffs’ property . 15 VI. Appropriate Approach to Calculating Damages . 16 Clearing and hauling away dead trees and trees in very poor condition . 26 Supplying and planting trees . 26 Maintaining the newly planted trees for two seasons . 27 VIII. Damages for Loss of Amenities . 28 IX.

Special Damages . 28 X. Conclusion . 29 I. Introduction [ 1 ] The Defendants admitted liability for having oversprayed Roundup, a broad-spectrum herbicide, which resulted in damage to the spruce tree shelterbelt on the Plaintiffs’ farm property, and the parties proceeded to trial to quantify the Plaintiffs’ resulting damages. II. Overview of the Evidence [ 2 ] The Plaintiffs, Alexander and Margaret Brodniansky, aged 70 and 63 respectively, have been married for 42 years. In 1990, they purchased a rundown 80 acre farm property located between Calmar and Thorsby, Alberta.

They made substantial improvements to the property, removing and replacing buildings and replacing existing trees with a carefully staged planting of new trees, including a new shelterbelt. The farm property, the Plaintiffs’ major asset, was in pristine condition when they listed it for sale in May 2011 as the photographs predating the overspray confirmed. [ 3 ] Approximately 20 years ago, Mr. Brodniansky designed a spruce tree shelterbelt and, over the next 13 years, removed mature poplar trees from the west, north and east side of the farm and planted new spruce trees. He and Mrs.

Brodniansky collected young spruce trees from neighbouring pasturelands and, over time, planted the trees in their garden, then transplanted them to other areas of their property. The shelterbelt they planted starting in 1997 consisted of three rows of young trees along the west side, two rows along the north side and two rows along the east side of their property. Mr.

Brodniansky meticulously dug out 50 to 75 trees at a time in the original shelterbelt, rototilled the planting area, applied manure and kept the area as summer fallow for a couple of years before planting each new tree by hand, fertilizing and watering the new plantings using water collected from the eavestroughs of a shop on the property or from a nearby creek. Mr.

Brodniansky continued watering the new trees for a year or two, rototilled the soil surrounding the trees once or twice per month in the first five years after planting, weeded under the trees by hand and cut the grass in the shelterbelt once or twice per month during growing season. [ 4 ] A diagram prepared by Mrs. Brodniansky in 2014 (the “Plaintiffs’ Diagram”) reflected the lay-out of the shelter belt and the

location of each tree planted within it. While the Plaintiffs measured each row in the shelterbelt, they did not measure tree heights but relied on their own estimates of average heights. [ 5 ] I accept the evidence of Mrs. Brodniansky that she and Mr. Brodniansky planted a total of 322 trees.

Counsel for the Plaintiff set out the date, location and number of trees planted in the table reproduced below: Table 1 Date Row from Tab C-1 No. of Trees 1997 West Middle 2 1998 West Middle 21 1998 West Outside 18 1999 West Middle 27 1999 North Inside (west of the Field Break) 37 1999 North Outside (west of the Field Break) 37 2004 West Inside 50 2007 West Outside 18 2007 North Inside (east of the Field Break) 17 2007 North Outside (east of the Field Break) 17 2007 East Inside 39 2007 East Outside 39 Total 322 [ 6 ] On May 9, 2011, the Plaintiffs listed their property for sale for $975,000. Mrs.

Brodniansky acknowledged that the feature sheet for the listing made no mention of the shelterbelt. No offers were received on their property before the overspray on June 24, 2011. [ 7 ] On that date, as a result of the Defendants spraying adjacent lands with Roundup WeatherMax (glyphosate), a non-selective broad-spectrum herbicide used to control perennial weeds, woody brush and trees, damage was caused to all sides of the Plaintiffs’ shelterbelt.

A number of trees in the shelterbelt that had been flourishing in soil that had received much rainfall in 2010, turned brown, shrivelled and many of them died, as depicted in photographs of the shelterbelt taken by Mrs. Brodniansky in August 2011. These photos depicted burnt tree tops, brown drooping and twisted boughs, and dead trees. [ 8 ] Given the visible damaged caused by the overspray as recorded in those post-overspray photos, the Plaintiffs took their property off the market.

The Plaintiffs have removed several dead trees and attempted to restore the surviving trees to health but have not replaced any of the dead or damaged trees. [ 9 ] Mrs. Brodniansky said the location of their farm makes the shelterbelt necessary because it acts as a windbreak against strong west winds. The shelterbelt also holds the soil. Having reviewed the aerial and ground photos taken before the overspray, I can see that the shelterbelt also provided attractive natural boundaries and privacy to the Brodniansky’s farm. [ 10 ] The Plaintiffs took a number of steps to deal with the damage since the overspray.

They obtained a chemical analysis of the damaged trees from the County of Leduc at a cost of $369.60. [ 11 ] Further, each year since the overspray, Mr. Brodniansky has spent hours watering the trees and fertilized them every week or two in an attempt to save them. He testified that in the summer of 2012 he was doing some machining work, but he put that work aside to work on restoring the damaged trees. Mrs. Brodniansky prepared a report documenting the work performed by Mr. Brodniansky in 2012.

I accept this document as accurately reflecting the time he spent pruning trees to remove all wilted and brown new growth. I also accept his testimony that he was required to perform a large amount of pruning that would not otherwise have been necessary had the overspray not occurred. [ 12 ] To prune higher tree levels, he borrowed a man-lift from a friend who operated a construction firm on the understanding that he would pay him for its use from funds recovered in the litigation. He recorded 80 hours of man-lift use in 2012. [ 13 ] When the man lift was not available, Mr.

Brodniansky also used a basket attached to a backhoe operated by Mrs. Brodniansky for tree-pruning. He has continued each year since the overspray incident to use his backhoe and basket for regular tree pruning within the shelterbelt. [ 14 ] In addition, Mr. Brodniansky cut down and removed 87 dead trees in August 2012, most of them planted along the East side of the property and a few along the West side. He then removed the stumps with his backhoe, mulched the ground, and removed the tree roots.

He prepared an invoice for work he performed in 2012 totalling $13,470. [ 15 ] On March 30, 2012, Arbor Man Tree Care provided the Plaintiffs with an estimate of $16,800 for pulling out the dead and damaged trees, noted at the time to be 270 in number. The Plaintiffs also obtained two estimates for replacing the trees, one for $167,638 and a second for $171,097.50.

The second estimate provided for an additional $10,400 cost for watering over the first four weeks after planting. [ 16 ] At trial, the Plaintiffs’ evidence was that the number of dead or very damaged trees requiring replacement was reduced to 240 (169 dead or missing, 71 very poor trees). The Defendants, however, took the position that only 142 trees died and only those trees require replacement. The Defendants also take issue with the Plaintiffs’ method of calculating their damages. III. Dead Trees Resulting from the Overspray The Expert Witness called by the Plaintiffs

[ 17 ] Milton Davies, an arborist retained by the Plaintiffs, was qualified to give expert evidence in urban forestry, shelterbelts, tree identification, tree insect identification, spruce tree growth, condition of trees and their valuation, sourcing replacement trees for damaged or removed trees, and tree health care. [ 18 ] Mr. Davies holds a Bachelor’s degree and graduate diploma in education and a Bachelor of Science degree in forestry.

He obtained an International Society of Arboriculture (ISA) Certified Arborist designation in 1996 and a Registered Professional Forester designation in 2004 from the Alberta College of Registered Professional Foresters. He has been a member of the College since 2003, admission to which at the time was based on two years’ experience in urban forestry and the successful completion of a written examination. [ 19 ] Mr. Davies held an Applied Science Technologist (Forestry) designation from the Alberta Society of Engineering Technologists from 1998 to 2007.

He has also been a member of American Society of Consulting Arborists since 2000. To qualify for membership at the time required a degree plus at least five years in the field along with letters of reference. He has been a member of the Association of Science and Engineering Technology Professionals of Alberta since 1998. To qualify for membership at the time required at least a two-year trade school diploma, references and a successful written examination. He obtained his Certified Engineering Technologist designation from the Association in 2007.

He was a Council member and Competence Committee Chair for the Association from 2012 to 2014 and its Vice President and Chair of Finance in 2014-15. He received his Tree Risk Assessment Qualification (TRAQ) from ISA in 2014. [ 20 ] Mr. Davies was employed as a registered professional forester by the City of Edmonton for 21 years and, since 2008, has been a consulting professional arborist as the principal of Arbor-Pro Tree Consulting Ltd. in the assessment of trees in an urban environment.

He consulted on shelterbelts brought into City of Edmonton land inventory and rural properties brought into Beaumont’s land inventory. He has consulted in the rural context in the geographic area extending from Cardston to Ft. McMurray. He has been qualified as an expert witness in Provincial Court on three occasions, in 2007, 2008 and 2011. [ 21 ] Mr. Davies inspected the Plaintiffs’ shelterbelt on June 6, 2014 and prepared an expert report dated March 23, 2015 and a reply to the Defendants’ expert witness report dated July 8, 2016. Mr.

Davies spent about four hours with the Plaintiffs on June 6, 2014, examining all the trees in the shelterbelt, recording his observations in a notebook, and taking several photos. He did not return to the property after his 2014 site inspection. [ 22 ] Mr. Davies explained that glyphosate is a broad-spectrum herbicide used to control weeds, woody brush, and trees. It is water soluble and moves through the plant causing wilting and browning of above-ground growth and disruption and deterioration of underground growth. The herbicide stops the regrowth of the plant’s root system.

Plant stems become twisted and curled. Needles continue to be held tightly to the tree branch or stem even though dead, whereas normally needles fall off every three to five years. In this case, glysophate was applied during a period of vigorous tree growth. [ 23 ] Mr. Davies observed that the Plaintiffs’ shelterbelt had been in place between four and 13 years and a mature shelterbelt requires at least 25 years of growth. When he conducted his 2014 site inspection, the entire east side of the shelterbelt had been removed following the overspray.

Some trees had also been removed from the north and west sides and he noted these as missing if he observed a tree stump or depression. He did not measure tree heights during his site inspection, relying on the tree heights noted in the Plaintiffs’ Diagram provided to him as he left the site. Table 1 (p 6) of his report categorized trees as good, dead, very poor, or missing. Table II (p 7) of his report indicated the size, number and location of spruce trees requiring replacement. [ 24 ] In his report, Mr.

Davies stated that 69 trees had died in addition to the 87 trees that the Plaintiffs advised had been removed. He did not include some trees Mrs. Brodniansky testified had been removed from the northeast side, which caused him to adjust his count of dead or missing trees to 169. The Expert Witness called by the Defendants [ 25 ] Gerard Fournier, the Defendants’ expert witness, obtained a Bachelor of Arts degree and then a journeyman certificate as a landscape gardener. He holds a number of certifications, but does not have a university degree in forestry.

He was certified as an arborist by the ISA in 1994, and was recertified every three years until 2006. He was certified as a tree worker in 2002, and was recertified every three years to 2014, and he was certified as a Master Arborist in 2007 and recertified to 2016. He was also certified as a horticultural landscape technician in 1997 and recertified through 2014. He became a certified tree worker evaluator in 2015. He is an instructor at Olds College in the landscape gardener apprenticeship program and also operates a 30-acre tree farm.

He has been a Board member of the Landscape Alberta Nursery Trades Association (LANTA) for eight years and was its President in 2010-2011. [ 26 ] Mr. Fournier is also a licensed pesticide applicator, and he was employed as an urban forest technician applying herbicides, fungicides and fertilizer for two years. He founded his own company in 1990, then sold his share in 1993. He then became the superintendent of Arborcare Tree Service Ltd, a major supplier of arborist services, overseeing its pruning, tree removal, stump grinding, fertilizing, and herbicide application operations.

He incorporated his current business, For Trees Company Ltd., in 2000. Mr. Fournier’s resume lists numerous awards. He has been qualified as an expert witness on two occasions in the Provincial Court of Alberta. [ 27 ] Mr. Fournier’s first report of November 23, 2011 referred to the consequences of trees being exposed to glyphosate: decreased resistance to disease and environmental stress, bark cracking, loss of productive vigor, and loss of the ability to produce new growth due to the compound’s chelating properties. [ 28 ] Mr. Fournier first inspected the Plaintiffs’ farm property on November 16, 2011.

His report from that site inspection reflected his belief at that time that 256 spruce trees would not survive the overspray. While he operated a clicker device as he toured the shelterbelt to count dead trees, he took no notes. It is clear that he missed some trees in his calculations, in particular, nine trees from the east side and 34 from the north side, east of the field break.

At trial, he recalled having had some discussion with the Plaintiffs on his 2011 inspection as to whether it was worth watering and fertilizing the affected trees and he said it was potentially damaging to fertilize right after an overspray. I accept the Plaintiffs’ account of his comment at the time that watering and fertilizing the trees would not save

them. [ 29 ] Mr. Fournier performed a second site inspection on September 4, 2013. He noted in his second report dated November 4, 2013, that only 94 trees required replacement. However, he missed reference to three rows of trees on the west side of the property. [ 30 ] Mr. Fournier performed a third site inspection on July 10, 2015, assisted by Kali Acorn, who holds a Bachelor’s degree in Applied Science, Landscape Management, a Landscape Technician Diploma and is a certified arborist.

At that time he noted the affected trees looked even better than in 2013 and acknowledged the Plaintiffs’ maintenance contribution and “some luck”. His third report, dated January 6, 2016, stated that only 86 trees required replacement. He amended that number to 87 at trial. [ 31 ] Counsel for the Defendants confirmed in their final argument that the number of trees requiring replacement could be increased to 142 to account for trees missed by Mr.

Fournier in his reports, namely: 34 trees in the North rows east of the field break, nine trees in the East rows, 12 missing tree locations as set out in the notes taken by Ms. Acorn and one tree (#150 in the photos attached to his 2016 report) that he acknowledged at trial was almost completely dead. [ 32 ] The Defendants noted that unlike Mr. Davies, Mr. Fournier photographed each tree in the shelterbelt on his last site inspection in July 2015 and provided a detailed opinion as to the condition of each tree in his January 2016 report.

In questioning regarding a row of trees located on the northwest side of the property, both experts agreed that this row contained 37 trees. Mr. Davies stated in his 2015 report that 21 of the 37 trees in that particular row were dead, while Mr. Fournier stated in his 2016 report that only 5 were dead. [ 33 ] Under cross-examination, Mr. Davies was taken through the photos attached to Mr. Fournier’s 2016 report of each of the 37 trees and acknowledged that only five (not 21 as stated in his report) of the trees were dead, many having continued to grow after his 2014 site inspection.

Based on this evidence, the Defendants submit that Mr. Fournier’s calculations of the number of trees requiring replacement should be preferred over those of Mr. Davies. [ 34 ] Counsel for the Plaintiffs argued that as Mr. Davies was not taken through the photos of each and every row of trees, there is no evidence from which other downward adjustments can be made as to the number of trees he reported to be dead. Also, as noted by Mr.

Davies, the photos are two-dimensional and taking him through them could not provide definitive answers as to whether they would survive. [ 35 ] I find that the evidence of number of trees Mr. Davies acknowledged at trial were alive at the time they were photographed in 2015 in the row he was taken through in cross-examination raises concerns as to the current overall accuracy of the calculations of the number of dead trees contained in his March 2015 report, having conducted only one site inspection, over one year before the photos were taken. I find that many of the trees characterized as dead by Mr.

Davies have managed to survive because of the care given to them by Mr. Brodniansky in the form of watering, fertilizing and pruning each growing season since the overspray. Mr. Davies himself noted by way of explanation for his reduction at trial of his 2014 count of dead trees in the row of 37 trees that some of them may have had a survivable bud that would have been flushed out in 2015. [ 36 ] Having considered the Plaintiffs’ evidence, the expert reports, and the testimony of both experts, I find that the number of trees that died should be set at 142 . IV.

Surviving but Damaged Trees [ 37 ] The Plaintiffs argue that in addition to the 169 trees Mr. Davies noted to be dead or missing, 71 of the surviving trees also require replacement because they are either badly deformed or cut back substantially to deal with insect infestation. Mr. Davies’ and Mr. Fournier’s opinions diverge on the cause of the insect infestation, Mr. Fournier opining that it was unrelated to the overspray. [ 38 ] The Defendants submit that Mr.

Fournier examined every tree and made a detailed assessment of their health, providing photographic evidence of 180 trees that continued to grow, and will, therefore, serve their function in a shelterbelt. To remove perfectly functional and living trees for the sake of aesthetics is unreasonable.

The fact that the Plaintiffs have not removed more trees than they have to date and have continued to maintain the affected trees demonstrates their functionality within the shelterbelt. [ 39 ] I accept the Plaintiffs’ testimony that they were awaiting the results of these proceedings before embarking on a large-scale tree-removal and replacement operation at considerable cost, and I do not take their having made this decision as an admission that the trees are functionally adequate. [ 40 ] Mr.

Fournier testified that in his opinion most of the trees remaining in the shelterbelt will recover, especially if given a little bit of extra care. Having stated in his January 2016 report that only 86 trees required replacement, he noted at p 8 of his report: … all other trees have survived and many are even thriving now, four years after the event…. Even trees that are in very poor condition can be left to grow on. If they are in very poor condition now, chances are they were in very poor condition prior to the drift event of 2011 . The trees’ primary contribution to the site is for shelter on a rural property.

Hence, any tree that is alive, will contribute to shelter effect, and as long as it continues to grow, will have value for this purpose. [ 41 ] I find that Mr. Fournier’s comment regarding the condition of the trees being poor prior to the 2011 overspray to be conjecture, as there is no basis in the evidence for this observation and the pre-overspray photos indicate the contrary. That this is conjecture is supported by his use of “chances are” terminology to qualify his description of the condition of the trees prior to the overspray incident.

Also, his opinion that “most” (not “all”) of the trees will recover leaves lingering doubts about the survival of some of the trees he stated need not be replaced. While a live tree may have some shelter effect, its functionality within the shelterbelt is reduced if it is deformed (such as some noted to have damaged canopies) or has been substantially pruned back to arrest insect infestation.

[ 42 ] Mr. Fournier also stated in his 2016 report that the trees “… were never in any great condition to begin with having been sourced from local shelterbelts and forest patches”. He testified that the trees were “scavenged” from shelterbelts and roadside ditches, which was incorrect and was not information he received from the Plaintiffs. I accept the Plaintiffs’ evidence that they selected and planted trees in excellent condition from nearby farm fields. There was no evidence to support Mr.

Fournier’s opinion that “… none of the 86 trees [that died] were in perfect condition to begin with.” [ 43 ] However, unlike Mr. Fournier’s 2016 report, Mr. Davies’ report did not contain an individual assessment of each tree or specify the position of each damaged or dead tree in a particular row so as to be able to compare a particular tree he counted among those in poor condition requiring replacement with the photographs of each individual tree taken by Ms. Acorn one year later. [ 44 ] In his January 2016 report, Mr.

Fournier adopted a numbering system from the Council of Tree and Landscape Appraisers’ Guide for Plant Appraisal , 9 th edition, which set out at Table 4.3 a “Guide to Judging Plant Condition”: Scoring system No apparent problems 4 Minor problems 3 Major problems 2 Extreme problems 1 [ 45 ] Mr. Fournier also documented: the estimated tree height (using a seven-foot measuring stick), the approximate amount of growth since the overspray, and a percentage rating for overall canopy density and vigour (based on the Guide ) in each tree photographed.

He stated that these factors were a useful predictor of future growth. [ 46 ] Mr. Davies objected to the use of canopy density and vigour ratings in a shelterbelt context as these ratings are used in evaluating forests. While by no means definitive given a shelterbelt is not a forest, I find that some limited weight can be given to these ratings when considered in conjunction with the other descriptors used by Mr. Fournier under each photograph in assessing the health of individual trees in the shelterbelt. [ 47 ] As earlier noted, under cross-examination Mr.

Davies was asked to comment on the condition of each tree in a particular row in photos taken on July 10, 2015 annexed to Mr. Fournier’s 2016 report. [ 48 ] Using a couple of examples from the photos of the row of trees reviewed by Mr. Davies assists in understanding the difference between a tree rated by Mr. Fournier as a 2 and a tree rated as a 4 or higher. Tree #161 in the photos attached to his 2016 report was measured at about 12 feet tall and he estimated that it had grown only two feet, six inches in four years, with canopy vigor estimated at 50%.

In contrast, he rated tree #162, at about 10 feet tall with estimated growth of five feet in four years and with canopy vigor at 90%, as a 4.5. [ 49 ] The table below illustrates, for the row of trees Mr. Davies was taken through in cross-examination, the rating given to the individual tree by Mr. Fournier and Mr. Davies’ opinion as to whether the tree required replacement. In some cases, Mr.

Davies was unsure whether the tree in question, although not dead, would be viable based only on a review of a two dimensional photo: Tree # Fournier Report Rating Davies’ opinion re: replacement 121 1.5 replace 125 3 no replacement 126 3 no replacement 127 3 no replacement 128 dead dead – replace 129 2 replace 130 3 no replacement 131 3 no replacement 132 3 unsure 133 dead dead – replace 134 4 no replacement 135 2 not sure 136 3 not sure 137 dead dead – replace

138 3 not sure 139 2 not sure 140 1.5 replace 141 3 no replacement 142 3 not sure 143 3 replace 144 2 replace 145 2.5 no replacement 146 2 replace 147 3 no replacement 148 3 no replacement 149 dead dead – replace 150 0.5 - dead dead – replace 151 3 no replacement 152 3 no replacement 153 3 replace 154 2 replace 155 3 replace 156 1 replace 157 4 no replacement 158 3 no replacement 159 4 no replacement 160 1 replace 161 2 no replacement [ 50 ] As noted in the above table, where Mr. Fournier rated a given tree’s condition as a 2 or less, Mr.

Davies recommended the replacement of each such tree except for three – trees #135 and #139 where Mr. Davis was unsure whether replacement was required, and tree #161 where he stated no replacement was required. [ 51 ] Mr. Davies’ conclusion as to the lack of future viability of a particular tree was consistent with the poorer rating given to the tree by Mr. Fournier. Also indicative of some consistency in their opinions as to the condition of individual trees is the fact that in each case where Mr. Fournier rated the tree as a 3 or higher, Mr.

Davies recommended that the tree not be replaced with the exception of four trees where he was unsure whether the tree should be removed – trees #132, #136, #138 and #142 - and two trees which he recommended be removed – trees #153 and #155. In no case in the sampling reviewed where Mr. Fournier rated the tree condition as a 4 or higher did Mr. Davies recommend replacement or express any uncertainty in that regard. [ 52 ] While two-dimensional photos cannot provide a fully accurate representation of the health of a tree, combined with the additional information provided by Mr.

Fournier on each photo and the opinion of Mr. Davies on reviewing each photo, I find this review of the photos of the 37 trees in one particular row is helpful in determining the number of trees that require replacement. It is important to note in this regard that Mr. Brodniansky continued to care for the damaged trees in each of the growing seasons after the overspray. Mr. Davies inspected the trees on June 4, 2014, near the beginning of the 2014 growing season. Mr.

Fournier’s photos and ratings reflected the condition of the trees one year later and his report provides the most up-to-date information on their condition. [ 53 ] I find that the opinions of both experts of a particular row can be extrapolated to the other trees photographed in the shelterbelt that have not already been classified as dead ( i.e. given a rating of 0 by Mr. Fournier). However, Mr.

Davies’ concerns must be borne in mind that trees with a damaged canopy have reduced functionality within a shelterbelt, and also that trees with very little growth in the period between 2011 and 2015 would raise concerns about their long-term viability in the shelterbelt context. [ 54 ] In comparing Mrs. Brodniansky’s review of each tree in the photos in her handwritten notes (Exh 3), in most cases where she has noted a particular tree as “dead”, it received a 2 or less rating by Mr. Fournier. She also considered trees that had been substantially cut back as dead.

In many cases, she described trees as “deformed” that received a higher rating by Mr. Fournier. I find that even though a live tree in poor condition may contribute to the shelter effect, I also accept Mr. Davies’ evidence that exposure to glysophate affected

the tree’s response to drought and insect attack and also affected the tree’s growth. It is impossible to predict with certainty future tree health, even four years after the damaging event (in this case, when the photos of each tree were taken). [ 55 ] I also find that some caution must be exercised in assessing Mr. Fournier’s findings as to the number of trees requiring replacement, as there were errors in his calculations. In particular, there were a number of missing trees he failed to account for, and there was considerable evolution in his predictions as to the number of trees that would survive.

His 2011 report predicted that 80-90% of the damaged trees might not survive the winter, while his 2015 site inspection predicted that 74% of the trees would continue to grow and flourish again. [ 56 ] Mr. Fournier was surprised on his September 2013 site inspection that many of the trees he had expected in 2011 to have died had made a full or partial recovery.

His 2013 report stated that it was highly probable that information relayed to him by the Plaintiffs in 2011 that all the affected trees were recent transplants (and therefore, did not have the energy resources to cope with the loss of a full year’s growth) may have been “unreliable”. However, Mrs. Brodniansky testified that Mr. Fournier made no inquiries in 2011 as to the age of the affected trees. She confirmed that the most recent transplants had been completed in 2007 and there were no stakes in the ground to indicate otherwise. Mr.

Fournier could only indicate at trial that if he asked the Plaintiffs in what year the trees were planted, he did not record the answer. [ 57 ] I accept Mrs. Brodniansky’s testimony about her discussions with Mr. Fournier in 2011, and find that the Plaintiffs did not supply Mr. Fournier with unreliable or incorrect information. It is more likely Mr. Fournier confused the last tree plantings along the driveway (not in the shelterbelt) in 2010 with those on the east side shelterbelt trees in 2007. [ 58 ] Having considered the experts’ and Mrs. Brodniansky’s evidence, I find that where Mr.

Fournier rated a tree at 2 or less in the case of 68 trees photographed, there are serious concerns about the tree’s future viability for use within a shelterbelt. In some cases, as noted by Mrs. Brodniansky, the tree had to be cut back substantially. I add to those 68 trees, tree #78, which was stunted with poor canopy vigour and was rated at 2.25, for a total of 69 trees to be replaced with ratings of 2.25 or less. [ 59 ] From this number should be subtracted the 18 trees rated as a 0 by Mr. Fournier, which have already been counted among the 142 dead or missing trees, and tree #151 to which Mr.

Fournier gave a 0.5 rating but acknowledged at trial that it was essentially dead for a net total of 51 trees with a rating of 2.25 or requiring replacement. [ 60 ] With respect to trees that Mr. Fournier rated as a 2.5 in his 2016 report, the following information was provided in conjunction with their photos: Tree #6: 4 feet tall grown 3.5 feet, canopy vigour 65% Tree # 25: 5 feet tall grown 3 feet, canopy vigour 50%.

Tree #31: 8 feet tall, grown 1 foot 6 in., canopy vigour 50% Tree #35: 8 feet tall, grown 3 feet 6 in., vigour 50% Tree #45: 11 feet 6 in tall, grown 4 feet 6 inches, canopy vigour 70% Tree #50: 7 feet tall, grown 3 feet, canopy vigour 70% Tree #61: 7 feet 6 inches tall, grown 4 feet, canopy vigour 50% Tree #76: 11 feet tall, has grown 1 foot, canopy vigour 50% Tree #124: 7 feet tall, grown 3 feet 6 inches; canopy vigour 50% Tree #126: 14 feet tall, grown 3 feet, canopy vigour 65% Tree #145: 14 feet 6 in. tall, grown 3 feet, canopy vigour 60% Tree #172: 5 feet tall, grown 2 feet, canopy vigour 60% Tree #174: 6 feet tall, grown 2 feet 6 inches, canopy vigour 80% Tree #175: 7 feet 6 in. tall, grown 3 feet, canopy vigour 80% Tree #176: 6 feet 6 in. tall, grown 3 feet, canopy vigour 80% Tree #177: 7 feet 6 in. tall, grown 4 feet, canopy vigour 80% Tree #183: 6 feet 6 in. tall, grown 3 feet, canopy vigour 90% (cut back) Tree #184: 6 feet tall, grown 3 feet, canopy vigour 90% (cut back) Tree #189: 10 feet tall, grown 3 feet 6 inches, canopy vigour 80% Tree #192: 11 feet tall, grown 4 feet, canopy vigour 90% Tree #194: 8 feet tall, grown 2 feet, canopy vigour 50%

[ 61 ] I find that the trees with a rating of 2.5 require replacement (including trees #183 and #184 that were substantially cut back) except the trees bolded above whose canopy vigour exceeded 50% and which experienced relatively good growth. This amounts to 9 trees in the 2.5 rating category that require replacement. [ 62 ] Where Mr. Fournier gave an individual tree a rating of 3 or more, the canopy vigour was well over 50% in most cases with the exception of only two trees, #107 and #113 with a canopy vigour of 50%. There was also very poor growth (3 in.) noted in tree #113.

While it is noted that even with a canopy vigour of only 50% and relatively little growth in the case of tree #151 (rated a 2 by Mr. Fournier), Mr. Davies did not recommend its replacement, although he was relying entirely on a two-dimensional photograph in giving his opinion. Mr. Fournier and Ms. Acorn reviewed each tree and I am satisfied, despite their handwritten notes being in different ink colours, that the notes were taken sufficiently contemporaneously with the photo-taking to make them reliable. [ 63 ] However, Mrs.

Brodniansky’s notes (Exh 3) of her review of each of the photos indicated where trees have been substantially cut back, which I accept. Accordingly, I am of the view that for all trees rated 3 or more there should be no replacement with the exception of trees #9, #10, #14, #43, #113, #118, #170 which were cut back considerably as Mrs. Brodniansky indicated in her review of the photos and as the photos themselves confirm, for a total of 7 trees to be replaced in the 3 and above rating category. [ 64 ] Mr.

Fournier referred to the trees having been damaged by insects, in particular: Tree #6: pine weevil damage – rated 2.5 with canopy vigour of 65% and 3.5 feet of growth; Tree #61 – alleged spruce budworm damage – rated 2.5 with canopy vigour of 50% and 4 feet of new growth. [ 65 ] Mr. Davies identified two insects that can be particularly devastating to a young spruce shelterbelt if allowed to take hold, the yellow-headed spruce sawfly and the white pine weevil.

He found no feeding evidence of the first insect in the shelterbelt trees, but many examples of the white pine weevil having taken hold in the years before his site inspection, especially on the trees attempting to recover from herbicide poisoning. He stated that trees that have been severely stressed are more vulnerable to insect infestations and other tree diseases. [ 66 ] The white pine weevil particularly attacks juvenile spruce trees. Larval feeding always kills two years of growth, the current and previous year.

The tree’s leader dies, then one or more of side branches nearest to the treetop attempts to assume apical dominance, leading to a multi-leader tree that is misshapen and weakened. Drought-stressed trees have a greatly reduced ability to “pitch-out” (push out) insects through increased resin or pitch production. He saw very little evidence of fresh resin coming from the trees in the shelterbelt. Trees with an impaired ability to take up water due to root system deterioration will show the same symptoms as a drought- stressed tree. [ 67 ] In his 2016 report, Mr.

Fournier denied that the white pine weevil damage was a continuation of the damage caused by exposure to glysophate. In his 2011 report, Mr. Fournier stated that exposure to glysophate in trees has been linked to decreased resistance to disease and environmental stress. Yet, in his trial testimony, he referred to there being some debate whether overspray makes trees weaker. I accept Mr. Davies’ evidence, as supported by the experts he cited in his reply report and testimony, that trees exposed to glysophate are predisposed to white pine weevil infestations.

The glysophate induces weakening of plant defences as it accumulates in the root, shoot, and reproductive tissues, alters the condition of the soil, and results in decreased plant growth and vigour. This, in turn, reduces the tree’s resistance to drought and to attack by pests. [ 68 ] I also accept Mrs. Brodniansky’s testimony that there were no insect infestations in the trees she and Mr. Brodniansky planted in the shelterbelt before the overspray incident. Mr. Fournier testified that he did not note much in the way of insect damage when he first inspected the damaged shelterbelt in 2011.

I find that the insect infestation observed resulted from the glysophate overspray, having left the affected trees in a weakened state rendering them vulnerable to infestation which was very evident by the time Mr. Davies inspected the trees in 2014. [ 69 ] Mr. Fournier identified two trees that he believed may have been damaged by an herbicide other than glysophate, tree #154 (rated 2) and tree #160 (rated 1). I find that this is conjecture, there being no evidence that the Plaintiffs applied other herbicides to the affected trees. I have counted both trees among those Mr.

Fournier rated at 2 or less that should be replaced. [ 70 ] Mr. Davies acknowledged under cross-examination that he instructed the Plaintiffs on how to prune trees to mediate the effect of insect infestation damage on a number of trees that in his 2011 report he noted required replacement. However, he had no first-hand knowledge if pruning helped nor could he venture an opinion as to whether the trees formerly needing replacement had recovered. I find that the pruning performed by Mr.

Brodniansky on affected trees has resulted in some recovery. [ 71 ] I am of the view that in situations where a tree has been pruned and was rated 2.5 or higher by Mr. Fournier, as there was still growth, those trees have future viability within the shelterbelt except to the extent that their growth will lag behind other trees that did not require extensive pruning.

This then becomes a matter of compensating for loss of amenities as opposed to replacement. [ 72 ] Accordingly, I find that a total of 209 trees require replacement, having considered the testimony and documentary evidence of the Plaintiffs, and the testimony and reports of the expert witnesses, including the photos taken in July 2015: (i) 142 dead (or missing) trees (including tree #150); (ii) 51 trees rated 0.5 to 2.25 by Mr. Fournier in the photos (not including tree #150); (iii) 9 trees rated 2.5; (iv) 7 trees rated 3 or higher.

V. The Impact of the Overspray on the Market Value ofthe Plaintiffs’ property [73] The Defendants called Mr. Gary Stratichuk, a real estate appraiser, who was qualified as an expert in real estate appraisal, including rural real estate. The Plaintiffs did not call an expert with similar qualifications to refute Mr. Stratichuk’s February 1st, 2013expert report. [74] Mr. Stratichuk is a designated appraiser with the Appraisal Institute of Canada and a licensed member of Real Estate Councilof Alberta.

He has been employed for 22 years as a real estate appraiser in north central Alberta and provides opinions as to market valuefor properties ranging from single family homes to small agricultural properties. He has been qualified as an expert witness in his area ofexpertise on two prior occasions in this Court, in the mid-nineties and again in 2016. [75] Mr. Stratichuk testified that the area of the Plaintiffs’ farm property, which he described as a residential hobby farm, consistsof hobby farms, improved homesteads, and vacant lands.

He used the direct comparison approach, which is to compare the property tosale prices of comparable properties. He noted that 75 to 80% of the Plaintiffs’ 80.83-acre property is open arable land, with an 11-yearhome in good repair. Shelterbelts are characterized as site improvements and are examined for their maturity, condition, and utility. Froma market value perspective, their value as a site improvement is related to function and not really esthetics, unlike landscapingsurrounding a home.

Trees located in a shelterbelt are not individually counted as part of the appraisal process and a mature shelterbeltwould be comprised of trees that are 30 to 40 feet in height. [76] Mr. Stratichuk provided an appraised value of the Plaintiff’s hobby farm of $765,000. In a letter dated March 1st, 2013, heindicated that he had attempted to obtain market data identifying the effect on market value of damaged shelterbelt trees bordering ayard, but no market data was available that could support positive or negative conclusions.

He referred to there being tip damage to treesalong the north and west sides of the property which he assumed would be rejuvenated over time and that the loss of trees that are deadwould have limited to no effect on the marketability of the property as a whole. He was unaware of the cost of planting new spruce trees. [77] Under cross-examination, Mr. Stratichuk acknowledged that he is not an arborist or landscaper.

In relation to the data from thecomparable properties that had been sold, there was no deliberately-planted shelterbelt on the first comparable and only native bush onthe south and west sides of the yard, which he stated had the same function and utility as a shelterbelt in protecting against wind anddust. Comparable #2 had a mature shelterbelt along the west and a portion of south boundary and a small planted shelterbelt consistingof 20-30 trees along the east side of the home and shop, but that was the extent of the planted shelterbelt.

He stated that there is very littledifference in the eyes of a purchaser in the function of shelterbelt whether it is planted or consists of wild bush. VI. Appropriate Approach to Calculating Damages [78] The Plaintiffs claim the cost of replacing the dead and damaged trees. The Defendants, however, argue that damages shouldbe based on the loss in market value of the farm. [79] Counsel for each of the parties referred to Kates v Hall (1991) (BC CA), 53 BCLR (2d) 322 (CA). Therethe plaintiff sought damages of $200,000, the estimated cost of replacing trees cut down by the defendant.

At trial, the plaintiffs’damages were assessed at $60,000: $21,000 in restoration costs, $1,000 per tree for loss of amenities during the time it would take for thetrees to reach the same height as those replaced, and $2,000 per tree in punitive or exemplary damages. The trial judge found that the lossof the trees did not lead to a decrease in property value. At the time of trial the plaintiffs had not yet replaced the trees. [80] The plaintiffs appealed the restoration portion of the award because it did not reflect the cost to replace as nearly as possiblethe trees cut down.

Proudfoot J.A., writing for the Court, noted at p.6 that the cost of restoration was disproportionate to the negligiblereduction in the property value.

She also noted the complicated logistics of anchoring guy wires to the Defendants’ land to hold 40-footreplacement hemlock trees in place and the lack of guarantee that replacement trees would survive. [81] Proudfoot J.A. concluded at p 8 that the plaintiffs’ restoration plan was not reasonable: The law in British Columbia following Dykhuizen requires the court to ask what is reasonable in the circumstances, not, as argued bycounsel for the appellants, what are the “express wishes” of the appellants.

As the trial judge said “The authorities clearly establish thatthere are limits imposed on the extent to which a trespasser who causes damage can be required to restore land to its previous state. Acourt will not require the trespasser to finance restorative measures which are plainly unreasonable.” [82] Proudfoot J.A. noted that the courts also consider the use to which the injured party has, and will, put the property. In Kates,the appellants spent little time in the home and many more trees and shrubs remained on the property.

Proudfoot J.A. found that theirloss of privacy could be restored through a less costly approach. While not irrelevant, the wishes of the owner are subordinate to theoverall consideration of what is reasonable, practical and fair in all of the circumstances. [83] Proudfoot J.A. noted at p 9 that in determining what is fair and reasonable, the trier of fact is not required to accept one set ofevidence in its entirety as packaged by one or other of the experts.

In dismissing the appeal, she concluded that the trial judge did not errby determining the appropriate amount of compensatory damages or in his award of damages for loss of amenities. [84] Counsel for the Plaintiffs noted that unlike this case, the plaintiffs in Kates were claiming the cost of replacing 40-foot treeswith trees of the same size. Here, the trees ranged in height from 4-8 feet with only 54 trees over 10 feet tall, none of which require,cranes for planting or guy wires to support them.

[85] Counsel for the Plaintiffs also referred to Hamel v Moilliet, 1994 CarswellBC 2706, [1994] BCJ No 2664 (SC) where 15 treeswere cut down, but the loss of the trees did not affect the value of the property. The trial judge accepted as reasonable a remedial planproposed by a landscaper to replace the 70-80 foot tall trees with 12 - 15 foot trees and to assess damages for loss of the plaintiff’senjoyment of the property.

He awarded damages of $6,360 to replant 15 trees ($9,565 in current dollars), and loss of amenities based on$1,000 per tree for a total of $15,000 plus $5,000 for damage to the undergrowth and other trees during the trespass. [86] In Samari (Green Side Up Landscaping) v Oakridge Restaurants LP (Boston Pizza), 2008 ABPC 70, relied on by thePlaintiffs, the trial judge awarded $13,910 to replace twelve 15-20 foot mature spruce trees on the plaintiff’s property.

In that case, theplaintiff took immediate steps to clean up the damage caused by the destruction of the trees and planted new trees to replace them at acost of $13,910 ($1,342.68 per tree in today’s dollars). [87] Counsel for the Plaintiffs noted Mr. Stratichuk’s acknowledgement that he had no expertise in assessing trees. Two of thethree comparables he used in preparing his February 1, 2013 appraisal report did not have planned shelterbelts and the third had a matureshelterbelt on only two sides.

As his letter of March 1, 2013 indicated, he unsuccessfully attempted to obtain market data that couldsupport conclusions either positively or negatively as to the impact of the damaged shelterbelt on market value. Accordingly, thePlaintiffs maintain that Mr.

Stratichuk’s appraisal is not evidence that the overspray incident devalued the property, nor did his evidenceaddress whether full restoration of the shelterbelt on three sides of the property would result in an increase in the overall value of theproperty. [88] In any event, the Plaintiffs maintain that even if there is only a nominal loss in property value, they are entitled tocompensation on a replacement cost basis.

They worked very hard to remove the old poplar shelterbelt, map out the new shelterbelt,prepare the soil before planting, and they individually selected and planted new spruce trees and maintained them for several years onceplanted. Further, after the overspray, Mr.

Brodniansky expended a great deal of effort between 2011 and 2016 to save the trees andmitigate damages. [89] The Defendants relied on a number of cases that limited damages to what is reasonable in the circumstances; in particular thecases balance the cost to repair the damage with the diminution of the property value. [90] In NuWest Homes Ltd v Thunderbird Petroleums (1975), (AB CA), 59 DLR (3d) 292 (ABSCAD) MoirJ.A., writing for the Court, determined at para 35 that the principle that the measure of damages is the cost of making good the defectsand omissions in the work contracted is subject to a restriction: ...where the cost of rectification is great in comparison to the nature of the defect, the Court will not force a slavish following of theprecise specifications of the contract. [91] Moir J.A. also noted at para 58 that the wrongdoer is entitled to expect the aggrieved party to act reasonably. [92] Counsel for the Defendants also referred to Sinkewicz v Schmidt (1994), (SK KB), 118 Sask R 112 (QB)where a municipality inadvertently bulldozed trees on the plaintiff’s vacant country acreage.

Halverson J. identified the issue at para 2:should damages be measured in terms of the reduced value of the acreage or the cost of restoring the property to its original state. In thatcase, the plaintiffs claimed they had planted 1,690 trees and shrubs. Halverson J. found that the estimates of time and work taken to do sowere “greatly exaggerated”. He also found it apparent that the plaintiffs lost interest in the property.

He cited at para 45 McGregor on Damages, 14th Ed (London: Suite & Maxwell Limited, 1980) at p 1121, which in turn referred to Harbutt’s Plasticine v Wayne Tankand Pump Co, [1970] 1 QB 447 (CA): The difficulty in deciding between diminution in value and cost of reinstatement arises from the fact that the plaintiff may want hisproperty in the same state as before the commission of the tort but the amount required to effect this may be substantially greater than theamount by which the value of the property has been diminished.

The test which appears to be the appropriate one is the reasonablenessof the plaintiff’s desire to reinstate the property; this will be judged, in part, by the advantages to him of reinstatement in relation to theextra cost to the defendant and having to pay damages for reinstatement rather than damages calculated by the diminution in value of theland. [93] In concluding that the compensation to the plaintiffs was limited to the reduced value of their property, Halverson J. notedthat the acreage was never used as a home and likely would never be; it was little more than an isolated piece of relatively flat prairie andutilities were not close by; there was a great disparity between the two measures of damages (restoring property versus reduced value);and it was inconceivable that the funds awarded would be used for their remedial purpose.

Even the lowest estimate of $60,000 to restorethe trees was something that no reasonable person would expend on this particular parcel. He awarded damages of $3,400 based on thereduced property value. [94] Counsel for the Defendants also referred to Fondrick v Gross, 2003 SKQB 307, a case of aerial herbicide oversprayingdestroying trees. The affected trees and shelterbelt had been damaged 12 years earlier by a severe hailstorm and, before the overspray,the plaintiffs had conducted little maintenance and did not replace the damaged trees.

There was no evidence on whether the value of theproperty had been decreased. Hunter J., at para 112, concluded it was unreasonable to suggest that a person would expect to plant a treeof similar size at retail value. This was a very low maintenance yard, and there had been little prior pruning and no watering of theshelterbelt areas. She determined that the plaintiffs would be more likely to replace any of those trees with small replacement trees andwould not, of their own volition, spend money on large replacement trees.

She found the market value of the trees to be overstated by atleast 50% and awarded damages of $10,000. She reduced the damages by 20% on the basis that an early pruning and watering programwould have significantly mitigated the tree and shrub damages. [95] Nominal damages of $250 were substituted for a trial award of $7,000 in Boudreau v LeBlanc (1988), (NB CA), 91 NBR (2d) 330 (NBCA), where the defendants had wrongfully cut down about one third of the plaintiffs’ trees on a

residential wood lot. While the evidence adduced at trial established that the plaintiffs suffered damages as a result of the trespass, they failed to lead evidence to establish the quantum of their loss. [ 96 ] In Miccar Enterprises v Lowndes , 2003 SKQB 325 , a situation where an overspray had killed some trees and damaged others on the plaintiff’s property, the small claims judge calculated damages for the replacement of all 143 trees killed or damaged.

On appeal, damages were reduced to $3,580, Klebuc J. having determined that the trial judge erred in concluding that 88 of the 143 trees were damaged, because the nature and extent of the injury to those trees and consequential damages to the respondent were not ascertainable from the evidence. [ 97 ] Relying on these decisions, the Defendants submit that the Court should consider the following factors in assessing damages:

a) Whether the damage occurred inadvertently or was deliberate and offensive. In this case, it is clear that the damage was cause inadvertently;

b) The purpose of the shelterbelt: The primary purpose of the shelterbelt was to provide protection from the wind, and it continues to provide some protection. This was not a mature shelterbelt, nor were the trees purchased from a commercial vendor. The trees were wild and of varying height;

c) The use to which the Plaintiffs intended to put the property: The Plaintiffs had listed the property for sale prior to the overspray and the very detailed feature sheet on the property made no reference to the shelterbelt;

d) The cost of replacement: The Defendants maintain that apart from the 142 trees that have died, the remaining trees do not require replacement; and

e) The loss of value to the property: It was Mr. Stratichuk’s uncontradicted evidence as an expert in real estate appraisal that the damage to the shelterbelt would have limited to no effect on the marketability of the property as a whole. [ 98 ] Counsel for the Defendants note the Plaintiffs seek an award of over $188,000 for the replacement of 240 trees, where the property as a whole has been valued at $765,000. They maintain that no reasonable person would pay such a sum to replace dead or damaged trees in a shelterbelt.

A reasonable person intending to sell the property, on learning that its market value was virtually the same after the overspray, would not replace the trees at that cost as doing so would incur an unnecessary loss. The feature sheet on the listing made no mention of the shelterbelt. The Plaintiffs have not replaced the shelterbelt, but could have done so at minimal cost, just as when it was first planted.

The Defendants submit that an award based on replacement value would be a windfall to the Plaintiffs and that minimal damages should be awarded. [ 99 ] Having considered the evidence, the case authorities and the arguments of counsel, I find that an award of in excess of $188,000 is not reasonable, practical, or fair in the circumstances, particularly given that: the use is as a shelterbelt and not ornamental; the shelterbelt was not mature and consisted of unpruned trees of varying height before the overspray; the Plaintiffs intend to sell the property and the shelterbelt; and the uncontradicted evidence of Mr.

Stratichuk that the loss of trees within the shelterbelt would have limited to no effect on the marketability of the property. While the Saskatchewan and British Columbia decisions cited by the parties are not binding on this Court, they provide a useful analysis of factors to consider in determining whether the cost of rectification in a particular case is unreasonably high. [ 100 ] Many of the cases cited by the Defendants are distinguishable. For example, in Sinkewicz , the owners did not use the property as a home and the court found it inconceivable that they would spend $60,000 restoring the property.

In the present case, it is clear that the Plaintiffs took great pride in their farm property and over a period of several years, painstakingly planted the shelterbelt. The current appearance of the shelterbelt stands in stark contrast to the pristine condition of all other improvements on the Plaintiffs’ hobby farm. I am satisfied that the Plaintiffs will use the damages awarded to replace the dead and damaged trees. [ 101 ] In Fondrick , the owners had performed very little maintenance on the shelterbelt before the spray event and many of the trees had already been severely damaged by hail.

The trees were considerably taller than the average tree height in the present case. [ 102 ] In Labonte v Regina (City) , 2005 SKQB 48 , an appeal from a small claims award, McLellan J. referred to Sinkewicz and Fondrick and determined, at para 15 , that evidence of diminished land value was not necessary as this would place too narrow an

interpretation on the judgments in those cases. Unlike the situation in Miccar , there was evidence on the nature and extent of the injuries to the trees. McLellan J. concluded that the trial judge properly assessed damages by determining the pre-accident value of the tree and calculating the reduction in its value caused by the damage, to which was added the clean-up cost. [ 103 ] The proper approach to the assessment of damages is to weigh all of the evidence and apply common sense to achieve a reasonable result. [ 104 ] The trees were part of a shelterbelt that had not reached maturity.

The shelterbelt’s purpose was principally as a windbreak.

However, placing a hobby farm on the market surrounded by trees showing visible damage would cause a reasonable owner to be concerned about the overall esthetic presentation of the farm that, in this case, the Plaintiffs had taken years to upgrade to its pre- overspray condition. [ 105 ] However, the Plaintiffs’ claimed cost of replacement is unreasonably high, having regard to the purpose of the shelterbelt, and having the uncontradicted expert evidence that from a marketability perspective, the impact of the overspray is relatively inconsequential. [ 106 ] I find that the Plaintiffs’ wish to repair the damage before putting the farm back on the market is reasonable.

They expended considerable effort in creating the shelterbelt in the first place, and thereafter, spent considerable resources and time to repair the damage

as much as they could. Unlike the cases where the plaintiffs did not maintain the trees before the injury or mitigate damages after, these Plaintiffs clearly took pride and worked hard to create an effective and attractive shelterbelt. I therefore reject an approach which would see the Plaintiffs recovering only nominal damages based on a market value approach. [ 107 ] An award based on a reasonable per tree replacement cost and a reasonable maintenance period for the new trees is appropriate in this case. I note, in that regard, that Mr.

Fournier, the Defendants’ expert witness, did not adopt a market value approach, but sought to determine a reasonable per-tree replacement cost, which would also include the cost of maintaining the new plantings over two seasons.

In choosing to adopt the replacement cost approach, I am mindful, as noted in Kates , that the owners’ wishes, while not irrelevant, are subordinate to the overall consideration of what is reasonable, practical and fair in all of the circumstances. [ 108 ] On the other hand, I reject the Plaintiffs’ argument that the Defendants’ conduct was offensive justifying an increased award or punitive damages. This was first addressed in argument in the Plaintiffs’ reply brief and there was no evidence that the damage was done deliberately or of conduct that would otherwise justify an award of punitive damages. VII.

A Reasonable Approach to the Valuation of Trees for Replacement Purposes [ 109 ] Mr. Davies sought estimates to replace the dead trees and those in poor condition based on tree heights he obtained from the Plaintiffs’ Diagram. Mr. Fournier’s height measurements were based on his 2015 site inspection using a measuring stick. In his 2016 report, Mr. Fournier took no issue with the Plaintiffs’ height estimate of four to six feet for the trees that had died on the east side. His calculations did not include the 17 trees in two rows on the area on the north side, east of the break.

The Plaintiffs estimated the height of these trees at 4-8 feet; I accept this estimate. [ 110 ] The tree height estimates of Mr. Fournier and the Plaintiffs did not diverge substantially for the inside row of the north side, west of the break: 15-25 feet according to the Plaintiffs; 15-20 feet according to Mr. Fournier. As for the outside row, Mr. Fournier’s estimate of tree height was six feet compared to the Plaintiffs’ 6-10 feet. [ 111 ] As for the west side, Mr. Fournier agreed with the Plaintiffs’ height estimate of 2-4 feet for trees on the inside row.

For the west side, middle row, the Plaintiffs noted the height of the first 21 trees to be 12-15 feet and of the 29 other trees to be 10-15 feet. Mr. Fournier estimated, on his count of 32 trees, average heights of 8-12 feet. [ 112 ] As for the outside west row, the Plaintiffs’ Diagram noted 18 trees at heights of 12-15 feet and 18 trees at heights of 4-6 feet, whereas Mr. Fournier noted the tree height in his 2011 report at 4 – 6 feet. I prefer the Plaintiffs’ evidence when it comes to tree heights and, in particular, as regards the west outside row, the row of the most divergence of opinion. Mr.

Fournier’s figures simply do not correlate to a realistic rate of growth given his measurement of current height, particularly for trees #5 and #37. [ 113 ] Mr. Davies sent a Request for Proposal (RFP) to various nursery suppliers and landscape firms specializing in supplying and planting trees. He received three quotes, two for both supplying and planting trees and one for planting only, summarized at Table IV, page 9 of his expert report. In Table V, he broke down the per tree cost of these quotes based on the replacement of 245 trees.

The lowest quote he received for supplying and planting trees was $132,630 ($541.35 per tree) exclusive of GST from Seven M Construction. Mr. Davies broke down tree heights from the Plaintiffs’ Diagram into categories of: under four feet (36 trees); 4-6 feet (103 trees); 6.5-8 feet (24 trees); 8-10 feet (28 trees); and over 10 feet (54 trees). He noted that the quotes he obtained are now over two years old and, as there has since been an increase in planting demand, prices have increased by 20 to 25%. [ 114 ] Mr.

Davies received two quotes for removing the dead or dying trees (including stump grinding, removal and travel time), which he set out at Table VI of his report. The lowest quote was $14,870 (or $106.21 per tree) based on removing 140 trees, exclusive of GST. [ 115 ] Finally, Mr. Davies testified that new shelterbelt plantings can take up to three years to establish themselves, after which they require minimal maintenance.

As the quotes for supply and planting did not provide for the watering and servicing of newly planted trees during that three-year period, he obtained a quote for 8-10 water applications in the first year (depending on rainfall) and six water applications in the second year. Two firms quoted for servicing plus cost of water. The lowest, Waterhaulics, estimated $2,940 per watering, plus cost of water, equating to $23,520 - $29,400 for year 1 and approximately $17,640 for year 2, exclusive of GST. Wilco quoted $55,000 for year 1 or $224.49 per tree, exclusive of GST. [ 116 ] Mr.

Davies was asked to comment on the passage below from the Guide to Plant Appraisal, 9 th ed., at p 33: The actual decrease in value of a damaged plant may be needed for insurance or litigation purposes. In these situations, the appraiser may appraise the value of the plant as it existed before the casualty, then determine either the value of the plant after the injury or the extent of the injury expressed as a percentage of total value. In the first case, the loss of value of an injured plant is obtained by subtracting the value after the damage from the value of the plant before the damage.

In the second case, multiply the value before the plant’s injury by the percentage of the plant’s injury. [ 117 ] He acknowledged that he did not follow the Guide in establishing the value of the Plaintiffs’ damages, as the methodology referred to above is used where there is no indication whether the plant should be replaced or not. Using percentages is part of the Trunk Formula method of calculating tree value, which factors in diameter measurements, species, tree condition, and location. Usually this methodology is used when the tree is too large to transplant or replant.

For smaller trees, as in the present case, the tree is simply replaced by another tree from nursery stock. His approach was to determine the cost of taking out the dead or damaged tree, replacing it with a new tree, and making sure it grows. [ 118 ] Mr. Davies was also referred to p 99 of the Guide : The plant appraiser should consider the market value of the entire property in analyzing what contribution the landscape brings to the real estate.

[ 119 ] He indicated he had no insights into landscape appraisals insofar as they relate to land value. He was also referred to an Alberta government publication: Determining Replacement Value of Trees and Shrubs in Alberta, a Guide to Assist Professionals . In the

section entitled “Windbreak, Shelterbelt Evaluation for Alberta”, the Guide noted: “For a belt up to 15 years of age, it is realistic to use the “establishment value”. This value included the cost of land preparation, planting, cultivation and other maintenance for the first five years. Mr. Davies stated that he did not use this approach as it was not necessary to remove the entire shelterbelt. He disputed the suggestion in the Guide that trees could be replaced at a cost of $1.79 per tree.

The $1.79 cost per tree would reflect an early 1990s’ cost of a six-inch seedling, not the cost in 2017 of larger trees. [ 120 ] I note that Mr. Fournier did not use the establishment value approach in his expert reports. In his 2011 report, he categorized his count of 256 glysophate-affected trees by location and height and estimated a cost of replacement based on a value of $25 per foot, for a total for 256 trees of $46,388, exclusive of GST. This quote reflected what he would have charged at the time had the trees not survived.

He selected the rate of $25 per foot as it was an average price in his experience, having worked since his student days in the nursery industry. His 2011 report noted, however, that the cost of pruning and associated mulching and/or fertilizing, watering, and of disposing of the dead trees was not included in his quote. [ 121 ] In his 2013 report, Mr. Fournier reduced the number of trees requiring replacement from 256 to 94 (damaged beyond repair or dead) and estimated the cost of their replacement, based on 2011 prices, at $13,813.

He then doubled this figure [$13,813 x 2 =$27,636] to guarantee the replacement trees for one growing season and to include the cost of removing dead trees and of preparing the soil for the new trees. He then added twice monthly watering for six months during two seasons at a cost of $6,480, and mulching/fertilizing and weeding at two visits per year for two years at $7,200, for total cost of $41,316. When asked if this price included removing the dead trees, he noted that all trees on the east side and in north-east quadrant had already been removed.

There would be no extra cost associated with removing stumps and root systems as one needs to dig the hole in any event for the replacement tree. The stumps and roots could be loaded in the same truck in which the new trees would be brought in. [ 122 ] Mr.

Fournier also included in his 2013 quote a cost for maintaining the damaged trees that did not require replacement (plus one large elm tree) based on watering those trees twice per month for one year, carrying out mulching, fertilizing, and weed control for two years and pruning for insect control and dormant season pruning of the affected elm tree, for an additional cost of $18,140. His total quote was $59,456, plus GST. [ 123 ] Again, Mr.

Fournier’s 2013 report used a replacement cost method of calculating the Plaintiffs’ damages, a quote, he stated, was based on his own tree farm business carrying out the work. He did not include any delivery costs, as he would expect trees could be obtained locally. He did not obtain quotes from other local tree farms. [ 124 ] Mr. Fournier testified that when he prepared his 2016 report, he had Mr. Davies’ expert report and had found the quotes it contained to be quite reasonable on a per-tree basis.

For the 86 trees his 2016 report indicated were dead, he used a quote from Aspen Lane Farm: supply: $8,342.25; planting: $2,782; bark mulch: $3885; fertilizer $420; water truck $462 for a total $14,429.75, which he stated included digging out the dead trees. I note, however, that his RFP did not mention digging out trees or preparing the soil for the new trees. Also, unlike his 2013 report, no provision was made for the ongoing maintenance of the replacement trees after planting. [ 125 ] As for the damaged trees that did not require replacement, Mr.

Fournier noted that Aspen Lane Farm charged $15 per foot for replacement trees. His 2016 report contained a computer screen shot from Kijiji advertising $10 per foot for locally-sourced trees. He used the average of these two prices ($12.50) to calculate damages for injured trees that he believed would survive. He calculated two years of lost growth due to the overspray in 198 trees: (reduced to 181 having found 17 dead onsite on his 2015 inspection). 181 damaged trees x $12.50 x 2 years lost growth produced a total of $4,525.

Adding this figure for lost growth of damaged trees to the $14,429 cost of replacing the dead trees came to a total in the range of $20,000. [ 126 ] In each of his three reports, Mr. Fournier used replacement value as the method of calculating the Plaintiffs’ damages caused by the overspray. In his 2016 report, he also valued the damage to trees he recommended not be replaced based on two seasons’ loss of average growth. However, he did note that a pure cost of replacement approach may be unreasonable when compared to the market value of the property. [ 127 ] While Mr.

Fournier’s 2016 report referred to having sent out an RFP to several tree supply and install companies, his report did not itemize how many requests were sent or to whom, and his report refers to only one quote having been received. Mr. Fournier cited by way of explanation the timing of his report in the middle of winter, yet I note that Mr. Davies was able to obtain several quotes in February of 2015. [ 128 ] The Plaintiffs submit that the quotes Mr. Davies obtained for tree replacement should be preferred over the single quote obtained in 2015 by Mr. Fournier.

The Plaintiffs argue that estimating the loss associated with the damaged trees on tree growth at $12.50 per foot per year is flawed as many surviving trees were pruned down after the overspray and are several feet shorter in 2015 than the tree heights Mr. Fournier estimated in 2011. [ 129 ] The Plaintiffs also seek to be fully compensated for the supply, delivery, and planting of the trees to replace the dead or missing trees and the trees in very poor condition.

They also seek the costs associated with stump grinding, removal and clean-up, supplying and planting replacement trees, and watering for two years at a total cost of $188,390 (based on the replacement of 245 trees) as set out at Table 9 of their written submission: Table 9 Firm or Company Cost Seven M Construction Supply & Plant $132,630 Stump grinding removal and clean up $14,870

Waterhaulics watering Year 1 $23,250 Waterhaulics watering Year 2 $17,640 Total $188,390 [ 130 ] Dividing this total by 245 trees results in a per tree cost of $768.94 which the Plaintiffs submit is not much higher than the costs noted in Mr. Fournier’s 2013 report which, according to counsel for the Plaintiffs, worked out to $664.13 per tree. [ 131 ] The Plaintiffs submit that the quotes obtained by Mr. Davies represent fairer estimates of replacement costs as the quotes he obtained cover the full range of work and equipment needed to replace the trees and maintain them for two years. However, Mr.

Davies also noted that costs have risen by 20 to 25% since his 2015 report and that GST should be added to the quoted figures. [ 132 ] In addition, the Plaintiffs seek the following special damages: chemical testing $ 369.60 Arbor Man invoice for quote 105.00 Millcreek Nursery invoice for quote: 393.75 Plaintiff’s 2012 work invoice: 13,470.00 Total: $14,338.35 [ 133 ] The Plaintiffs submit that as the last plantings in their shelterbelt occurred in 2007, the shelterbelt would have been relatively well-established by now, but for the Defendants’ negligence. The Plaintiffs described Mr.

Fournier’s method of calculating the lost years of growth on a “per-foot” basis as unorthodox and not accepted by arboricultural methodologies as presented in the literature Mr. Davies cited in his expert report. The Plaintiffs note that loss of enjoyment and amenities was assessed at $1,000 per tree in Kates for the period of time it would take for the 13 trees to reach the same height as those replaced. A similar amount was ordered based on $1,000 per tree in Hamel .

While in Kates , the Plaintiffs spent only one month per year in the property, the Plaintiffs are full-time residents and the hobby farm is their principal asset. Counsel for the Plaintiffs notes that what should have been a source of pride has turned into a salvage and pruning project for the last six years. They each seek damages of $25,000 for loss of amenities. [ 134 ] The Defendants note that every tree in the shelterbelt was originally obtained from neighbouring lands free of charge, and reflected the Plaintiffs’ preference for native trees, accustomed to the local soil and climate.

All tasks involved in planting and maintaining the trees were completed without cost, including sourcing water, dirt, and labour and equipment. The vast majority of the trees were under 8 feet and could be replaced by the Plaintiffs with little to no labour cost. [ 135 ] The Defendants submit that Mr. Davies’ replacement cost valuation cannot be relied on as his estimate of tree height is inflated as was found to be the case for his estimates of the number of trees requiring replacement in the particular row he was taken through in cross-examination.

He based his opinions on tree height entirely on the Plaintiffs’ estimates contained in the Plaintiffs’ Diagram, and not on his own independent measurements. Counsel for the Defendants pointed out that in the north side inside row, the Plaintiffs estimated tree heights of 15 to 25 feet and Mr. Davies was of the opinion that all 35 trees in that row required replacement. The measurements taken by Mr. Fournier supported by the photos in which he included a 7 foot measuring stick indicate their height to be considerably less at the time of the overspray.

He found that only six of the 38 trees in that row reached heights of over 12 feet at that time and only 10 reached heights of over 15 feet. [ 136 ] The Defendants maintain that Mr. Fournier adopted the more reasonable valuation approach to the damaged trees based on a per foot replacement cost. He identified white spruce, the same type of tree as those being replaced, as the appropriate replacement that could be sourced from neighbouring properties. He also obtained a quote from a commercial nursery based on his own measurements of each tree.

While the quote he obtained was for 84 trees, this number could be adjusted upward to reflect the number of trees the Court finds need replacement. [ 137 ] The Defendants note that the cost of replacement varies greatly depending on one’s approach, from:

i) nil if the trees were to be replaced from the same sources originally used; to ii) $1.79 per tree (adjusted for inflation) as suggested in the Alberta Agriculture Guide , which Mr. Davies recognized as authoritative, as he referenced it in his rebuttal expert report; to iii) $183.68 per tree based on the quote obtained from Mr.

Fournier (which should due to an mathematical error be amended to $189.19 based on Aspen Lane totals being $15,891.75, not $15,429.75); to iv) $784.95 per tree based on the Plaintiffs’ final argument. [ 138 ] The Defendants submit that one of the first three approaches above or a combination of them would be the most appropriate method of valuing replacement cost if the Court determines that this approach should be adopted over the loss in market value approach.

The fourth approach is not reasonable given the fact that the trees are not ornamental; they were not purchased from a commercial vendor; they were not uniform in height, shape or species; they were not pruned before the overspray; and they continued to act as a shelterbelt after the overspray. [ 139 ] As for the damaged trees, the Defendants argued against any compensation being awarded as they will continue to grow and in time, the overspray damage will no longer be observable.

If the Court sees fit to award compensation for damaged trees, the Defendants submit that it should not be based on replacement value but (using the method adopted by Mr. Fournier) by determining the price per foot, which averaged out to $12.50 and applying this cost to two feet of growth on the damaged trees.

[ 140 ] I am of the view that in determining the proper approach to valuation, there should be an amount reflecting reasonable costs associated with the following components to a tree replacement program for the 209 trees I have found require replacement: 1. The cost of clearing and hauling away dead trees and trees in very poor condition; 2. The cost of supplying and planting trees to replace those that have died and have been removed by the Plaintiffs, and those that are dead or are in poor condition, but remain in the shelterbelt; 3. The cost of maintaining the newly planted trees for two seasons; and 4.

The loss of amenities associated with the loss of growth of the damaged trees that are functioning within the shelterbelt. Clearing and hauling away dead trees and trees in very poor condition [ 141 ] Mr. Davies obtained two quot

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