Bowbrick v. Jakob Date:, 2017 BCPC 194

Citation: Bowbrick v. Jakob Date: 20170605 2017 BCPC 194 File No: 15-24906 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: IAN BOWBRICK and ANDREA BOWBRICK CLAIMANTS AND: ALFRED JAKOB and GISSELL JAKOB DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER

Appearing on their own behalf: I. Bowbrick and A. Bowbrick Counsel for the Defendants: M. Price Place of Hearing: North Vancouver, B.C. Dates of Hearing: June 9, October 31, 2016; March 9, April 18, 2017 Date of Judgment: June 5, 2017 [1] This decision relates to an assessment of damages arising from intentional damage to a mature red cedar tree on the claimants’property. This Court earlier found that the defendants, who are neighbours of the claimants, drilled holes into the trunk of the tree andapplied a still unknown toxic substance to the tree through the holes causing its decline.

The defendants had for some time been trying toconvince the claimants to remove the tree as it shaded their pool area. As part of their defence, they alleged the tree was on theirproperty which a survey commissioned by the claimants established was incorrect. The defendants denied responsibility through to theend of trial. [2] The damaged tree was just under 20 meters in height and a focal point from an aesthetic point of view for the claimants. Likemany, the Bowbricks had an emotional attachment to the tree due to its beauty.

It is positioned at the back corner of their backyardwhich is open to a public foot path and creek beyond. It is the only sizeable conifer in the area. It was a healthy tree prior to beinginterfered with by the defendants. [3] The tree has continued to decline since dieback became noticeable in the area directly above the holes. Efforts were madeearly on to try and ameliorate the damage to the tree with soil treatments. A recent arborist’s assessment found the tree has lost 40 to45% of its canopy from the time of the arborist’s initial investigation in June of 2014 which occurred after initial dieback was noted.

There is little evidence of recovery and it is reasonable to expect the tree will continue to decline. As the tree is likely to become ahazard, the arborist has recommended it be removed. A further report addresses the costs which will be involved in the removal andreplanting of new trees. [4] The conduct of the defendants has also impacted the Bowbricks’ sense of quiet enjoyment of their property. I think it apt todescribe their feelings as a breach of “neighbourly trust”.

They had a food garden in their yard and were concerned that whateversubstance had been applied to the tree could have contaminated their garden. This was a reasonable concern given there was a pattern ofdieback in the plants and lawn plants under the tree in an area between the tree and their food garden. [5] The tree was assessed using the Trunk Formula Method on May 8, 2015 and was valued at $18,800.00. This method of treevaluation is now a generally accepted method for the valuation of trees (see: Ovens v. Kirkman, 2006 BCSC 394 at para. 35).

Thismethod includes an assessment of loss of amenity being the beauty of the tree itself and its overall contribution to the landscape. As aresult, I need not deal with the Jakobs’ argument and authorities respecting the determination of damages for this issue. [6] In Ovens, the court summarized the principles to be applied in the assessment of damages at paragraph 37: [37] Chan involved the application of the principles respecting assessment of damages set out in Kates v. Hall (1991), (BC CA), 53 B.C.L.R. (2d) 322. I summarize the principles as follows.

Damages may extend to the cost of restoration, withinreasonable bounds, together with compensation for loss of amenity to the extent that complete restoration cannot reasonably be effected. The trespasser is not required to finance restorative measures which are plainly unreasonable. The damages must represent what isreasonable, practical and fair in all the circumstances, not just from the perspective of the plaintiff. [7] As the only reasonable option for the Bowbricks is the removal of the tree, the entire value of the tree has been lost.

I find thistree should be valued the high end as it was a large and healthy specimen with full and well-shaped foliage and formed the focal point inthe Bowbricks’ landscape. [8] I turn now to the issue of whether punitive damages should be awarded against the Jakobs. I find the conduct of the Jakobs tobe high handed and deserving of censure. They intentionally destroyed property of their neighbour. The property destroyed was a livingorganism with inherent value to the surrounding eco-system. It is property that only the passage of many decades could replace. I againadopt the analysis of Mr.

Justice Macauley in Ovens at paragraphs 39, 40 and 41: [39] The next question is whether I should award punitive damages. In Kates, the Court of Appeal upheld the finding by the trialjudge that the defendant's conduct was high handed justifying an award of $2,000 per tree for punitive damages. In my view, the conductof Mr. Kirkman was high handed and deserving of censure. I do not accept that he honestly believed that the trees in question were onhis land.

If he ever held such a belief, he should have, at the very least, consulted with his neighbours, or taken other reasonable steps, todetermine the exact location of the boundary lines before acting. Apart from testifying that it was difficult to determine the location, Mr.Kirkman preferred no other explanation. [40] I also take into account that the trees did not represent any significant identified risk to the defendants' property notwithstandingMr. Kirkman’s assertions to the contrary. Instead, he appears to have acted solely to improve the view from the defendants' home. [41] Mr.

Kirkman acted without any regard to the legitimate interests and privacy expectations of the plaintiff. He was not a goodneighbour. An award of punitive damages is the one of the few means available for the court to express its disapproval and to send amessage to others that they must not trespass and cut trees on their neighbour’s land without express permission. I award punitivedamages against Mr. Kirkman of $5,000.

[ 9 ] I find the amount of $7500.00 is appropriate to express to the Jakobs and to others of like mind that such conduct amounts to serious civil wrongdoing. [ 10 ] In

summary, I have found the following damages should be awarded to the claimants: Value of the tree - $18,800.00 Permit for the removal of the tree - 76.00 Removal of the tree - 3,192.00 Replanting 3 trees as required by permit - 1,497.30 Treatment of tree at time of damage - 399.00 Punitive - 7,500.00 Total - $31,464.30 [ 11 ] As the total damages awarded exceed the monetary jurisdiction of this Court, judgment will be entered in the amount of $25,000.00. [ 12 ] The claimants are entitled to compensation for their reasonable expenses as follows: Filing fees - $ 156.00 Service fees - 21.42 Title search - 18.38 Survey - 1,890.00 Arborist’s fees for court purposes - 1,798.13 Copying, stationery, etc. - 50.00 Total - $3,933.93 ______________________________ The Honourable Judge J.

Challenger Provincial Court of British Columbia