Gibson v. F.K. Developments Ltd., 2017 BCSC 2153

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Gibson v. F.K. Developments Ltd. , 2017 BCSC 2153 Date: 20171124 Docket: 14-1052 Registry: Victoria Between: Geraldean Elizabeth Gibson Plaintiff And: F.K. Developments Ltd., Fritz G. Karger John Doe Tree Cutting Company, Richard Roe Defendants Before: The Honourable Justice Punnett Reasons for Judgment Counsel for the Plaintiff: C.L. Pagé Counsel for the Defendants: F. K. Developments Ltd. and Fritz G. Karger E.M. Regehr Place and Date of Trial: Victoria, B.C. September 18-21, 2017 Place and Date of Judgment: Victoria, B.C. November 24, 2017 Introduction [ 1 ] At a

summary trial held in December 2016 the defendants F.K. Developments Ltd. and Fritz G. Karger were found liable in trespass and conversion for topping a tree on real property owned by the plaintiff. These reasons address the assessment of damages. Background [ 2 ] In 1998 the plaintiff and her husband purchased a residence in a residential neighbourhood on the east side of Triangle Mountain located at 3376 Haida Drive, Colwood, B.C. They purchased this specific property in part because of its natural environment and wild life.

The homes behind the plaintiff’s property are considerably higher than the homes on Haida Drive. At the back of the plaintiff’s property were four mature Douglas Fir trees, providing shade and privacy to the plaintiff’s back yard. Those trees were higher than the homes on the street above. [ 3 ] The defendants F.K. Developments Ltd. and Mr. Karger owned the lands above and behind the plaintiff’s property. Mr. Karger was a developer and eventually developed an area above the plaintiff’s property known as Vista Estates.

He also became the owner of one of the homes immediately behind the plaintiff. [ 4 ] Shortly after her move to Colwood, the plaintiff was elected mayor. She served a term from 1999-2002. In her capacity as mayor, matters related to developments in Colwood fell within the purview of her and City Council. She said that as mayor she was perceived as “anti-development”, something she denies. Mr. Karger apparently was of that view and when she ran for office again, Mr.

Karger emailed her criticizing her views and personally attacking her including making allegations respecting her psychological health. [ 5 ] In 2006 the plaintiff’s husband died. As their yard was important to him she has continued to maintain it in her late husband’s memory. [ 6 ] Mr. Karger originally owned the subdivision lands above the plaintiff’s property and at some point before or near 2010 it was transferred to the corporate defendant. Mr. Karger remained the company president until 2015. The corporate defendant in 2010 or 2011 commenced development of the subdivision known as Vista Estates.

Those lands are at an elevation substantially above the plaintiff’s

property and as a result there is a view over the plaintiff’s lot and her property’s common area extending to the ocean. The tree in question blocked a portion of that view and the view from the home of Mr. Karger located at 3419 Karger Terrace. [ 7 ] In February of 2011 Mr. Karger approached the plaintiff and asked for her permission to trim or top the trees in her backyard. She did not give him permission but suggested he return in the spring to show her what he intended to do. He never returned. [ 8 ] Unbeknownst to the plaintiff at some time prior to July 9, 2012 Mr.

Karger began to reside at 3419 Karger Terrace. The plaintiff only became aware he was living there around November 2012. [ 9 ] Mr. Karger did not testify at this trial due to his ill health. The defence did call Mr. Toby Summers who is the principal of a corporation called Skana Developments Ltd. which was engaged in a joint venture with F.K. Developments Ltd. in the development of Vista Estates. Mr. Summers became the president and sole shareholder of F.K. Developments Ltd. in late 2015. [ 10 ] According to his testimony, a few days prior to September 8, 2012, Mr. Karger instructed Mr.

Summers to take action with respect to the plaintiff's tree allegedly because it posed a danger to Mr. Karger’s home. Mr. Summers testified that the authority to cut the plaintiff's tree belonged to F.K. Developments Ltd., but could not explain why the company would be concerned about any alleged danger to the property at 3419 Karger Terrace as the Corporation did not own that property. [ 11 ] Mr. Summers testified that because this decision devolved to him, he provided the instructions to Mr. Parsons who is a tree cutter from Eager Beaver Tree Service. Mr.

Summers testified that on Friday, September 7, 2012, he showed Mr. Parsons which tree was to be cut the following morning. Mr. Parsons was instructed to cut the plaintiff's tree that was furthest from the Karger's residence at 3419 Karger Terrace. Mr. Summers testified that he instructed Mr. Parsons to take the "sail" off the tree, and confirmed that he did not specify how much of the tree was to be removed. He further testified that the sail meant the portion of the tree that was caught by the wind. Although Mr.

Summers testified that he thought he had pictures of the tree blowing in the wind, he did not disclose the pictures in the course of the litigation. [ 12 ] It is not in issue that on September 8, 2012 F.K. Developments Ltd. and Mr. Karger instructed their agents to enter upon the plaintiff's property and to cut at least one of the plaintiff's large fir trees. Those two defendants have also admitted that the other previous unnamed defendants were acting on their instructions and they accept responsibility for them. As a result, the unnamed defendant contractors have not taken

part in this action. The defendants were also aware that the plaintiff and her neighbours would be opposed to the proposed cutting. [ 13 ] Early on the morning of Saturday, September 8, 2012 then counsel for the defendants (not counsel before me) based on instructions from Mr. Summers on behalf of the defendants, came to the home of the plaintiff and two of her neighbours. With him was an individual who video recorded his attendance. He delivered documents to the residents at 3378, 3376 and 3374 Haida Drive, advising that F.K.

Developments Ltd. was intending to exercise its alleged right to cut the trees under the Statutory Building Scheme registered against the properties. The affected properties were the plaintiff’s and the properties on either side of her property. At each residence he left a copy of the Statutory Building Scheme and his business card. The only home where someone answered the door was the home of Mr. Rhode and Ms.

Smith, the plaintiff’s neighbours. [ 14 ] At the same time a mobile crane and falling crew were setting up their equipment at the street above the plaintiff’s and the Smith and Rhode’s lots and shortly thereafter that crew commenced removing the top of the tree located on the plaintiff's property. [ 15 ] The plaintiff realized what was occurring, and from her yard, pleaded with the defendants' crew to stop what they were doing so she could obtain legal advice. Her neighbour Ms. Smith also indicated her opposition to what was occurring by standing under the tree and calling to the fallers.

The cameraman video recorded them. The crew however ignored their protests and proceeded to cut down a portion of the fir tree. [ 16 ] The police were called. Then counsel for the defendants informed the police (incorrectly) that the cutting was being legally conducted pursuant to the terms of a Statutory Building Scheme that the plaintiff had agreed to when she and her husband purchased the property. He indicated that trimming would continue and informed the police that this was a civil matter and they risked being sued if they intervened.

Shortly thereafter the City of Colwood's bylaw officer and its planning officer attended as a result of calls from the RCMP. The interactions between counsel, the police and the representatives from the City of Colwood were video recorded as well. It was only after the intervention of the City officials that the defendants agreed to cease cutting. [ 17 ] By then the tree had been cut back to approximately 45 percent of its former size with 95 percent of its living branches removed.

The plaintiff’s expert, arborist Verna Mumby, opined that the tree would have to be removed. [ 18 ] It also became apparent that the defendants intended to trim other trees as well in order to improve the views from Vista Estates, as F.K. Developments Ltd. prepared a memorandum of understanding which the defendants presented to the City of Colwood two days later on September 10. The memorandum relates to the Statutory Building Scheme in question as well as two other building schemes. The

preamble states that the Schemes contain a clause giving the developer the right to trim and cut trees. [ 19 ] The memorandum also states: And whereas the attached [Statutory Building Scheme] contains a clause giving the Developer the right to trim and cut trees on the properties set out in Appendix “B” attached hereto in order to maintain unobstructed views enjoyed by the other properties; … And Whereas F.K. Developments Ltd. is in the process of refinancing within four (4) weeks, its properties on Karger Terrace and must have the views of these two properties unobstructed as foreseen and contemplated and as required by all three (3) [Statutory Building Schemes] attached as Appendix “A”;

And Whereas any delay whatsoever of the Developer proceeding in securing the views for this refinancing will cause irreparable damage and potential bankruptcy to the Developer and if deemed reparable will result in extensive damages; … [ 20 ] The

schedule listing the Statutory Building Schemes affected included the Statutory Building Scheme affecting the plaintiff’s property. There is absolutely no mention in the memorandum of any tree or trees posing a danger to anyone. The City of Colwood refused to sign the memorandum. Despite the wording of the memorandum Mr. Summers denied F.K. Developments Ltd. was intending to cut more trees from the plaintiff’s property pursuant to that memorandum. [ 21 ] The City of Colwood did not agree to permit the continued cutting of the trees and in a letter from their solicitors, dated September 11, 2012 to F.K.

Developments Ltd. and Mr. Karger, the City of Colwood informed them that their tree cutting was in contravention of the Colwood Official Community Plan Bylaw No. 999, 2008 and that they were to cease cutting down trees on the lands in question. [ 22 ] The plaintiff testified that she remained on edge, and was certain that the defendants would be coming after her trees again. She explained that even before the September 8, 2012 incident there were mysterious half-sawn, half-broken branches that would appear in her yard, and the branches that appeared increased exponentially after 2011.

She further testified that she had heard that Mr. Karger would top the trees in Karger Park, above and near her property. Mr. Karger's historical tree topping in Karger Park was confirmed by Mr. Summers and a document provided by F.K. Developments Ltd.’s previous counsel. [ 23 ] The plaintiff seeks to rely on evidence of subsequent events involving a June 2014 proposal , by Skana Developments Ltd. to the Parks, Recreation and Culture Committee of the City of Colwood. Included in his proposal was a biologist's report with an attached map of an area that was proposed for tree cutting.

The map contained an attachment titled "Attachment II - Tree Trim Areas." The footnote of the map stated, “[t]rees to be trimmed are within the red polygon " and the plaintiff's property was among the private property encompassed in the “red polygon" area . [ 24 ] Mr. Summers testified that the biologist who prepared the report drew the protrusion from the red polygon to include the plaintiff’s property. Mr. Summers confirmed that his corporation Skana Developments Ltd. commissioned the report. In 2015 Mr. Summers approached Ms.

Smith and her husband advising that the trees on the plaintiff's side of their common property were “dangerous”. Mr. Summers threatened them that they would be without insurance if one of the trees were to fall and suggested that harm could occur to others if the plaintiff's trees were not removed. [ 25 ] Both the plaintiff and her neighbour Ms. Smith testified that they are constantly vigilant and nervous that this tree cutting will resume. Although Ms. Smith says that she was somewhat appeased after she received an

interpretation of the Statutory Building Scheme from her lawyer, she still worries about the threat to her trees when she leaves her property. The plaintiff is even more fearful and describes feelings of panic whenever she hears Mr. Karger's leaf blower or chainsaws at his home. [ 26 ] Ms. Smith testified that she and another neighbour wrote a letter to the City of Colwood voicing their disapproval of the proposal.

After receipt of this letter, the City of Colwood altered their recommendations to recognize the concerns of the residents and there were no recommendations made that the private property be considered for tree trimming. [ 27 ] According to the testimony of Ms. Smith, approximately one year later, Ms. Smith and her husband had approached Mr. Karger after a tree in her yard failed and fell. She wanted to obtain his approval to enter on his land to remove dead trees from her property. She testified that Mr. Karger insisted that he and his family had a right to views from all levels of their properties. Ms.

Smith and her husband advised Mr. Karger that they did not want to talk about the trees on the plaintiff's side of the property and when she refused to entertain his discussion, he stated to them "see you in court". She took this as a direct threat of litigation and engaged her own lawyer who provided a legal opinion to Mr. Karger that the Statutory Building Scheme respecting her and the plaintiff’s properties did not permit the cutting sought by Mr. Karger. [ 28 ] The subdivision is now complete. The eighteen lots owned by F.K.

Developments Ltd. were all sold by August 16, 2016, and the combined gross sales price of the lots was $5,768,633. There is no evidence whether the development was profitable to the defendants. [ 29 ] The plaintiff submits that the post-trespass events that occurred can be considered by this court, relying on Whiten v. Pilot Insurance Co., 2002 SCC 18 . She argues the events are evidence that the defendants kept up the pressure to come back and “finish the job” by cutting down the remaining trees.

The defendants on the other hand argue that conduct after the trespass for which damages are sought is not relevant to the assessment of damages. [ 30 ] Whiten involved a failure by an insurer to indemnify the plaintiff under a policy of insurance, a refusal to indemnify that continued. As the trespass in this case was not continuous I do not accept the plaintiff’s submission that after-the-fact conduct is relevant in this case. In addition, Skana Developments Ltd., who was in a joint venture with F.K.

Developments Ltd. but is not a party to this action, made the application to Colwood upon which the plaintiff seeks to rely. Further, the evidence respecting Mr. Karger’s and Mr. Summers’ interactions is also not relevant as Ms. Smith is not a party to this claim. Finally, no tortious conduct after the trespass was pleaded nor was a separate claim made.

For these reasons I do not consider such post-trespass events as relevant to the assessment of damages. [ 31 ] The Statutory Building Scheme relied on by the defendants as authority for their actions did not authorize the defendants to trim the trees on the plaintiff’s property. At the

summary trial I concluded: 54. The defendants also submit the tree in question required removal for reasons of safety. In light of the lack of any evidence that the tree was a danger and the evidence that their true reason for cutting was to secure a better view for those above I do not accept their belated justification for their actions based on the alleged poor health of the tree(

s) and the alleged danger they posed. Indeed the only evidence before the court is that the trees were healthy. In addition the manner of cutting based on the expert assessment was not to secure the health and stability of the trees but was a clear cut of the offending tree to ground level of the lot above to maximize the view for the defendant’s [Karger’s] property.

55. I should note as well that the manner in which the tree cutting proceeded was designed to give as little notice as possible to the SBS owners in order to prevent them from interfering. It is disputed whether there was [an] earlier more general notice that the trees would be cut. The defendants have not proven such was given and the [plaintiff denies it was given]. In any event even the defendants apparently thought there was an issue of notice hence their lawyer attending just prior to the cutting of the tree purportedly to give notice. Such notice was in name only.

Attending to give notice while at the same time setting up equipment to proceed with the cutting was in practical terms no notice. The manner in which this action was taken aside from its lack of legal authorization does no credit to those involved. 56. The defendants also suggest that the corporate defendant had an honest belief that implied consent had been given. [As the evidence does not establish such] I do not find that to be the case 57.

The defendants also submit that in relying on the SBS that they believed gave them the right to proceed as they did, then in doing so they proceeded by way of a colour of right and therefore are not liable. … As noted earlier that reading of the SBS is clearly wrong. The question is does that erroneous

interpretation of the SBS provide them with a defence, particularly where they apparently relied on legal advice respecting that

interpretation. 58. As stated in [ R. v. DeMarco, [1973] O.J. No. 533 at para. 8] : … “the term ‘colour of right’ generally, although not exclusively refers to a situation where there is an assertion of a proprietary or possessory right … One who is honestly asserting what he believes to be an honest claim cannot be said to act "without colour of right", even though it may be unfounded in law or in fact … The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done …” 59.

The plain reading of the Statutory Building Scheme makes clear that it did not clothe the defendant corporation [or its agents] with the right to do what was done. The defendants were clearly aware that they would be entering upon the lands of the plaintiff and removing a tree on those lands. When that plain reading is combined with the manner in which they gave "notice” followed by the immediate cutting of the tree, I do not accept that on the facts they had an honest belief.

The manner in which they proceeded was, in my opinion, a calculated step, taken knowing full well the owners would object, to proceed in a manner designed to avoid any legal objections being given time to be addressed. 60. As a result I declare the defendants F.K. Developments Ltd. and Fritz G. Karger are liable to the plaintiff in trespass and conversion as a result of their actions on September 8, 2012. [Emphasis added.] Position of the Plaintiff [ 32 ] The plaintiff seeks general damages of $25,000, $14,250 in special damages, $15,000 in aggravated damages and $45,000 in punitive damages.

Position of the Defendants [ 33 ] The defendants now concede that the trespass was not purely accidental and that their conduct attracts a compensatory award of damages that includes damages for the loss of use and enjoyment of the tree. With respect to the quantification of damages they rely on the “Trunk Formula Method” used by the plaintiff’s expert, Verna Mumby, to calculate the compensatory damages that are justified and they accept that expert’s estimate of other costs arising from the removal of the tree.

They therefore accept responsibility for $9,100 for the damages for loss of use and enjoyment, $650 to have the trunk removed and $4,500 for the cost of future maintenance of the health of the adjacent tree for a total of $14,250 for the plaintiff’s loss. In doing so they submit that satisfies both the plaintiff’s claim for general damages and special damages. [ 34 ] The defendants do not challenge this court’s finding that the manner in which the defendants trespassed did no credit to anyone and was motivated by a desire of the defendants to improve the views from the subdivision and from Mr. Karger’s residence.

They submit there should be no award for aggravated damages, or, in the alternative, that any such award should be modest. [ 35 ] With respect to the claim for punitive damages the defendants submit the suggested damages of $9,100 for a single tree is a sufficiently high award to serve the purposes of punitive damages and as a result no punitive damages should be awarded. Discussion General and Special Damages [ 36 ] The plaintiff separates her damages claim for general damages from her claim for special damages.

Her general damage claim is based on her claim to loss of privacy, shade, seclusion and the “violation of her sanctity in her own backyard.” [ 37 ] The plaintiff’s backyard had a particular importance to her. It was in

part its privacy that motivated her and her late husband to purchase the property. It is where he spent his last months. The cutting of the tree did cause a partial loss of privacy. As noted earlier given there were only four trees, the loss of one is significant. It is the impact of the trespass and tree removal that must be considered when assessing damages.

[38] Clearly it is not feasible to replace the tree in question. As a result, any damage assessment must be based on what is reasonablein the circumstances. [39] The plaintiff seeks special damages based on the expert report of the arborist Verna Mumby who used the Trunk FormulaMethod to assess the plaintiff’s claim. As noted earlier the defendants acknowledge those calculations, however they submit that theTrunk Formula Method of assessment of the plaintiff’s loss overlaps as between general and special damages. [40] The Trunk Formula Method is a recognized method for assessing tree value.

The report of the arborist incorporates the TrunkFormula Factors considered in appraising the tree. Those factors include its placement, location, species, replacement tree size, cost andthe like. It does not comment on factors such as privacy. However, the defendants submit that the Trunk Formula Method for assessmentnot only includes the removal cost of the tree and the cost of maintaining the health of an adjacent tree but specifically considers thelocation, species and condition of the tree and in doing so addresses the amenity value of the tree to the plaintiff. [41] In Ovens v.

Kirkman et al, 2006 BCSC 394, the court relied on the Trunk Formula Method when assessing compensatorydamages for the loss of a tree. In Ovens the corners of the parties’ properties touched each other and the defendants trespassed by hiringa faller to top three mature trees on the plaintiff’s property. The trees were 80 to 100 feet high and after topping the remaining stumpswere 20-40 feet high. The topping however had destroyed the trees and they had to be removed.

The plaintiff was sensitive to sunlightand the loss of 60 percent of her property’s shade coverage meant as a result she rarely spent time in her garden and some of her shade-loving plants had died. [42] The expert called by the plaintiff in Ovens relied on the Trunk Formula Method which the trial judge Macaulay J. described asfollows: [35] The approach to assessing damages for the loss of mature trees is well established. It would be prohibitively expensive to replacethe three trees with comparable growth Douglas fir trees.

Accordingly, the arborist calculated the value of the lost trees using the TrunkFormula Method. That formula is based on the cost of purchasing and installing the largest commercially available transplantable treeplus an increase in value due to the larger size of the original trees. The values are then adjusted to reflect amenity factors such asspecies, condition and landscape location. Under the heading landscape location, the arborist considered the specific amenity factors thatI have identified above.

He concluded that the value of the lost trees is $16,523. [43] In Ovens the Trunk Formula Method resulted in an appraised value of the trees of $16,523. Justice Macaulay awardedcompensatory damages of $16,000 (paras. 35-38). In doing so however he did not simply accept the valuation of the expert. [44] The defendants submit that a consideration of the plaintiff’s subjective description of the impact of the trespass on her propertyshould result in a finding that the assessment of the plaintiff’s expert represents a fair award.

The defendants also note that the plaintiffled no evidence of the loss of the value of the timber from the tree nor its impact on the market value of the plaintiff’s land. [45] The plaintiff does not accept that the Trunk Formula Method is a complete method of valuation as it only addresses the value ofthe tree. She submits the Ovens case in referring to amenities refers to factors such as species, location, and condition of the tree not theactual losses of the plaintiff related to the impact on her.

In Ovens while the court found there was a loss of privacy its impact wasexaggerated hence the claim for loss of such an amenity was not significant. [46] In Muncaster v. Nunnenmacher, [1994] B.C.J. No. 1072 (B.C.S.C.), the defendant cut 13 pine trees on the plaintiffs’ propertythat had screened the plaintiffs’ view of a large retaining wall. Justice Drossos awarded the plaintiffs $13,000 in compensatory damages. [47] In Glashutter et al v. Bell et al, 2001 BCSC 1581, a stand of mature evergreen and deciduous trees provided privacy to theplaintiffs’ home from the defendants’ property as well as a busy road.

While the plaintiffs were on vacation the defendants had severaltrees topped, removed or pruned. There was no expert evidence respecting the amenity value of the trees. Justice Wedge awarded $4,000for the removal of the four Douglas Firs, $4,216 for the cost of restoring the removed trees, $1,800 in damages for pruning the remainingtrees and $7,000 in punitive damages. In doing so she accepted the plaintiffs “placed considerable value on their trees along the propertyline.” She noted as well that the subject of the trees had been a sensitive one as between the parties for several years.

At para. 32 shecommented on compensatory damages as follows: [32] Compensatory damages in cases such as these serve a two-fold purpose. They provide a sum sufficient to pay for the remedialwork that a reasonable person with sufficient resources would have implemented had the loss of the trees occurred without fault on thepart of anyone. In addition, they provide an amount that will compensate fairly for the loss of use and enjoyment of the trees to the extentthe remedial work does not completely replace what has been lost (Kates v. Hall (1991), (BC CA), 53 B.C.L.R. (2d)322). [48] The plaintiff relies on Kranz v.

Shidfar, 2011 BCSC 686, where the defendant instructed a third party to cut down trees on hisproperty, and that person then also cut down trees on the plaintiffs’ property. The plaintiffs claimed damages for the destruction of thetrees claiming a loss of enjoyment of their land and a diminishment of the value of their property. The court awarded $42,000 for therestoration costs, $20,000 for loss of enjoyment and $35,000 for punitive damages. No loss of value of the property was proven.

Mr.Justice Groves said this about the loss of enjoyment: [19] That being said, the plaintiffs have proven a loss of enjoyment of land. The evidence before me suggests that the plaintiffspurchased 875 Fairmile with the intent to use it for their retirement. It was particularly appealing to Mrs. Kranz who liked the pool areaand the privacy the home offered. After the cutting of the trees by way of trespass, Mrs. Kranz could no longer enjoy the privacy aroundthe pool. This loss inflicted by the cutting of trees on the Kranzs' property by Shidfar does warrant compensation. Our Court of Appeal inDykhuizen v.

Saanich (1989), (BC CA), 63 D.L.R. (4th) 211, confirmed that damages for destruction of trees canextend to compensation for loss of amenities. In Hutton v. Morehouse, [1998] B.C.J. No. 668 (S.C.) [Hutton], McEwan J. of this Courtawarded $25,000 for loss of amenities because of the sense of invasion and violation that the plaintiff suffered as a result of thedefendant's actions in trespassing and logging on the plaintiffs land.

[20] I agree with counsel for the plaintiffs that the reasoning of Mr. Justice McEwan in Hutton is persuasive. Here, as in Hutton, asignificant component of the plaintiffs' loss as detailed in the evidence is the loss of privacy and the sense of invasion that the Kranzshave suffered.

Keeping in mind, however, that some of this loss or invasion was no doubt facilitated by the removal of trees fromShidfar's own property, I would fix an appropriate award in this area at $20,000. [21] As such, I award damages payable by Shidfar to the Kranzs at $42,000 for remediation costs and $20,000 for loss of enjoymentof the land. [49] In Hutton v. Morehouse (1998), 78 A.C.W.S. (3d) 846 (B.C.S.C.), McEwan J. assessed damages for loss of amenities wherelogging was conducted on the plaintiff’s lands as follows: [48] Having heard the evidence of Dr.

Hutton, it is clear that a very significant component of his loss is the sense of invasion orviolation he suffered. He has also lost the enjoyment he derived from the trees, particularly those between his house and the Morehouseproperty. The trespass has also interfered with [the] plaintiff's plans to move a trailer onto the property for members of his extendedfamily. Respecting these damages I take some guidance from Craig v. North Shore Heli Logging Ltd., (BC SC),[1997] B.C.J. No. 983, April 23, 1997, Vancouver Registry, No. C891945 (B.C.S.C.). There, Mr. Justice Smith awarded $25,000 forloss of amenities.

The logging in that case was much more extensive than the logging here, but the owners were essentially absentees.While acknowledging this, Smith, J. observed, that the owners "[had] to live with the daily knowledge that their forested properties nolonger existed." Here the plaintiff is confronted daily with his loss.

I award the plaintiff $25,000 for loss of amenities. [50] The logging was substantially more than the one tree cut in this instance. [51] The defendants rely on a number of authorities in support of their submission that the amount for the loss of the tree proposedby the expert of $9,100 is sufficient: Ovens, Hanna v. Muir, 2000 BCSC 1288, Bowbrick v. Jakob, 2017 BCPC 194, Rowe v.

Thompson,2011 BCSC 430 and Muncaster. [52] In my view an award of $10,000 for general damages is appropriate, taking into account the importance to the plaintiff of herbackyard, the fact that only a single tree was removed but it was substantial, was one of only four, and the fact that its removal has left alarge gap in the trees partially screening the back of the plaintiff’s property; and as well taking into account the authorities referred to andthe dates of those authorities relating to compensatory damages. [53] With respect to special damages the removal costs of $650 and the costs of retention of the surviving affected tree of $4,500 areawarded.

Aggravated Damages [54] Aggravated damages involve intangible losses such as pain and suffering, mental distress and emotional shock. They are a formof non-pecuniary damage. They compensate for the manner in which the defendant’s conduct affected the plaintiff. Aggravated damagesarise where the conduct of the defendant is particularly poor. In Vorvis v. Insurance Corp. of British Columbia, (SCC),[1989] 1 S.C.R. 1085, the Supreme Court stated at 1099, quoting from S.M.

Waddams, The Law of Damages (Toronto: Canada LawBook, 1983) at 562-63: [A]ggravated damages describes an award that aims at compensation, but takes full account of the intangible injuries, such as distress andhumiliation, that may have been caused by the defendant’s insulting behaviour. [55] The plaintiff submits that the actions of the defendants from the date of the cutting have had a significant effect on her well-being.

Those actions are alleged to have left the plaintiff in a continuing state of concern that the trees will be removed. [56] In addition to their submission that the events that occurred after the trespass and cutting cannot be relied upon, the defendantssubmit the authorities do not support an aggravated damage claim even where the conduct may warrant punitive damages as aggravateddamages are subsumed in the punitive damages award. [57] Aggravated damages are compensatory.

Hence while the conduct may justify punitive damages, unlike punitive damages theyare to compensate not punish (Vorvis at 1098-1099). [58] Given my earlier conclusion respecting conduct after the trespass I decline to order aggravated damages. Punitive (or Exemplary) Damages [59] Punitive damages arise in tort where there is an actionable wrong, that wrong has injured the plaintiff and the conduct of thedefendant demands condemnation (Vorvis at 1108). They are intended to address the need for retribution, deterrence and denunciation(Whiten at para. 43). They are a form of punishment.

They are intended to both deter the defendant from such conduct in the future andto denounce that conduct. They arise where the defendant’s conduct is particularly egregious and a marked departure from ordinarystandards of conduct (Whiten at paras. 36 and 92). They are sometimes referred to as arising where the conduct in issue is malicious,oppressive or high-handed such that the court’s sense of decency is offended (Whiten at para. 36). [60] Punitive damages have been awarded in numerous cases of trespass involving the removal of trees. [61] In Bowen Contracting Ltd. v. B.C.

Log Spill Recovery Co-operative Assn., 2009 BCCA 457, the B.C. Court of Appealconsidered “the effect of Whiten on the awarding of punitive damages in the context of trespass in this province” (para. 16). In applyingthe law relating to punitive damages to trespass the court at para. 23 stated: [23] This brings us to the Supreme Court of Canada's seminal decision in Whiten. It was, of course, not a case of trespass but of an

insurer’s contesting a fire insurance claim in bad faith. However, the Court carried out a comprehensive review of the law relating topunitive damages in Canada and elsewhere. At paras. 67-76, the Court drew ten general principles or conclusions from its comparativesurvey, which principles I paraphrase as follows: 1. Punitive damages are not limited to particular "categories" of wrongs, although by their nature they will "largely be restricted tointentional torts"; 2. The general objectives of punitive damages are punishment, deterrence of the wrongdoer and others, and denunciation; 3.

Since the primary vehicle of punishment is criminal law, punitive damages should be resorted to only in "exceptional cases andwith restraint"; 4. The use of pejoratives such as "high-handed" or "oppressive" does not provide useful guidance (or discipline) to judges or juriesand a more principled approach is desirable. (Notwithstanding this, the Court said at para. 94 that punitive damages are to be imposedonly if there has been "high​handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree fromordinary standards of decent behaviour."); 5.

In setting punitive damages, the court should ask itself "in particular" how an award would further one or other of the objectivesof the law and what is the lowest award that would serve the purpose; 6. It is "rational" to use punitive damages to relieve a wrongdoer of its profits where compensatory damages would amount to"nothing more than a licence fee to earn greater profits through outrageous disregard of the legal or equitable rights of others." 7. A "formulaic" approach should be avoided. The court should focus not on the plaintiff’s loss but on the defendant's misconduct; 8.

The overall award should be rationally related to the objectives for which punitive damages are awarded; 9. Juries should receive more help from judges concerning the function of punitive damages and factors governing such awards andthe assessment of a proper amount; 10. Punitive damages are not "at large" and an appellate court may intervene if an award exceeds the outer boundaries of a rationaland measured response to the facts of the case. [62] The plaintiff argues that punitive damages are justified in this case because:

a) The defendants knew that the proposed tree cutting would be opposed and that it involved trespassing on the plaintiff’s land;

b) The individual defendant harboured animosity towards the plaintiff;

c) The defendants deliberately chose to give “notice” early on a Saturday morning immediately prior to commencing cutting withthe intention of preventing property owners from interfering with the tree cutting;

d) The defendants chose to remove 55 percent of the tree ostensibly for safety reasons yet had that been the case side cutting ofthe offending branches would have sufficed;

e) The real reason for the cutting was to improve the view and it is probable that the intention was to cut all four trees althoughthat is denied by the defendants;

f) The true intention of the corporate defendant was to improve the view as part of a plan to generally remove trees visible fromthe subdivision in order to increase the value of the lots for the purposes of urgently needed refinancing;

g) The defendants asserted the tree was a danger when there was no evidence such was the case and in fact the evidence was thatit was not;

h) The defendants kept cutting despite the requests of the plaintiff that they stop. [63] The defendants submit an award of compensatory damages in the amount they proposed was sufficient to serve the purposes ofpunitive damages, that is to deter and to denounce high-handed and reckless behaviour. They submit the amount sought by the plaintiffgreatly exceeds precedents for such awards. [64] They note that in Horseshoe Bay Retirement Society v. S.I.F.

Development Corp. (1990), (BC SC), 66 D.L.R.(4th) 42 (B.C.S.C.), some of the lots trespassed upon were significantly damaged and given the conduct of the developer and the need todissuade like-minded developers Shaw J. awarded $100,000 in punitive damages. [65] In Prince Rupert (City) v. Pederson (1994), 50 A.C.W.S. (3d) 1029 (B.C.C.A.), the defendant had cut trees on a Sunday so thatCity workers would not be present. His purpose was to have a view for the home he was constructing.

The Court of Appeal reducedpunitive damages from $58,500 to $25,000 noting that the value of the defendant’s lands had increased. [66] In O’Cadlaigh v.

Madiuk (1994), 47 A.C.W.S. (3d) 1341, punitive damage of $25,000 were awarded given the lot had increasedsignificantly in value and the trespass had made the property more attractive to buyers. [67] I note that several of the authorities relied on with respect to suitable damages are over 20 years old and any damage amountsrelied on must reflect current financial values. [68] The defendants submit such examples establish amounts in excess of what would be appropriate here because the trespass by

the defendants was not done with an intention to profit and the defendants in this case did not realize any actual economic benefit. [69] I am satisfied that the corporate defendant was financially motivated in having the tree cut as it was, like others along KargerTerrace, that were visible from the subdivision although the evidence indicates that the removal of the plaintiff’s tree did not profit thedefendant. Mr.

Karger secured a better view although there is no evidence that increased his property value. [70] I am also satisfied that the defendants intended to cut down the tree in question knowing full well that the plaintiff was opposedto their doing so and did so in a manner designed to inhibit the plaintiff’s ability to interfere. In addition, the wording of the StatutoryBuilding Scheme was clear that they did not have the right they professed to have to cut the tree. I find their intention in doing so wasboth for profit with respect to the corporate defendant and for the personal improvement of Mr.

Karger’s property view. Such conductwas high-handed and reprehensible. It was a marked departure from ordinary standards of conduct. As I noted in my reasons at thesummary trial it did no credit to those involved. It is conduct that is deserving of punishment. [71] Any award of punitive damages relates to the conduct of each defendant individually: see Drager v. Lojstrup, 2016 BCSC1447, par. 70, Hill v.

Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130 par. 198. [72] Taking into account the punitive damages awarded in the authorities referred to, the particular circumstances of this case andthe need to deter and denounce such conduct as occurred here, an award of $10,000 against each defendant is warranted. [73] As a result the plaintiff shall recover damages of $10,000 for general damages, $5,150 in special damages against bothdefendants and $10,000 in punitive damages as against each of the defendants severally. Costs [74] Counsel asked to address the issue of costs in writing.

In the event they are not able to settle the costs issue they have liberty toprovide written submissions on costs within 30 days of these reasons. If counsel cannot agree on a

schedule for those submissions theyhave liberty to apply. The submissions of the plaintiff and the defendants shall not exceed 10 pages and any reply submissions from theplaintiff shall not exceed five pages. “R.D. Punnett, J.” The Honourable Mr. Justice Punnett