Nordli v Gormley, 2021 ABQB 590

Court of Queen’s Bench of Alberta Citation: Nordli v Gormley, 2021 ABQB 590 Date: 20210722 Docket: 2003 13261 Registry: Edmonton Between: Tania Catherine Nordli Plaintiff/Applicant - and - Eric Gormley and Raquel Feroe Defendants/Respondents _______________________________________________________ Oral Reasons for Decision on Permanent Restraining Order of the Honourable Mr. Justice Eric F.

Macklin _______________________________________________________ Introduction and Procedural Background [ 1 ] The Applicant and the Respondents live approximately 500 metres away from each other in the Riverdale community in the City of Edmonton. [ 2 ] On August 25, 2020, the Applicant obtained an ex parte Restraining Order Without Notice restraining the Respondents from being within 200 metres of the Applicant’s residence and from being within 100 metres of the Applicant anywhere in the Province of Alberta. [ 3 ] On September 30, 2020, a renewal of the Restraining Order was granted restraining the Respondents from being within 50 metres of the Applicant’s residence or from being within 100 metres of the Applicant anywhere else in the Province of Alberta.

The renewal was to remain in effect to December 17, 2020 for a viva voce hearing on that date.

[ 4 ] The hearing scheduled for December 17, 2020 was adjourned on that date and the Restraining Order was renewed again for an indefinite period pending the scheduling of a new date for the viva voce hearing.

This renewal varied the earlier renewal of September 30, 2020 in that it restrained the Respondents from being within 25 metres of the Applicant’s residence or from being within 25 metres of the Applicant anywhere else in the Province of Alberta. [ 5 ] On March 18, 2021, an Oral Hearing Order was issued directing a two-day oral hearing to determine the substantial issue of whether or not the interim Restraining Order should become permanent and the specific issue of whether the Respondents trespassed or intimidated, harassed or threatened the Applicant. It also set out certain procedural parameters.

The hearing took place on July 22, 2021. Evidence Affidavits filed by the Applicant [ 6 ] In her Affidavit sworn on August 24, 2020 in support of her ex parte application, Tania Catherine Nordli complained that since she moved into the Riverdale community about 13 years ago, the Respondents have consistently claimed that she does not own her property. [ 7 ] Dr. Nordli then relates historical events to support her application. She states that in 2013, the Respondents trespassed on her property where they walked their dog, off leash, and left dog droppings in her yard.

She then says that there was an incident in the summer of 2016 when she was taking a photograph of an unattended dog in the river valley when the Respondent Gormley ran up to her and twisted her arm and wrist. She also refers to a completely unrelated event in the summer of 2016 when Mr. Gormley was apparently escorted away from the Cloverdale Bridge by the police where he was protesting. [ 8 ] Dr. Nordli then relates the events of August 18, 2020 prompting her application. She says that Mr.

Gormley came onto her property and within 2 feet of her face when she told him to respect her property and to call the city for confirmation of her property line. She then says that both Respondents approached her property from a closed trail. Mr. Gormley tied a rope to her fence which she asked him to remove. He refused. She then complains that the Respondents’ Rottweiler dog was unrestrained near her property line and her seven-year-old son. The Respondent Feroe then called her a “douchebag” in front of her seven-year-old son and shouted out at her that she was “out of control”. According to Dr. Nordli, Dr.

Feroe continued to repeat this comment and stated that the property was not hers and then complained that Dr. Nordli had “littered on the public space”. [ 9 ] Dr. Nordli then states that on August 23, 2020, she found that her fence was vandalized and cut on the side that faces a trail that leads to where the Respondents live. [ 10 ] Kenneth L.

Cantor swore an affidavit on September 22, 2020 stating that he disagreed with the affidavits filed by, and on behalf of, the Respondents and then states that the “Applicant should be granted a permanent restraining order against both Respondents”. [ 11 ] He states in his affidavit, as his reason for supporting the Applicant, that he has personal knowledge of certain information that is relevant. He then relates the information he considers relevant. He was wrong. None of it was relevant. Affidavits filed by the Respondents [ 12 ] Eric Gormley and Raquel Feroe swore a joint affidavit on September 14, 2020.

They deny all of the allegations made by the Applicant. They specifically deny being on the Applicant’s property on August 18, 2020. They deny ever tying a rope to the Applicant’s fence or vandalizing her fence at any time. The Respondent Gormley denies twisting her arm or wrist as she alleged occurred in 2016. [ 13 ] The Respondents deny having trespassed on the Applicant’s property or ever leaving dog droppings on the property in 2013 or ever.

They both deny ever stating that the Applicant’s property was not her property or that they have ever told others that she does not own her property. [ 14 ] The Respondents provide their own accounts of the offending incidents alleged by the Applicant to have occurred, which are clearly contrary to the Applicant’s recitation of what occurred.

In concluding their affidavit, the Respondents say that they have had very little to do with the Applicant in the last seven years and are no threat to her property, her well-being or that of her family. [ 15 ] Rhea March, Deborah Williams, John Young, Katherine Colleen Moore-Kilgannon and Terry Anderson all swore affidavits supporting the position of the Respondents. Ms. March, Ms. Williams, Mr. Young, Ms. Moore-Kilgannon and Mr. Anderson aver to negative personal interactions they had with the Applicant at some point in the distant past.

They are all irrelevant. [ 16 ] Loraine Johnson and Lorna Thomas are the only “independent” witnesses to the events of August 18, 2020. They went down to a beach area located near the Applicant’s property. The Respondent Gormley was with them and the Respondent Feroe had left the area for a while to pick rocks. It was their intention to each get into flotation devices and float in the river. When they reached the beach area, they fastened a rope on the flotation devices to a metal fence pole which they both stated had fallen over on to public property. [ 17 ] Ms. Johnson and Ms.

Thomas then got into the floatation devices and began floating in the river. They both say that the Applicant came running down the bank and was yelling at them though they could not hear what she was saying. Ms. Thomas thought that she was also someone who was enjoying the beach and because she did not hear what the Applicant had said, she waved a stick that she was holding and said something playful like “I wave my magic wand”. The Applicant said something about her being disrespectful and then untied the rope which released the flotation devices causing Ms. Johnson and Ms. Thomas to begin floating downstream.

They were able to paddle back to shore.

[ 18 ] Ms. Johnson and Ms. Thomas both saw the Respondents speak with the Applicant and particularly noted that Dr. Feroe had a heated discussion with her. Evidence at the hearing [ 19 ] The Applicant introduced a series of short video recordings taken by her on August 18, 2020. They show the Respondent Gormley apparently filming the Applicant with his phone while the Applicant confronts him about being on her property. She is telling him that her property line goes down as far as the highwater mark on the beach while the Respondent attempts to show her where he believed the property line extended.

She clearly was not prepared to listen to him and directed him to “respect” her property line. One of the video recordings also depicted the Respondent Feroe speaking loudly in the direction of the Applicant but it was not possible to make out what she was saying. It also appears from the video recordings that the fence that had been erected by the Applicant was lying on the ground as described by Ms. Johnson and Ms.

Thomas. [ 20 ] In her testimony during the hearing, the Applicant testified that although she only referred to the three incidents that occurred in 2013, 2016 and 2020 in her affidavit, there were many other instances of harassment by the Respondents prior to August 18, 2020. However, she was unable to specify during her testimony as to when those incidents occurred though she did say they included times when the Respondents’ dog was off leash.

She did state that there had been no incidents between her and the Respondents since the first Interim Restraining Order was granted on August 25, 2020. [ 21 ] The Applicant introduced a City of Edmonton diagram showing that her property extends to the water. She indicated her belief that it extended as far as the watermark whether it was high or low. When the water was high, it extended up to her fence and, accordingly, her fence would be at her property line. When the water was low, her property extended beyond her fence by about 15 feet to the watermark.

That is, while the property may have been outside of her fenced area, it was still to be considered as her property. [ 22 ] The Respondents introduced an audio recording of a voicemail left on their phone by the Applicant on August 18, 2020 at 3:51 PM, shortly after the incident occurred. The recording stated as follows: Hi Rocky, this is Tania. I just wanted to say while I respect you as a human being and would like to be friends, I am feeling very upset that you called me a douchebag, especially in front of my seven-year-old and other people and I ask that you act and speak more respectfully.

Thank you, I wish you a good day. Goodbye. [ 23 ] In testimony supplementing her affidavit evidence, Lorna Thomas stated that she and Lorraine Johnson had approached the beach area on August 18, 2020 intending to use flotation devices in the water and enjoy the hot summer day. After blowing up the flotation devices, she tied a rope to a fence pole that had fallen over and which was to serve as a tether for the flotation devices to be used by the two of them. The two flotation devices were also tethered together and collectively tethered to the fence pole.

While out on the river, she indicated that she noticed the Applicant on the beach who was saying something to them. She did not know what was being said (though she wears hearing aids, she was not wearing them while on the flotation device) and waved the stick she was holding in the direction of the woman and said something like “I wave my magic wand”. She testified that she said this in jest and she was simply enjoying herself on the water. She then saw the Applicant untie the tethered rope from the fence pole and let it go. She testified that she was shocked and immediately felt threatened.

She did not know how far the devices may have drifted and she used the stick she was holding as a paddle to try to get back to shore. At no time did she see the rope that had been tied to the fence pole ever come into contact with anybody on the shore before it was untied by the Applicant. [ 24 ] Lorraine Johnson also gave evidence supplementing her affidavit. She testified that they tied the rope to a fence pole outside of the Applicant’s property and which had fallen over. She stated that she first noticed the Applicant when she was on her flotation device approximately 8 feet from the shore.

She saw the Applicant untie the rope and drop it, at which point she felt immediately threatened and endangered. She then saw the Respondent Gormley take hold of the rope. She testified that she never saw anyone trespass on the Applicant’s property and confirmed that the fence pole that had fallen over was not on the Applicant’s property.

She also did not see the tethered rope come into contact with anyone on the beach before it was untied by the Applicant. [ 25 ] The Respondents confirmed in their evidence that none of the incidents alleged by the Applicant in her affidavit and testimony that occurred prior to August 18, 2020 occurred in the manner described by the Applicant. They denied ever intentionally trespassing on the Applicant’s property, leaving dog droppings on it or causing any damage. [ 26 ] Regarding the incident of August 18, 2020, they denied ever being on the property of the Applicant.

As shown in the video submitted by the Applicant, the Respondent Gormley was attempting to show the Applicant where he understood the property line to be. They both testified to seeing the Applicant approaching the beach area and heard her say something like “what would you do if I untied this rope?” The Applicant was then heard to say something like “you have disrespected me and you have disrespected my property.” They then witnessed the Applicant untie the rope attached to the fallen fence pole and drop it to the ground.

The Respondent Gormley was able to move quickly and pick up the rope and hold it. [ 27 ] Upon witnessing this incident, the Respondent Feroe testified that she called the Applicant a “f…ing douchebag”. She acknowledged that she had said something horrible and she admitted that she was both ashamed and embarrassed. She testified that she just “lost it” upon witnessing what the Applicant had done. She apologized at the time to some of those who were still on the beach and heard her and she also apologized to the Applicant during one of her Court appearances relating to this matter. Discussion

[ 28 ] This Court draws its jurisdiction to grant a common law restraining order by virtue of the Judicature Act , ss 8 and 16(1)(c). In granting an injunction, a Court must be satisfied in all of the circumstances that doing so will do justice between the parties. The applicant must establish that the respondents’ harassing, intimidating, molesting, threatening or violent behaviour poses a legitimate risk of harm to the applicant, a person under the applicant’s care or the applicant’s property.

The applicant must demonstrate a reasonably held and legitimate fear for their safety, the safety of any other person under their care or the safety of their property: RP v RV , 2012 ABQB 353 , at paras 20-33 . [ 29 ] The Applicant believes that her property extends right to the river, which includes the trail running along the disputed beach property adjacent to the river. The Respondents acknowledged that they had used the trail and beach, as have a lot of people in the area. For a considerable period of time, they did not believe that the Applicant’s property did include the trail or the beach.

Without having some form of evidentiary confirmation of ownership, it would have been easy for a casual user to believe that the Applicant’s property extended only as far as her fence and not beyond to include the trail and beach. Regardless, the Respondents now appear to acknowledge that the Applicant’s property extends as far as the water. [ 30 ] Even acknowledging that her property line extends as far as the water, the Respondents deny ever being on any of the beach or other property owned by the Applicant on the day in question.

They also believed that the fallen fence and, particularly the fence pole to which the rope was tied, was outside of the Applicant’s property lines. That is, while the fence was intended to define the property line, it had fallen over and it was that portion of it that was outside of the property line to which the rope was tethered. It is also clear from the evidence that it was not the Respondent Gormley who tied the rope to the fence pole but rather Ms. Thomas or Ms.

Johnson. [ 31 ] I am satisfied from the testimony of all of the witnesses at this hearing that the Respondents did not intentionally trespass on the property of the Applicant on the day in question or any other day after the Applicant erected the fence on her property in 2013.

That is, if they did trespass, it was at a time when they did not know how far the Applicant’s property extended and they would have then done so inadvertently. [ 32 ] With respect to the issue of whether the Respondents intimidated, harassed or threatened the Applicant, the parties have first given contrary evidence of the events that supposedly occurred in 2013 and 2016.

I do not believe any of that historical evidence to be relevant to the incident that prompted this action which occurred on August 18, 2020 nor do I believe it is relevant to a consideration of whether I should grant a Permanent Restraining Order. Further, I do not accept the Applicant’s testimony that there were numerous other incidents of supposed harassment.

They were not included in her affidavit though two incidents that allegedly occurred in 2013 and 2016 were included. [ 33 ] Having viewed the video recordings of the incident of August 18, 2020, I am not satisfied that there was any intimidation, harassment or threats to the Applicant. There was some yelling and strong language used by the Respondent Feroe which was highly inappropriate but clearly made in the heat of the moment after the Applicant untied flotation devices causing friends of the Respondents to begin drifting down the river.

Regardless of whether the rope holding the flotation devices was tied to a fence on the Applicant’s property or not, the action of the Applicant in untying that rope was appalling and, indeed, the Applicant and the two people in the flotation devices were very lucky that the consequences of the Applicant’s actions were not more serious. For her

part in the events of August 18, 2020, the Applicant has seemingly shown no remorse whereas the Respondent Feroe acknowledged saying something horrible and felt ashamed and embarrassed. She apologized. [ 34 ] The Applicant has said that the fence on her property was vandalized around August 23, 2020 and wants the Court to draw the inference that it was vandalized by the Respondents. I draw no such inference.

There is no evidence before me to suggest that they did so nor is there any evidence before me to suggest that the Respondents ever damaged or threatened to damage the Applicant’s property. [ 35 ] It is important to note at this juncture that this Court relies on parties appearing before it to be completely candid and forthcoming with all relevant facts when being asked to consider granting an ex parte order such as the Interim Restraining Order granted on August 25, 2020.

In making her application, the Applicant failed to disclose her own behaviour in untying the tethered rope securing the flotation devices and preventing them from floating downstream. Not only was that information clearly relevant, it may well have been a factor that would have been considered in determining whether the Interim Restraining Order should have been granted. [ 36 ] While the Applicant may have an enforceable right with respect to persons that may be on her property, I do not accept that the Respondents intentionally trespassed on property they knew to belong to the Applicant.

The Applicant has failed to demonstrate a legitimate risk that the Respondents will intentionally trespass on her property in the future. I would note the information provided at the conclusion of the hearing that the Respondents no longer have their dog or any dog. The Applicant has also failed to establish that the Respondents, or either of them, will harass, intimidate, molest or threaten the Applicant, her family or her property. Finally, she has failed to demonstrate a reasonably held and legitimate fear for her safety, the safety of any other person under her care or the safety of her property.

Indeed, the contents and the tone used in the voicemail she left for the Respondent Feroe after the incident in question belies any such suggestion. [ 37 ] The Restraining Order Without Notice was granted on August 25, 2020 and it, or its renewed forms, has been in place until now, almost 11 months later. I am satisfied that the Respondents have and will respect the boundaries of the Applicant’s property and will not intentionally trespass on her property in the future.

I am further satisfied that they will not harass, intimidate, molest or threaten the Applicant, her family or her property. [ 38 ] The conduct of the Respondents in this case does not justify the granting of a permanent restraining order in favour of the Applicant. It would not do justice between the parties. [ 39 ] The application for a Permanent Restraining Order or the continuation of the existing Restraining Order for any period beyond today is dismissed. The Restraining Order currently in place is vacated.

Heard on the 22 nd day of July, 2021. Oral Decision read on the 22 nd day of July, 2021. Dated at the City of Edmonton, Alberta this 27 th day of July, 2021. Eric F. Macklin J.C.Q.B.A. Appearances: Applicant was Self-represented (Assisted by Kenneth Cantor) Andrew Dirgo of Fix and Smith for the Respondents