Turgeon v. James, 2020 BCPC 127

Citation: Turgeon v. James 2020 BCPC 127 Date: 20200221 File No: 1955135 Registry: Fort St James IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: RICHARD TURGEON CLAIMANT AND: TRAVIS JAMES DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Appearing on his own behalf: Richard Turgeon Counsel for the Defendant: Travis James Place of Hearing: Fort St. James , B.C. Date of Hearing: October 22, 2019 Date of Judgment: February 21, 2020 [ 1 ] This proceeding is by way of Notice of Civil Resolution Tribunal Claim following a decision by the Civil Resolution Tribunal dismissing Mr.

Turgeon’s claim for $1,200 in connection with the alleged cutting of trees on his property by Mr. James. Mr. Turgeon seeks $1,200 compensation for damage to property, the cost of cleaning up debris and planting new trees; as well as $450 in disbursements relating to advancing this claim. [ 2 ] Mr. Turgeon’s wife owns an undeveloped lot on Stuart Lake by Fort St. James, B.C. In 2017, Mr. James bought the house and property next door. Both properties front the lake and it is not disputed that the foreshore of the lake is Crown land. In the summer of 2017, Mr. Turgeon and Mr.

James discussed a large snag situated on the Crown foreshore which posed a hazard to Mr. James’ property.

It is not disputed Mr. Turgeon agreed Mr. James could cut down that particular tree because of its hazardous state. [ 3 ] Mr. Turgeon alleges that in July 2017, he discovered Mr. James had topped and trimmed 32 trees on his property and the Crown land without Mr. Turgeon’s permission, ostensibly to get a better view of the lake. He claims Mr. James left logging debris on his property which required hours of clean up by Mr. James and his sons. He complains that topping those trees negatively affected the windbreak which can accelerate windfall and soil erosion. Mr.

Turgeon seeks damages for trees cut on the Crown owned foreshore and his own land. [ 4 ] Mr. Turgeon is trained as a professional forester. He argues Mr. James was not permitted to cut the willows on the Crown foreshore adjoining Mr. Turgeon’s property without proper forestry permits. Mr. Turgeon did complain to Natural Resources Officers in 2018, however, they decided to take no action due to both the “minor nature and time lapse” since the incident originally occurred. [ 5 ] Mr. Turgeon adduced photos of three evergreens and a copse of poplars situated on his property which he says were topped by Mr. James.

The poplars were cut down by nine feet. Some of the evergreen boughs depicted in the photos were still green, consistent with having been recently cut, however, other photographed boughs were in advanced flagging, indicative of having been severed at an earlier time. Mr. Turgeon’s land is heavily forested and the cut or topped trees were nestled in among other, uncut trees. Other than the picture of one green bough, I could not tell from the photos the recency of any cutting. [ 6 ] Mr.

Turgeon says that he arrived at his property one day to find a number of trees had been cut and the tops left tangled in other trees or lying on the ground. He had to clean up the area with his sons which took 13 hours, 39 man-hours, of stacking and burning. [ 7 ] Mr. James admits he trimmed trees, but only those on the Crown foreshore which were identified to him by the previous owner as being in the “trim zone.” Mr. Turgeon agrees there was a “trim zone” agreement between him and the previous homeowner. Mr.

James adduced photos he took at the time he was viewing the neighbour’s property for purchase showing that many trees were already trimmed by the previous owner before he took possession of the property. He denies cutting any large trees on Mr. Turgeon’s property, just willows on the foreshore. He posits that the previous homeowner may have cut those trees, as they do not appear in the photos taken from the previous homeowner’s residence. He believes the previous homeowner may have cut the copse of poplars and Mr. James denies ever touching them. [ 8 ] Mr.

Turgeon is not the titleholder of the property which is the subject of this dispute. The owner of the property, according to Mr. Turgeon, is his wife. Her name and certificate of title were not adduced. She is not named as a Claimant in the action. More significantly, Mr. Turgeon admits his wife did not agree with his position on not cutting the trees and she was not in support of his claim. Mr. Turgeon’s wife sold the property one month before trial. He admitted the cut trees did not affect the property value in the sale and he never did expend any funds to replant the trimmed trees. [ 9 ] Mr. James argues Mr.

Turgeon is not being truthful about three people spending 13 hours stacking and burning debris. Mr. Turgeon never approached him at the time to point out the alleged debris or ask him to remove it. Mr. James never observed the alleged clean-up, despite living next door. Mr. Turgeon adduced no corroborating evidence from his sons about the alleged clean-up. [ 10 ] Mr. James further points out there was a province wide fire ban at the relevant time period due to high wildfire risk conditions. Mr.

Turgeon admitted in cross-examination that was the case, but asserts that the Fire Centre gave him special permission to burn because of his experience and the fire risk posed by the trimmings. When pressed on who at the Fire Centre would have granted that type of exemption, Mr. Turgeon did not answer directly, choosing to re-focus the inquiry on the cut tree tops. When asked by the Court who gave him permission to burn during a fire ban, he said he did not know. When asked if he was issued a burning permit, he admitted he was not. [ 11 ] Mr. James also argues that Mr.

Turgeon’s photographs of allegedly fresh cut boughs were in advanced decay, flagging, or devoid of leaves, suggesting they had been cut much earlier than when Mr. James was alleged to have cut them. Mr. James says he only cut willows with a pole trimmer and only used a chainsaw once to get at one tree high on the beach. He points out that some of the cut trees Mr. Turgeon attributes to him would require a chainsaw. [ 12 ] Mr.

James says he only cut the dangerous snag and the trimmed the willows on the Crown foreshore which were in the “trim zone.” As there was a fire ban, he stacked all the trimmings on the beach on the Crown foreshore pending a lifting of the ban. He says he did not cut Mr. Turgeon’s mature trees on his property and did not leave a mess of debris. He rarely saw Mr. Turgeon as there was no residence on the subject property and Mr. Turgeon did not live there. [ 13 ] Mr. James says before the claim was filed with the CRT in December 2017, he had last seen Mr. Turgeon at the property in August 2017. At that time Mr.

Turgeon was doing yard work and did not give any indication he was upset about anything. Mr. James says this behaviour was inconsistent with Mr. Turgeon’s allegation he had arrived to discover Mr. James had cut down a bunch of his trees. In September 2017, Mr. James phoned Mr. Turgeon about cutting down some more snag trees as they had discussed before and Mr. Turgeon told him not to touch his trees. Mr. James says he heard nothing more until he was served with Mr. Turgeon’s CRT claim. [ 14 ] Mr. James admits that some of the willows he trimmed he originally believed were on Mr. Turgeon’s property.

He cut those on the basis of the representations of the previous owner that the there was a longstanding “trim zone” agreement with Mr. Turgeon, and these willows were in the trim zone. It later turned out the willows were on Crown land in any event. Mr. James was adamant a number of cut trees identified by Mr. Turgeon were already cut when he moved in. He says he did not leave a mess and the beach in front of Mr. Turgeon’s property is in his view, so he had additional motivation to ensure the area was left tidy. He says if Mr. Turgeon had contacted him about an alleged mess he would have happily addressed it.

Action in Trespass [ 15 ] For Mr. Turgeon to succeed in his claim for trespass, he must prove on a balance of probabilities that he is the owner or an occupant who has a legal or beneficial interest in the property and has suffered damage as a result of Mr. James’ actions.

[ 16 ] Mr. Turgeon has no standing to sue for trees cut on the Crown foreshore. He is not the owner and has no beneficial interest in the land. He complained to the Crown and the Crown declined to take action against Mr. James for injury done to its own property. Mr. Turgeon’s claim in trespass in this regard cannot succeed. [ 17 ] I am not satisfied Mr. Turgeon has proven, on a balance of probabilities, that Mr. James cut trees on his land. The evidence shows Mr. Turgeon only came to the property intermittently. Mr.

James had recently moved into the neighbouring residence and the prior homeowners admitted they routinely cut down trees on or adjacent to Mr. Turgeon’s property pursuant to a 25 year “trim zone” agreement. The limbs and boughs photographed by Mr. Turgeon were not obviously freshly cut. It is plausible that the previous homeowners had cut those trees before Mr. James moved in. [ 18 ] Even if Mr. James had cut some of those trees, Mr. Turgeon would have to establish the ownership or occupation criteria to succeed in a claim of trespass. Mr.

Turgeon did not adduce any independent evidence of his interest in the property, other than he asserts it belongs to his “wife.” No certificate of title identifying the homeowner, independent proof of his marital relationship or his beneficial interest in the property was adduced. Mr. Turgeon’s wife was not a party to the action. To the contrary, I understood Mr. Turgeon’s evidence to be that his wife did not agree with this lawsuit as she did not have any issue about the trees being cut. This raises the issue of what standing Mr. Turgeon has to sue Mr.

James given he is not the property owner or agent of the property owner. At best, he is married to the property owner. [ 19 ] Even assuming Mr. Turgeon is married to the property owner, that does not imbue him with standing to bring the action. There is no evidence his wife consents to this claim. Mr. Turgeon’s distinct interest in the property vests upon separation or death. He claims compensation payable to him despite the injury being done to his wife’s property.

The right to complain of nuisance, as of trespass, belongs exclusively to the actual possessor of the land affected (Fleming, The Law of Torts , 6th ed., Sydney: Law Book Co., 1983, at page 393). Here Mr. Turgeon has no “common interest” with the property owner because she does not oppose the cutting of the trees. [ 20 ] Further, Mr. Turgeon has failed to prove he has suffered any damage as a result of Mr. James’ actions. Even assuming Mr. James did top some of the trees on Mr. Turgeon’s property, the property is now sold. Mr.

Turgeon admits he never purchased any trees to replant and the topped trees did not diminish the property value. The only arguable “loss” which could be claimed by Mr. Turgeon is the cost of cleaning up debris allegedly left by Mr. James. [ 21 ] I find Mr. Turgeon has not proven that loss on a balance of probabilities. Mr. James says he did clean up the debris and put it on a pile in the foreshore, he never saw Mr. Turgeon or others cleaning up any debris, and Mr. Turgeon never said a word to him about it before filing his claim.

I accept he had an interest in tidying the trimmings because the beach was in his own view. I found Mr. Turgeon’s evidence about burning a large trim pile in the apex of a fire ban during wildfire season to be unlikely. I prefer the evidence of Mr. James on this point. Conclusion [ 22 ] Mr. Turgeon’s claim is dismissed. Mr. James is at liberty to put the matter before me to address any issues of costs or penalties. ____________________________ The Honourable Judge C. Malfair Province of British Columbia