M.G. v. B.W., 2023 BCPC 272

Citation: M.G. v. B.W. 2023 BCPC 272 Date: 20231205 File No: 222025 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: M.G. and S.G. CLAIMANTS AND: B.W. and W.W. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Appearing on their own behalf: M.G. and S.G., by telecommunication Appearing on their own behalf: B.W. and W.W., by telecommunication Place of Hearing: Williams Lake, B.C.

Dates of Hearing: June 6, 22, August 1, December 5, 2023 Date of Judgment: December 5, 2023 BACKGROUND FACTS [ 1 ] S.G. and M.G. (the “Claimants”) are the registered owners in fee simple of the lands and premises located at [omitted for publication], legally known and described as: [omitted for publication] [ 2 ] The Claimants have owned and lived at [omitted for publication] since [omitted for publication], a period of more than [omitted for publication] years: Exhibit 3, Land Title Search.

Their land parcel consists of .35 hectares (approximately .865 acres) on the west shore of [omitted for publication]. [ 3 ] W.W. and B.W. (the “Defendants”) are the registered owners in fee simple of the lands and premises located at [omitted for publication], legally described as: [omitted for publication] [ 4 ] The Defendants have lived at [omitted for publication] either part time or full time since they first leased the property from the BC Government in [omitted for publication]. The Defendants purchased the property outright in [omitted for publication].

They have now had possession of [omitted for publication] for [omitted for publication] years. [ 5 ] The properties in issue lie within the Cariboo Regional District, a geographical area comprising of 82,000 square kilometres, extending west to Bella Coola, east to Wells, north to Hixon, and south to 70 Mile House. [ 6 ] In these Reasons for Judgment, I will refer to [omitted for publication] as the “Claimants’ Property”, and [omitted for publication] as the “Defendants’ Property”. [ 7 ] The Claimants’ Property and the Defendants’ Property are but two of the homes on the west shore of [omitted for publication] that are accessed via [omitted for publication].

Although it is a public road, [omitted for publication] is a poorly-maintained, narrow, gravel road which bisects some of the parcels of land on the west shore of [omitted for publication]. For example, both the Claimants’ Property and the Defendants’ Property consist of a main residence located above [omitted for publication], and a small piece of land which extends below [omitted for publication] to the shores of [omitted for publication]. [ 8 ] The Defendants’ Property abuts the north boundary of the Claimants’ Property.

The Claimants’ Property abuts the north boundary of [omitted for publication], which belongs B.M. and S.M.: Exhibit 4. [ 9 ] The residents living along [omitted for publication] have driveways which connect directly to [omitted for publication]. Some of the properties along [omitted for publication] have a fairly steep incline to the lake. Approximately six of the driveways connecting to [omitted for publication] encroach upon their neighbours’ property in order to diminish what would otherwise be a severely steep grade.

Typically these encroachments are regarded as what W.W. describes as a “gentleman’s easement”, existing with the consent and acquiescence of the neighbouring property owner. These gentleman’s easements date back to the 1940s when the properties were leased lots from the BC Provincial Government. [ 10 ] The gentleman’s easements are not documented nor registered with the Land Title and Survey Authority of British Columbia. The Claimants’ and the Defendants’ driveways were no exception.

The Claimants’ driveway encroached onto the M.s’ property to the south, namely, [omitted for publication], legally described as [omitted for publication], with its owners’ consent. The Defendants’ driveway encroaches onto the Claimants’ Property. As the Claimants’ Land Title Search and Certificate of Location confirm, the Defendants have no registered legal right to use any portion of the Claimants’ Property without their consent: Exhibit 3. [ 11 ] The current configuration of the Defendants’ driveway was in existence when they acquired the property as a leasehold in [omitted for publication].

Over the decades, there have been seven or eight different owners of [omitted for publication] (the Claimants’ Property). The Defendants say there has never been an issue with any previous owners of the Claimants’ Property. [ 12 ] On August 28, 2020, W.W. began to make some improvements to his driveway, including on the portion that encroached onto the Claimants’ Property. W.W. performed the work himself. Unfortunately, he did so without notice to, or the consent of, the Claimants.

The Claimants only learned of the work when they looked out their window early one morning and saw W.W.’s large backhoe in their back yard busily digging a ditch on the portion of the Defendants’ driveway that encroached on the Claimants’ Property. [ 13 ] The Claimants were shocked at W.W.’s activities. S.G. attempted to speak with W.W. about the work he was performing. These conversations did not go well. From her perspective, W.W. was dismissive of S.G.’s concerns.

She says when she spoke to him, W.W. became instantly agitated, angry, rude, and “demoralizing of [her] character”. [ 14 ] W.W. continued with his driveway-improvement project despite the Claimants’ protests. Ultimately, he installed a metal grate, catch basin culvert, PVP piping, paving materials (asphalt) and extended an existing rock wall (collectively, the “2020 Improvements”) onto the Claimants’ Property. This project was ongoing from August 28, 2020 to October 9, 2020.

During this period, on almost a daily basis, W.W. carried on with his backhoe, “moving dirt, dumping, placing rock, and having loads of paving material brought in . . .” Within six weeks, W.W. completed the 2020 Improvements. He did a good job. The quality of his workmanship was never an issue; it is W.W.’s failure or refusal to seek their consent or input which incensed the Claimants. [ 15 ] In the fall of 2020, the Claimants retained a BC Land Surveyor from Exton & Dodge Land Surveying Inc. in Williams Lake to

identify the boundaries of the Claimants’ Property: Exhibit 3. Mr. Ognjanov attended at the Claimants’ Property on October 15, 2020, and marked the property boundaries of [omitted for publication]: Exhibit 3. [ 16 ] In 2021, the Claimants complained to the Cariboo Regional District concerning W.W.’s noisy and invasive activities on the Claimants’ Property. Senior Bylaw Enforcement Officer Cunningham investigated the complaint and opined the Defendants’ driveway did in fact encroach onto the Claimants’ Property.

He says in his July 7, 2021 report to the Claimants and Defendants, “the installation of the driveway is not a bylaw issue”: Exhibit 3. [ 17 ] On August 4, 2022, the Claimants filed a Notice of Claim, Court Electronic Information System (“CEIS”) 1, seeking $29,163.50 in damages as follows: (a) $25,987.50 for the estimated cost for a third party to remediate the Claimants’ Property by removing the 2020 Improvements that encroached onto the Claimants’ Property; (b) $3,000 as damages for “nuisance, noise, bullying, and harassment”; (c) $156 in filing fees; and (d) $20 in service fees. [ 18 ] In their Notice of Claim, the Claimants alleged that between August 28, 2020 and October 9, 2020, W.W. committed the following acts of trespass: a.

W.W. dug a ditch on the Claimants’ lawn and installed a culvert which included a plastic PVC pipe (polyvinyl chloride pipe) and a catch basin with a metal grate; b. W.W. built a wall of gravel and large rocks and placed dirt to cover the rocks, which extends 35 feet into the Claimants’ yard; and c. W.W. installed paving material with a thickness of approximately four to six inches on the Defendants’ driveway which encroached 45 feet onto the Claimants’ Property; d.

W.W. deposited the soil he removed from the Claimants’ lawn onto the Defendants’ Property. [ 19 ] The Claimants say they retained a land surveyor who “confirmed that all work/construction had been located and completed on [the Claimants’] property”. [ 20 ] The Claimants cite the following examples of ongoing trespass, nuisance, noise, bullying, and harassment: 1. W.W.’s “work continued over the course of several weeks, virtually non stop with the backhoe, moving dirt, dumping, placing rock, and having loads of paving materials brought in on a daily basis”; 2.

W.W. “continued all work with no consideration of its location being completely on [the Claimants’] property and acted like he had the right to do whatever/whenever he wanted”; 3. W.W. accessed the Defendants’ lakeside property by driving a quad through the Claimants’ Property without permission or contributing to its maintenance or repairs”; 4.

On the lakeside portion of their respective properties, the Defendants placed “rocks, timbers, small buildings, and numerous other items” on, and over the Claimants’ Property line. (The Claimants later described the “small buildings” as a shed; and “numerous other items” to include gravel, firewood piles, debris, and containers”); 5. “It appears [W.W.] has designed his yard to allow storage of the his junk and clutter to either be located on the property line or in [the Claimants’] yard”; 6. W.W. removed the stakes and rope the surveyor had supplied on the lower portion of the Claimants’ Property; 7.

In winter of 2020, W.W. plowed the snow that had accumulated on the Defendants’ Property onto the Claimants’ Property; 8. On May 15, 2021, W.W. began his backhoe work at 5:45 a.m., creating a great deal of noise. This noise carried on until 8:00 a.m.; and 9. As result of the Claimants’ protests, the Defendants began to malign the Claimants to their neighbours. [ 21 ] On August 16, 2022, the Defendants filed a reply (CEIS 3), disputing the Claimants’ claim in its entirety: Exhibit 3. [ 22 ] On November 21, 2022, this matter came before Judge Mulder in Williams Lake Provincial Court for a settlement conference.

Judge Mulder ordered (CEIS 10): 1.

The Claimants are to provide W.W. within 30 days of today’s date: a. documents in support of their claim; b. photos of areas that are subject of the claim; and c. if possible a drawing or diagram of where the claimants intend to build the fence with problematic areas identified. [ 23 ] Judge Mulder adjourned the November 21, 2022 settlement conference to January 27, 2023 at 9:30 a.m. [ 24 ] In compliance with Judge Mulder’s November 21, 2022 direction, the Claimants retained Darko Ognjanov from Exton & Dodge Land Surveying Inc. to provide a Land Surveyor’s Certificate of Location of the offending encroachments. [ 25 ] On January 24, 2023, S.G. and M.G. swore an affidavit (CEIS 11), attaching 12 documents they ultimately tendered into

evidence at trial as part of Exhibit 3. [ 26 ] On January 27, 2023, the Claimants and the Defendants came before Judge Bennett in the Williams Lake Provincial Court for a continuation of the November 21, 2022 settlement conference. The matter did not settle and Judge Bennett ordered (CEIS 13): 1. Within 45 days of todays date each party shall provide a list of the witnesses they will be calling for the trial, contact information of each witness, and a short

summary of what each witness is expected to testify on at trial. If either party intends to call a witness at the trial, that should be noted in the exchange of witness list and any notice provisions required will need to be complied with. 2. Within 45 days from todays date each party will provide the other party with a copy of all documents, photographs, videos or other forms of evidence they intend to rely on at trial.

Each party will bring to the trial for the courts use 2 copies of all of the documents, photographs, videos, or other forms of evidence they intend to rely on and shall retain a third copy for their own use; and 3. At least 7 days before trial the parties shall exchange any case law that they intend to rely on at trial. [ 27 ] On or about March 11, 2023, pursuant to Judge Bennett’s January 27, 2023 Order, the Defendants sent to the Claimants by registered mail a duo-tang folder containing documents and will-say statements of witnesses, as ordered.

The Claimants tendered this duo-tang folder into evidence as proof that the Defendants engaged in ongoing efforts to bully, denigrate, and harass them: Exhibit 4. [ 28 ] On May 31, 2023, the Claimants amended their Notice of Claim to include one-half the cost of the Exton & Dodge December 7, 2022 Certificate of Location ($626.06), bringing their total claim to $29,789.56. CLAIMANTS’ POSITION [ 29 ] Initially, the Claimants wanted their property remediated to the condition it was in prior to the 2020 Improvements.

This includes the removal of the PVC culvert, metal grates, rocks, a portion of the rock wall, paving materials, and all other items installed or deposited or placed on the Claimants’ Property. [ 30 ] As the litigation progressed, so did the hostilities between the Claimants and Defendants. S.G. states the Claimants would have preferred a conciliatory approach to resolving the issues with the Defendants, but the Defendants foreclosed that possibility with their offensive conduct. The Claimants state: . . . M. and I would have preferred to work with Mr.

W. to resolve the issues by discussing what was being done on our property and ultimately come up with an amicable solution that could have worked for both parties involved. Instead we were met with lies, harassment, his sharing of misinformation and how others see us - dividing us in the community, allowing for defamation of character, and putting the blame on us, all the while taking no responsibility for his own actions. Mr. W. stated at the last court appearance that he and his wife were retired, and just wanted to live a quiet and peaceful life. This was also brought up on several occasions by Mrs.

L.W. that he is old and not in good health. His age and health concerns should not condone his misdeeds against us or our property. He had no problem taking matters into his own hands to suit his own needs and although he had a spokesperson (Mrs. L.W.) with him at the previous hearing, a spokesperson was never required while choosing to harass us, deface, or utilize our property. Being elderly, does not give you the right to be above the law, nor to treat others with disrespect.

We all deserve the opportunity to enjoy a quiet and peaceful life at home and within our communities no matter our age. . . . [ 31 ] The Claimants submit the Defendants have harassed and disrespected them, and defaced and utilized their property.

The Claimants, no less than the Defendants, deserve an opportunity to enjoy a quiet and peaceful life at home and within the community. [ 32 ] Specifically, the Claimants found the Defendants’ March 11, 2023 “Response to the Claim” and L.W.’s letter dated September 12, 2022, particularly offensive and corroborative of the Claimants’ allegations of bullying and harassment. [ 33 ] Eventually, the Claimants gave up any hope of reaching an amicable and workable solution with the Defendants.

They ask that the Defendants remediate their trespass and cease to enter onto the Claimants’ Property in any place, for any purpose, to any degree. [ 34 ] As a result of the Claimants revoking their consent, the Defendants would have to reconfigure their driveway so it connected directly to [omitted for publication] without having to trespass or encroach on the Claimants’ Property. The Claimants also ask that the Defendants remove any items on the lakeside property that were on, or over, or too near the Claimants’ Property line, including the Defendants’ shed, timbers, wood piles, containers, and other items.

The Claimants ask that all this remedial work be done by a neutral third party at the Defendants’ expense. [ 35 ] The Claimants also seek non-pecuniary damages for the Defendants’ tortious conduct. DEFENDANTS’ POSITION [ 36 ] The Defendants are elderly; they are now in their [omitted for publication] and in poor health. They have lived on the south shore of [omitted for publication] for much of their lives. Because he has the expertise and heavy equipment, W.W. undertook, without charge, the task of maintaining [omitted for publication] as needed.

This included road repairs, grading, snow clearing, and general maintenance, for the benefit of all the residents who use [omitted for publication] to access their properties. He also uses his backhoe to assist his neighbours from time to time. At trial, W.W. testified that he had removed some wooden stumps and rock piles and other debris from the Claimants’ Property, then infilled and back-bladed the area, which the Claimants then seeded. W.W. performed this work for the benefit of the Claimants, without prior discussion or compensation. They did not protest his efforts on their behalf.

[ 37 ] The Defendants have never denied the end of their driveway encroached on the Claimants’ Property. It had done so for more than [omitted for publication] years. W.W. does not dispute that between August 28, 2020 and October 9, 2020, he made the 2020 Improvements to his driveway that encroached upon the Claimants’ Property.

He believed the 2020 Improvements benefitted both parties, as well as the other residents who use [omitted for publication] to access their properties. [ 38 ] In their “Response to the Claim” dated March 11, 2023 (Exhibit 4), the Defendants explain the reasons for W.W. making the 2020 Improvements: In August of 2020, I noticed that there was constantly water pooling on [omitted for publication] at the bottom of our driveway. I decided that I would add a culvert and a catch basin so that the water had somewhere to go rather than creating puddles and potholes.

Considering the context of the work I have always done on [omitted for publication], I actually thought this would be a good thing to relieve the water and fix the road. I also used additional recycled asphalt on the driveway to [omitted for publication] which I thought would make S. [G.] happy as she complains about road dust a lot. In hind sight, if I had thought this would be an issue as it is today, I never would have undertaken such a project. While in hindsight I could have spoken to S. about the project prior to beginning work, however I did not.

As I stated in Mediation, I am willing to use my skills and backhoe to remove the catch basin as well as the culvert and three yards of asphalt in order to appease S. I am willing to return the corner of the G. property to the state it was . [Emphasis in original.] [ 39 ] The Defendants deny the driveway was extended as the Claimants allege.

The Defendants also say the rock wall was to stabilize the driveway and was not constructed on the Claimants’ Property, but on the [omitted for publication] allowance. [ 40 ] W.W. showed S.G. the location of the survey pins marking the boundary between the Claimants’ Property and the Defendants’ Property, twice. There was no need to resurvey the property. [ 41 ] After the Claimants had Exton & Dodge resurvey the Claimants’ Property in the fall of 2020, they extended a rope along the lower property line, restricting both parties’ casual use of their lakeside properties.

The Defendants say that sometimes they would cross onto the Claimants’ lakeside property, just as the Claimants crossed into the Defendants’ lakeside property. [ 42 ] W.W. admits to removing the wooden stake and rope that the Claimants erected, but denies removing any surveyor’s boundary markers. He says the lathe stake the Claimants erected was falling over, so he replaced it with a rigid piece of steel in exactly the same location where the lathe stake had been. W.W. then attached a rope to the steel stake, crossing directly over the survey boundary markers.

He then built a private access road to the Defendants’ lakeside property and used large rocks along the property line established by Exton & Dodge. [ 43 ] W.W. provided photographs to show that their shed, rocks and other materials are squarely on the Defendants’ Property: Exhibits 3 and 5. [ 44 ] B.W. testified that when the Defendants received the Notice of Claim, they showed it to some of their neighbours. They sought and received letters of support from their neighbours, including: (

a) L.W.; (

b) T.D. and L.T.; (

c) Y.G.; (

d) S.D.; (

e) J.K.; (

f) B. and S.M.; and (

g) V.B.: Exhibit 3. For the most part, the authors of these letters describe their positive relationship with the Defendants and their appreciation of W.W.’s assistance over the years. [ 45 ] When the Claimants first purchased their property on [omitted for publication], the Defendants tried to be neighbourly.

They decided “early on” to keep their distance based on their few interactions with S.G. they had “which all seemed to be negative, complaining and drama filled.” The Defendants cite examples of S.G.’s conduct which they deemed offensive. [ 46 ] The Claimants were distressed at the Defendants involving their neighbours in this conflict.

The Claimants found the Defendants’ March 11, 2023 “Response to the Claim” and L.W.’s letter of September 12, 2022, particularly offensive, and corroborative of their allegations of bullying and harassment. [ 47 ] Using the boundary markers placed by Exton & Dodge (Darko Ognjanov), the Defendants submitted photographs showing that the items the Claimants complained of as encroaching on their property on the foreshore of [omitted for publication] were squarely on their own property.

EVIDENCE AT TRIAL [ 48 ] This matter came before me for trial on June 6, 2023, and continued on June 22, 2023, August 1, 2023, and December 5, 2023. All parties were self-represented. Both the Defendants had hearing impairments, which the court accommodated. With the court’s permission, L.W. assisted the Defendants in presenting their case. [ 49 ] The Claimants called as witnesses:

(1) Bylaw Enforcement Officer Charles Frederick Cunningham;

(2) B.C. Land Surveyor Darko Ognjanov;

(3) S.G.; and

(4) M. (“M.”) G. [ 50 ] They tendered into evidence the following exhibits : Exhibit 1 : Coloured photographs of the Defendants’ driveway dated May 5, 2021 and June 22, 2021; Exhibit 2 : Darko Ognjanov, licence from the Association of British Columbia Land Surveyors; Exhibit 3 : A binder of materials which included, among other things: a. The Claimants’ Notice of Claim filed in Williams Lake Provincial Court Small Claims Registry under court file No. 222025 on August 4, 2022;

b. S.G.’s Certificate of Service of Notice of Claim on the Defendants, filed August 12, 2022; c. The Defendants’ reply filed August 16, 2022; d. The Land Title Search of the Claimants’ Property; e. Correspondence exchanged from September 8, 2020, to November 19, 2020, between the Claimants and Darko Ognjanov, BCLC, of Exton & Dodge Land Surveying Inc; f. Senior Bylaw Enforcement Officer Rick Cunningham’s letter of July 7, 2021, to the Claimant and Defendants confirming a portion of the Defendants’ driveway encroached on the Claimants’ Property; g.

Photographs of the lower portion of Defendants’ driveway taken May 20, 2021; h. Senior Bylaw Enforcement Officer Rick Cunningham’s letter of September 6, 2021, to the Claimant concerning his interaction with W.W. on July 7, 2021; i. Photographs the Claimants took in the Fall of 2020 of the Defendants’ encroachment and trespass on the Claimants’ Property; j. An estimate provided by Felix Wolf of Swift Wolf Contracting for remediating the Claimants’ Property ($25,987.50); k.

Darko Ognjanov’s Certificate of Location sealed December 7, 2022, of the Defendants’ rock wall and driveway in relation to the Claimants’ Property (Block A, District Lot 12605, Cariboo District), together with Darko Ognjanov’s letter to the Claimants dated December 13, 2022; l. Affidavit of S.G. and M.G. sworn January 24, 2023, attaching 12 exhibits which were tendered into evidence at trial as part of Exhibit 3. These were the documents Judge Bennett ordered disclosed to the Defendants on January 24, 2023; m.

The Claimants’ amended Notice of Claim filed May 21, 2023, to include one-half of the cost of Darko Ognjanov’s Certificate of Location and attaching invoices from Exton & Dodge Land Surveying Inc.; n. The Claimants’ witness list tendered to the court registry and confirmation the Claimants had sent the documents they planned to tender into evidence at trial to the Defendants by registered mail on December 27, 2022; and o. Exton & Dodge’s invoice in the amount of $1,252.13, dated December 5, 2022, together with a statement dated February 6, 2023, acknowledging payment of the invoice.

Exhibit 4: The Claimants entered into evidence the Defendants’ documents sent to them by registered mail in March 2023, which included; a. The Defendants’ will-say statements; b. The Defendants’ response to the Claim dated March 11, 2023; c. Coloured photographs of the property line between the Defendants’ and Claimants’ lakeside properties; d. Darko Ognjanov’s Certificate of Location of December 7, 2022; e. Photographs of the disputed boundary between the Defendants’ and Claimants’ Properties; and f.

The Defendants’ letters of support from some of the residents owning property on [omitted for publication]. [ 51 ] The Defendants called W.W. and B.W. [ 52 ] Exhibit 5 was tendered into evidence by the Defendants. This was a binder including: a. The Claimants’ Notice of Claim filed in Williams Lake Provincial Court Small Claims Registry under Court file No. 222025 on August 4, 2022; b. The Defendants’ formal offer to settle the claim by moving the rock wall in dispute over by an additional six inches; c. The Defendants’ March 11, 2023 four-page Response to the Notice of Claim in Provincial Court; d.

Coloured photographs of the lower

section of the Defendants’ Property, showing their rocks and shed are on the Defendants’ Property; e. Coloured photographs of the Defendants’ driveway showing the location of the catch basin, the culvert, and the location where the Defendants’ backhoe was parked; f. Coloured photograph of the Claimants’ driveway showing it encroaches on Block B by 50 to 70 feet; g. A copy of Darko Ognjanov’s December 7, 2022 Certificate of Location on which the Defendants have indicated the location of the Claimants’ house and their driveway in relation to the M.s’ property; h. A photograph showing the Defendants’ driveway prior to the fall 2020 Improvements;

i. A photograph showing that the stake the Claimants erected on the lower portion of the Defendants’ Property did not follow the actual property line; j. Letters of support from a number of their neighbours, including: (

a) L.W., dated September 12, 2022; (

b) T.D. and L.T., dated August 22, 2022 (

c) Y.G., dated August 19, 2022; (

d) S.D., dated August 27, 2022; (

e) J.K., dated August 17, 2022; (

f) B. and S.M., dated August 28, 2022; and (

g) V.B., dated September 25, 2022. CLAIMANTS’ WITNESSES Bylaw Enforcement Officer Cunningham [ 53 ] On the first day of trial, I heard oral testimony from: (

a) Senior Bylaw Enforcement Officer for the Cariboo Regional District, Charles Frederick Cunningham (also called Rick Cunningham); (

b) B.C. Land Surveyor Darko Ognjanov; (

c) the Claimant S.G.; and (

d) the Claimant M.G. [ 54 ] Officer Cunningham has worked in bylaw enforcement for ten years. He held the position of Senior Bylaw Enforcement Officer for the Cariboo Regional District for the past six years. Previously, he had been a police officer for 15 years. Officer Cunningham responded to the Claimants’ noise and encroachment complaints against the Defendants. Officer Cunningham testified that he attended at the Claimants’ Property on three occasions: May 20, 2021; July 7, 2021; and September 6, 2022. [ 55 ] Officer Cunningham investigated the Claimants’ concerns and spoke to W.W.

On July 7, 2021, Officer Cunningham sent by post a letter to the Claimants and the Defendants confirming the Defendants’ driveway crossed over the interior lot line and extends onto the Claimants’ Property: Exhibit 3. [ 56 ] Officer Cunningham was able to locate the boundary markers from Darko Ognjanov’s October 15, 2020 survey of the interior lot lines between the Claimants’ Property and the Defendants’ Property. [ 57 ] Officer Cunningham said that pursuant to the Cariboo Regional District noise bylaw, construction activities are permitted from 7:00 a.m. to 10:00 p.m. [ 58 ] On September 6, 2022, Officer Cunningham wrote a further letter to the Claimants which he hand delivered to the Claimants that same day: Exhibit 3.

Officer Cunningham reiterated the Defendants’ driveway had clearly been installed on the Claimants’ Property. Officer Cunningham goes on to state in his September 6, 2022 correspondence to the Claimants, in part: I had a brief conversation with Mr. W. confirming the lot line based on the survey and he did not seem to care about the issue. He was very belligerent to the point of almost yelling at me. I tried to explain he had no right to cross the lot line and make alterations to the property at [omitted for publication].

He pointed out that the driveway at [omitted for publication] also crosses the interior lot line to the property beside [omitted for publication] and shouted “people who live in glass houses shouldn’t complain” or words to that affect [sic]. I informed him that I had no formal complaint about that driveway; and if the other lot owner gave permission or does not complain, it is fine. After attempting to talk more to Mr. W. he just turned and walked away. I had no further contact with Mr.

W. as it was not going to achieve anything and advised S., they may have to take their own legal action to resolve this matter if Mr. W. is not willing to do anything. BC Land Surveyor Darko Ognjanov [ 59 ] The Claimants’ second witness was Darko Ognjanov, a BC Land Surveyor in the employ of Exton & Dodge Land Surveying Inc. in Williams Lake, BC. I qualified Darko Ognjanov as an expert entitled to give opinion evidence on land surveying. [ 60 ] Mr. Ognjanov attended at the Claimants’ Property on two occasions, once in the fall of 2020, and again in 2022.

On the first attendance in October 2020, Darko Ognjanov identified the property boundaries by GPS instrument, which he says is accurate up to two centimetres. Mr. Ognjanov inserted a four-foot stake on the property boundary between the Claimants’ Property and the Defendants’ Property at the point where the Defendants’ driveway encroached on the Claimants’ Property. At this time, Mr. Ognjanov did not measure the encroachment of the Defendants’ driveway or rock wall onto the Claimants’ Property. [ 61 ] The Claimants asked Mr. Ognjanov to attend again in 2022 and prepare a survey map (Certificate of Location).

This was pursuant to the direction of Judge Mulder after the November 21, 2022 settlement conference. [ 62 ] On his second attendance at the Claimants’ Property on December 7, 2022, Darko Ognjanov re-measured the property boundaries and established the Defendants’ driveway encroached on the Claimants’ Property by 562 centimetres (or 5.6 metres, or approximately 18 feet). Mr. Ognjanov determined the Defendants’ rock wall encroached onto the Claimants’ Property by only 13 centimetres (5.11 inches). [ 63 ] Mr.

Ognjanov provided the Claimants a letter dated December 13, 2022, enclosing his Surveyor’s Certificate of Location sealed December 7, 2022. Exton & Dodge invoiced the Claimants $1,252.13 for this service. CLAIM FOR “NOISE, NUISANCE, BULLYING AND HARASSMENT” [ 64 ] S.G. testified as to the hostile reception she received from W.W. when she tried to talk to him about his road-improvement activities in the summer of 2020. S.G. acknowledges the Claimants’ driveway encroaches the M. property.

She says the Claimants are always mindful and respectful of the fact they are using another’s property and obtain the owners’ permission before undertaking any roadwork or maintenance on their encroachment.

[65] The Claimants allege the Defendants engaged in tactics that have alienated the Claimants from their neighbours.

She points toExhibit 4, which she says contains highly personal, false, and irrelevant information about the Claimants. [66] M.G. testified the difficulties the Claimants had attempting to speak with W.W. given his confrontational manner. [67] The Claimants say that had W.W. treated them and their concerns in a respectful manner, they are confident they could haveworked something out that would have benefitted both parties, without having to resort to litigation. [68] In his testimony on June 6, 2023, W.W. suggested that should the Claimants insist the Defendants remove the portion of theirdriveway that encroached on the Claimants’ Property, the M.s may require that the Claimants remove that portion of the Claimants’driveway that encroaches on the M. property.

The Claimants perceive this as evidence of harassment. DEFENDANTS [69] W.W. and B.W. deny interfering with the Claimants’ relationships with their neighbours. They describe S.G.’s behaviour asunnecessarily confrontational. W.W. admits he responded to her initial overtures defensively, saying, “if you’re looking for something tobitch about then go find someone else”: March 11, 2023: Exhibit 4. [70] The Defendants say that S.G. shared her personal information with their neighbours. The Defendants showed the neighbours theNotice of Claim when asking them for letters of support and reference in this litigation.

LEGAL FRAMEWORK Trespass and Nuisance [71] The Claimants have pled two land torts: trespass and nuisance. [72] In LexisNexis, Canadian Tort Law, 12th ed. (Toronto: LexisNexis, 2022), Linden et al, at p. 535, the learned authors cite theessential elements of the tort of trespass as follows: 1. A direct and physical intrusion onto land that is in the possession of the plaintiff; 2. The trespassing act need not be intentional, but it must be voluntary; and 3. The trespass will be actionable without proof of damage. (Footnotes omitted) Also see AM Gold Inc. v.

Kaizen Discovery Inc., 2021 BCSC 515, at para 337. [73] Trespass to land consists of entering upon the land of another or placing, throwing, or erecting some material object thereonwithout the legal right to do so: Linden, at p. 556. The impugned substance may or may not be toxic. Thus, “even to have thrown water,or garbage, or snow, or earth tippings or any other substance on the property would equally have amounted to

an act of trespass”: Linden,p. 538; Jae’s Honey Ltd. v. British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2022 BCSC 1513, citing Friesen et al v. Forest Protection Limited, (NB KB). [74] In Johnson v. British Columbia Hydro and Power Authority, , at para 21, the B.C. Supreme Court held that if astructure such as a road is placed on another’s land, it constitutes “continuing trespass” as long it remains. Also see: Imperial Oil Ltd vAlberta (Minister of Transport), 2023 ABKB 115 . [75] Mistake is not a defence to trespass.

It matters not that the trespasser did not intend to do a wrongful act, simply that the intrusionwas a voluntary and affirmative action on the part of the trespasser: Lahti v. Chateauvert, 2019 BCSC 1081 , para. 8, citingScott v. PDF Training Inc. et al., 2004 BCSC 1646, at para. 174, aff’d 2008 BCCA 35; Shaman v. Meek, 2019 BCSC 9, atpara. 31; Peter Ballantyne Cree Nation v.

Canada (Attorney General), 2016 SKCA 124 , leave to appeal ref'd [2017] S.C.C.A.No. 95, paras. 131 and 132. [76] In this case, the Defendants concede that W.W. entered onto the Claimants’ land and placed a metal grate, PVC culvert andreground asphalt on the Claimants’ Property. In doing so, he interfered with the Claimants’ Property. [77] In order to succeed with an action in trespass, the Claimants must prove a right of possession. It is not sufficient they have legaltitle, they must also show they possess and control the land: Peter Ballantyne; Shaman; AM Gold, paras. 338-340.

Where an owner hasgiven up possession, such as in a landlord-tenant situation, the owner cannot maintain an action in trespass: Linden, p. 541. [78] In this case, the Claimants have proven they have title to the land: Exhibit 3, Certificate of Title No. BW321204. Hence, theClaimants are presumed to be in exclusive possession of the Claimants’ Property: Linden, at p. 541. Also see Filliol v. Kozlowski, 2002ABQB 767 , para. 7.

There is no registered or unregistered encumbrance against the title to the Claimants’ Property indicatingthey have surrendered possession of that portion of their property on which the Defendants’ driveway is located. The Defendants havenot argued otherwise. Defence of Consent [79] Consent is a defence to an action in trespass. Consent may be express, tacit or implied: Linden, p. 553, citing Montreal Trust Co.v. Williston Wildcatters Corp., 2004 SKCA 116 (SKCA), at paras. 23-24.

However, the Claimants are not required to accommodate theDefendants, even though they may have a reasonable need or desire to enter onto their property: Peter Ballantyne, para. 130, cited inHowes v. FortisBC Inc., 2021 BCSC 2271 , para. 56; Ward v. Cariboo Regional District, 2021 BCSC 1495 , para. 50;

Shaman, para. 36. [80] In Lahti, p. 7, Justice Young summarizes the principles of the defence of consent set out in Montreal Trust at paras. 23-24,adopted by the BC Supreme Court in Urbanczyk v. 1128 Enterprises Ltd., 2019 BCSC 117, at para. 74: 1. The defence of consent or “leave and licence” provides that no trespass will be committed if the defendant acted with the express orimplied consent of the plaintiff: Montreal Trust Co. at paras. 23, 29. 2.

If the defendants’ conduct goes beyond the permission given, those actions exceeding the scope of consent will not be protected byleave and licence: Montreal Trust Co. at para. 31. 3. The burden of proving leave and licence rests on the defendant: Montreal Trust Co. at para. 23. 4. Leave and licence can be proven: 1) By an express agreement that amounts to leave and licence; or, 2) it can be implied (

a) through conduct; (

b) through acquiescence;or, 3) a combination of all three. All relevant circumstances must [sic] examined to determine whether the conduct of the plaintiffamounts to leave and licence on the facts of the case. [Montreal Trust, at para. 23] [81] An owner and possessor of land who consents to a trespass is free to revoke that consent: Manak v. Hanelt, 2022 BCSC 1446(CanLll), at para. 41.

Where a formerly consenting property owner and possessor withdraws consent, then the object or encroachmentwill constitute a continuing trespass until it is removed or the encroachment continues: Peter Ballantyne, para. 32, cited in Shaman atpara. 31; Johnson v. British Columbia Hydro and Power Authority, , at para. 21 (BCSC); Gambling v. Dykes, 2021BCSC 938 , aff’d 2021 BCCA 434 ; Ward. [82] In Sidiropoulos v. Sullivan, 2002 BCSC 1271, Justice Paris addressed the continuing nature of the trespass where defendants hadrenovated a structure that encroached on their neighbours’ property.

Justice Paris stated at para. 18: [18] Clearly, the entering into and continuing possession of the 12th Avenue house by the defendants knowing of the encroachment onthe neighbouring land constituted and constitutes a continuing trespass. They knew that in order to legalize the trespass there would haveto be an agreement, or failing that, an order of the Court which would have to be obtained by the institution of legal proceedings.

Theyalso knew they would have to pay compensation for the right to encroach. [83] In this case, the Defendants’ driveway existed in its present configuration before and after the Claimants’ purchased [omitted forpublication] in [omitted for publication]. I accept that for many years the Defendants used that portion of their driveway that encroachedon the Claimants’ Property with the Claimants’ acquiescence or consent. [84] I accept that W.W. believed he had the right to maintain his driveway with grading and snowplowing, etc.

Clearly, the Claimantsdid not consider the 2020 Improvements within the ambit of their consent to the Defendants using the Claimants’ Property. Specifically,the scope of the Claimants’ consent, whether it be express, implied, or tacit, did not extend to the Defendants making the 2020Improvements on the Claimants’ Property between August 28, 2020 and October 9, 2020. [85] W.W. thought he was building the rock wall entirely on his own property and the [omitted for publication] allowance. I accept hewas not aware of the minimal trespass of 13 centimetres onto the Claimants’ Property.

There is no suggestion the Claimants consented tothis encroachment. Mistake is no defence to trespass. [86] W.W. denied the Claimants’ allegations that he had removed soil from the Claimants’ Property and placed it on the Defendants’Property. He maintains that any soil he moved on the Claimants’ Property when making the 2020 Improvements remained on theClaimants’ Property.

Specifically, the soil he dug up to install the culvert was returned to the same area, back-bladed and smoothed over.The pile of soil the Claimants say observed on the Defendants’ Property originated from the Defendants’ Property. [87] W.W. denied the reground asphalt he installed on his driveway was 4” to 6” thick. Joint Tortfeasors [88] The Claimants have named both W.W. and B.W. as Defendants in these proceedings even though it was W.W. who initiated thetrespass by exceeding the Claimants’ consent to the encroachment with the 2020 Improvements. [89] In Horseshoe Bay Retirement Society v. S.I.F.

Development Corp., (BC SC), Justice Shaw adopted TindalC.J.’s following statement in Petrie v. Lamont (1841), 174 E.R. 424 at 426: “all persons in trespass who aid or counsel, direct, or join,are joint trespassers.” [90] In this case, I am satisfied that B.W. joined in the trespass by using the encroachment for a driveway and therefore is a jointtrespasser. CONCLUSION ON TRESPASS [91] I accept Darko Ognjanov’s Certificate of Location as an accurate description of the nature and degree of encroachment of theDefendants’ driveway and rock wall onto the Claimants’ Property. Specifically, I find: a.

The Defendants’ driveway encroached on the Claimants’ Property by 562 centimetres (or 5.6 metres, or approximately 18 feet); and b. The rock wall the Defendants constructed encroached onto the Claimants’ Property by 13 centimetres (5.11 inches).

[92] The encroachment of the Defendants’ driveway onto what is now the Claimants’ Property existed prior to either party acquiringtheir respective properties on [omitted for publication]. The trespass arose as a result of the 2020 Improvements. Prior to this event, theClaimants had consented to the Defendants’ driveway. [93] I do not find the Claimants have established on a balance of probabilities that the Defendants’ shed, timbers, wood piles,containers, and other items, constituted a trespass to the Claimants’ Property.

Moreover, even if some of these items had breached theproperty line at some point, then it was a de minimis trespass, and the Defendants have since moved the offending items so they are nowclearly on the Defendants’ Property. REMEDY FOR TRESPASS [94] Where there is a trespass, the court can order compensatory damages. In Urbanczyk, Justice Butler states: [79] Trespass is actionable without proof of damages: Graham, at para. 49. A plaintiff is entitled to be compensated by damagessufficient to place him or her in the same position as if the wrong had not occurred.

Damages will include compensation for loss of use ofland and for loss of amenities. In addition, a plaintiff is entitled to damages for remedial work, provided however that damages must befair and reasonable: Kates v. Hall (1991), (BC CA), 53 B.C.L.R. (2d) 322 (C.A.). [95] In Manak (at para. 48), Justice Norell discusses the three types of damages for trespass absent extenuating circumstances thatgive rise to claims of exemplary or punitive damages. These are: [48] . . . (

a) nominal damages if the owner has not proven any actual loss; (

b) actual damages suffered by the owner; or (

c) damages equal to a sum that should reasonably be paid by the trespasser for the use of the land. [96] Justice Norell goes on to state (at para. 49): [49] Nominal damages in neighbourly disputes are often a conventional figure of $1 that recognizes the infringement of theright: Skrypnyk v. Crispin, 2010 BCSC 140at paras. 23 and 25.

For example, in Skrypnyk, the plaintiffs were awarded $1 in nominaldamages, and $3,000 for the temporary loss use of their land and loss of amenities as a result of the loss of trees at the back of theirproperty, plus special damages to investigate and remedy the loss of support (paras. 27-34). [97] In Gambling, Justice Winteringham found that part of the defendants’ house, deck, and fence constituted a continuingencroachment on a neighbouring property. She granted injunctive relief, ordered the defendants to remove the encroaching structures,and awarded the plaintiff $5,000 in damages.

An injunction is forward-looking – it forbids future harm from occurring; damages arebackward-looking – it compensates for past harm. For that reason, the superior courts will sometimes couple injunctive relief with anaward of damages. [98] The Provincial Court of British Columbia is a statutory court and has no inherent jurisdiction. Only the BC Supreme Court hasthe jurisdiction to order injunctive relief. [99] The Claimants have put into evidence an estimate from Swift Wolf Contracting (Felix Wolf) indicating the cost to remediate theClaimants’ Property would be $25,987.05.

W.W. testified he could perform the remediation in two or three days, working two or threehours per day. On June 22, 2023, after the end of the evidence, the Claimants and Defendants agreed that W.W. could remediate theClaimants’ Property to the condition it was prior to his 2020 Improvements. His work was to be monitored by a third party acceptable toboth parties. The parties agreed that Dennis MacKenzie of D.

Custom Landscaping in Williams Lake would monitor the remediation.Both parties had photographs of the driveway prior to the 2020 Improvements, so there was no issue as to how the Claimants’ Propertyshould look post-remediation. The Defendants would bear the entire cost of remediation as well as the expense of the third-partymonitor.

The Claimants’ Property was to be fully remediated by July 10, 2022; thereafter, the Defendants would cease all trespass ontothe Claimants’ Property. [100] On August 1, 2022, the parties appeared before the court and confirmed the Claimants’ Property had been fully remediated to theClaimants’ satisfaction. Specifically: a. The Defendants removed in its entirety the catch basin, grating, PVC piping, culvert, and reground asphalt which W.W. had installedin the 2020 Improvement project that encroached on the Claimants’ Property; b.

The encroaching portion of the Defendants’ driveway was restored to the condition which existed prior to the 2020 Improvements; c. The Defendants have created a new driveway that is entirely on the Defendants’ Property; d. The 13 centimetres of rock wall encroaching on the Claimants’ Property has been removed; e. All “gravel, rocks, timbers, firewood, and containers, and other items” belonging to the Defendants’ lakeside are squarely on theDefendants’ Property; and f.

The Defendants’ little shed on the lower portion of their property is not set back 4.5 feet from the Claimants’ Property line; however,the Claimants are not asking it be moved. [101] The Claimants’ only complaint about the remediation process was that the monitor, Dennis MacKenzie, spent significantly moretime with the Defendants than with the Claimants. I advised the Claimants that because Mr. MacKenzie’s job was to supervise and

monitor W.W.’s remediation work, it made sense he would be spending more time in the presence of W.W. than he would with theClaimants. [102] The only damages the Claimants sought for the Defendants’ continuing trespass was an end to the trespass and remediation of theClaimants’ Property. Even so, the Defendants paid a significant price for the 2020 Improvements. Not only did they have to undertakethe work and incur the expense necessary to remediate the Claimants’ Property, they also had to construct a new driveway entirely onthe Defendants’ Property.

I gather this new driveway would have a significantly steeper grade than their former driveway. [103] On December 5, 2023, this matter came back before me in Williams Lake Provincial Court for further submissions and adecision. Both Claimants and both Defendants and L.W. attended at Court. On this date, the parties advised me that on September 26,2023, the Claimants reported to the Royal Canadian Mounted Police that W.W. had again trespassed on their property.

The RCMPinvestigated the incident and issued W.W. a violation ticket for the offence of trespass in the amount of $120: Trespass Act, RSBC 2018,c 3, s. 3; Offence Act, RSBC 1996, c 338; Violation Ticket Administration and Fines Regulation, BC Reg 89/9. I understand theDefendants have paid this violation ticket, and the September 26, 2023 incident is now concluded and Police File 2023-7512 closed. [104] Also on December 5, 2023, the Claimants provided further submissions focussing on L.W.’s September 12, 2022 letter whichformed part of Exhibit 4.

For expediency sake, I have reproduced S.G.’s submissions on behalf of the Claimants below: I feel that throughout the court proceedings that both M. and I have been subject to even further lies, harassment and misinformationwhich should have been addressed thereby mitigating this behavior from continuing as it has. Disappointingly, this has not only beenfrom Mr. and Mrs. W., but now includes Mrs. L.W. who is present in the court today. Mrs. L.W. took it upon herself to write, date, and sign a scathing letter to us without knowing the facts.

The contents of the letterdefamed my husband and myself and centered on a personal attack of my character and well being. This was very distressing, completelydisrespectful and was completely unwarranted. There was no standard of decency that should have prevented her from doing so. Undertaking letter writing to address people that you know nothing of firsthand, and then basing it on incorrect third party informationfrom Mr. and Mrs. W. was improper, inappropriate and extremely spiteful. Mrs.

L.W. only added to the unjust treatment which we were already experiencing, and she really had no reason to involve herself in ourprivate business. Better judgement on her part would have saved us additional distress, we feel that at the very least an apology from heris in order.

Our hope is that upon receiving the outcome from these court proceedings, we will have the right to remain free from any furtherbullying, harassment, lies, and written correspondence from these parties thereby allowing us to once again move comfortably and withinour own yard and community. [105] I am to not share the Claimants’ view of L.W.’s letter, however, I accept they are aggrieved at its content. [106] The Defendants seek an apology from L.W. She is not a party to these proceedings, and I have no jurisdiction to make such anorder.

Nevertheless, L.W., who was present in court, apologized to the Claimants - sort of. She went on to explain that from herperspective the Claimants, upon filing their Notice of Claim against these elderly upstanding senior citizens, launched the first volleyacross the bow. She says the Claimants put the Defendants “through hell” by suing them two years after the completion of the 2020Improvements. The Defendants, no less than the Claimants, feel harassed, maltreated, and distressed by this lawsuit. [107] The Claimants’ and Defendants’ relationship has completely unravelled and their neighbours are polarized.

Sadly, this is acollateral consequence that often ensues when property disputes between neighbours are fought out before the courts. Nuisance [108] Nuisance is another land tort the Claimants have pled. Unlike trespass which involves direct interference to another’s land,nuisance arises when a person indirectly interferes with another’s enjoyment of their land. Private nuisance can arise from objectionableactivities such as loud noises, vibrations, noxious odours, smoke, bright lights, and soil or water pollution. The interference originateselsewhere than on the affected land: Lahti, at para. 57.

For example, to “throw stones upon one’s neighbour’s premises is the wrong oftrespass; to allow stones from a ruinous chimney to fall upon those premises is the wrong of nuisance”: Linden, at p. 539, citing Mann v.Saulnier, (NB CA), [1959] N.B.J. No. 12, at para. 133. [109] In Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 , the Supreme Court of Canada held that tosucceed with a claim of private nuisance, the claimant must establish an interference with their use or enjoyment of land that is bothsubstantial and unreasonable. An interference is substantial if it is non-trivial.

Often nuisance requires actual physical interference withthe property or an interference with the health, comfort, or convenience of the claimant while on the property, such as noise or odours.Where this threshold is met, the court will then consider whether the interference was unreasonable in all the circumstances. The inquiryis whether the interference with the Claimants’ Property was unreasonable, not whether the Defendants’ conduct was unreasonable. Inthis sense, nuisance is a tort of strict liability: Antrim at paras. 28-29. [110] In Royal Anne Hotel Co. v.

Village of Ashcroft, (BC CA), McIntyre J.A., noted (at p. 759), that “The essenceof the tort of nuisance is interference with the enjoyment of land.” He then goes on to state: . . . That interference need not be accompanied by negligence. In nuisance one is concerned with the invasion of the interest in the land,in negligence one must consider the nature of the conduct complained of. Nuisances result frequently from intentional acts undertakenfor lawful purposes.

The most carefully designed industrial plant operated with the greatest care may well be or cause a nuisance, if forexample effluent, smoke, fumes or noise invade the right of enjoyment of neighbouring land owners to an unreasonable degree: . . . [111] The Claimants say the Defendants created a nuisance by placing unwanted items on the Claimants’ Property. This is

an act of

trespass, which I have already addressed. The Claimants also considered a nuisance the noise from W.W.’s construction projects. Noisecan be a non-trespassory interference with another’s use of their land. [112] Although the Claimants indicated they were not seeking monetary damages for noise, they still maintained their claim fornuisance. As the tort of trespass deals with the Defendants’ unwanted intrusion onto the Claimants’ Property, noise emanating from theDefendants’ Property is the Defendants’ only act or failure to act which interfered with the Claimants’ use and enjoyment of theirproperty.

In the event the Claimants are still looking for compensation for nuisance, I have addressed the noise complaint below. [113] Officer Cunningham testified that he came to investigate the Claimants’ complaint about W.W. using his backhoe in the earlymorning. The Cariboo Regional District Noise Regulation and Prohibition Bylaw No. 4713, 2012, has a special provision forconstruction noise. It reads: 6. CONSTRUCTION HOURS (

a) No person in the service area shall on any day before 07:00 hours or after 22:00 hours, construct, erect, reconstruct, alter, repair ordemolish any building, structure, or thing or to excavate or fill-in land in any manner which disturbs the quiet, peace, rest, enjoyment,comfort or convenience of the neighbourhood or of persons in the vicinity. (

b) Where it is impossible or impractical to comply with this section, the Authorized Person may give written approval to carry on thework that is found to be necessary at designated hours. Responsibility for obtaining written approval lies with the person carrying on thework. [Emphasis in original.] [114] The Claimants cited only one incident of W.W. violating this noise bylaw, and that was on May 15, 2021, when he beganoperating his backhoe at 5:45 a.m. [115] I note that compliance with applicable bylaws does not mean that the impugned activity cannot be a nuisance: Suzuki v.

Munroe,2009 BCSC 1403 , citing Schuster Real Estate Co. v. Kenny, (BC CA). [116] I understand the Claimants’ allegations of nuisance arose from the Defendants’ construction noise. The Claimants state: . . . He then proceeded to put his earmuffs back on and continue doing the work that he had started. Work continued over the course ofseveral weeks, virtually non stop with the backhoe, moving dirt, dumping, placing rock, and having loads of paving brought in on a dailybasis. This took place between August 28, 2020 – October 9, 2020. [117] The Claimants do not say how many hours a day the Defendant worked.

I glean from his testimony that because of age and healthconcerns, W.W. can only work a couple of hours per day. I do not know if that was the case in 2020. I understand it took W.W.approximately six weeks to complete the 2020 Improvements. It took far less time to remove the impugned items. [118] I accept that six weeks of construction noise is more than trivial, particularly if it continues at length. The question is whether thisconstituted an unreasonable interference with the Claimants’ Property. In O’Connor v. Canadian Pacific Railway Limited, 2023 BCSC1371 , C.J.

Hinkson states: [176] The reasonableness of the interference analysis may consider a number of factors, including: the character of the neighbourhood,the severity of the interference, the utility of the defendants’ conduct, and whether the defendants took any precautions: Antrim atparas. 26, 29. [119] The Defendants’ construction noise occurred in a residential neighbourhood. It arose from W.W. operating heavy machinery tomove rocks and earth and wood.

I accept W.W. did this for a useful purpose and was not simply making noise for noise-sake or to annoyhis neighbours. [120] I do not consider the fact W.W. operated heavy equipment in the course of a construction project unreasonable per se. Even in aresidential neighbourhood, a homeowner can be expected to engage in construction projects from time to time. Some of those projectsmay require noisy heavy equipment. I do not know what precautions W.W. took to mitigate the noise from the machinery. I do not knowwhat precautions he could have taken. [121] S.G. provided only a minimal account of the noise.

No other witnesses testified with respect to this issue. The Claimants adducedno expert reports or testimony. The court received no objective evidence of excessive noise as a result of W.W.’s use of heavy equipmentin the course of his construction projects. To the contrary, the Defendants tendered into evidence at trial a number of letters of supportfrom their neighbours on [omitted for publication]. This suggests to me that at least those neighbours were not unduly concerned aboutthe Defendants’ construction noise. [122] W.W.’s construction noise is the crux of the Claimants’ nuisance claim.

Despite the dearth of evidence, I accept that theClaimants’ nuisance claim is not frivolous and that there is a serious question as to whether the Defendants’ construction noise amountsto a non-trivial and unreasonable interference with the Claimants’ use and enjoyment of the Claimants’ Property. Noise can constitutea nuisance at law.

However, I am not satisfied on the dearth of evidence before me that the noise generated by W.W. operating heavyequipment on the Defendants’ Property constituted an unreasonable and substantial interference with the Claimants’ use and enjoymentof the Claimants’ Property: Sutherland v. Vancouver International Airport Authority, 2002 BCCA 416, at para. 34. Defamation [123] The Claimants say the Defendants have defamed them both orally (slander) and in writing (libel) by making statements to thirdparties that were false. The Defendants deny this allegation.

[124] The Provincial Court of British Columbia does not have jurisdiction to try defamation cases.

Section 3 of the Small Claims Actstates: Claims the court may hear 3

(1) The Provincial Court has jurisdiction in a claim for (

a) debt or damages, (

b) recovery of personal property, (

c) specific performance of an agreement relating to personal property or services, or (

d) relief from opposing claims to personal property if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation,excluding interest and costs.

(2) The Provincial Court does not have jurisdiction in a claim for libel, slander or malicious prosecution. . . . [Emphasis added.] [125] In the event it may be of assistance to these self-represented litigants, I have set out below the law as it applies to the tort ofdefamation. [126] The Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, is the seminal case on defamation.

At para. 28,McLachlin C.J. for the majority states (citations omitted): [28] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that theimpugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;(2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at leastone person other than the plaintiff.

If these elements are established on a balance of probabilities, falsity and damage are presumed,though this rule has been subject to strong criticism: . . . (The only exception is that slander requires proof of special damages, unless theimpugned words were slanderous per se: . . .) The plaintiff is not required to show that the defendant intended to do harm, or even thatthe defendant was careless. The tort is thus one of strict liability. [127] In Weaver v. Corcoran, 2017 BCCA 160, the court noted at para. 71: [71] Words may convey a defamatory meaning literally, inferentially or by legal innuendo.

Literal meaning is conveyed directly;inferential meaning, indirectly; and legal innuendo, by extension based on extrinsic facts. These alternate means of proof weresummarised by Hinkson J.A., as he then was, in Lawson: [13] There are three alternate means by which defamation can be proven:

a) If the literal meaning of the words complained of are defamatory;

b) If the words complained of are not defamatory in their natural and ordinary meaning, but their meaning based upon extrinsiccircumstances unique to certain readers (the “legal” or “true” innuendo meaning) is defamatory; or

c) If the inferential meaning or impression left by the words complained of is defamatory (the “false” or “popular” innuendo meaning). [128] In Hudson v. Myong, 2020 BCSC 517, at para. 109, Justice Douglas noted that not all unkind or potentially offensive statementsabout a person will be defamatory: [109] Generally speaking, mere words of abuse which injure a person’s feelings, insult his or her pride, or cause annoyance orembarrassment are not actionable. The law does not redress solely for wounded sensibilities.

Nor is there an action for insults which donot diminish a person's standing in the community; the law regards as innocuous language which is merely offensive and vituperative . . . [129] In Seymour v. Nole, 2022 BCSC 867 , Justice Shergill states: [228] What was specifically understood by the persons to whom the defamatory communication was made, is not the focus of theinquiry. As stated by Justice Prowse in Kerr v. Conlogue (1992), (BC SC), 65 B.C.L.R. (2d) 70 (S.C.) at para. 79-80: “[T]o prove that the

Article is capable of being defamatory or in fact is defamatory, there is no onus on the plaintiff to prove thatreasonable people actually understood the words in a defamatory sense. Rather, the plaintiff is only required to prove that the ordinaryreasonable person might have understood it in a defamatory sense. The Plaintiff does not have to prove that persons to whom it waspublished in fact did think less of him: indeed a person may be defamed even though those to whom the statement is published know it tobe untrue”. [229] Where there could be a number of non-defamatory

interpretations, it is unreasonable to seize upon the only bad one to give thewords a defamatory meaning: Lawson v. Baines, 2012 BCCA 117 at para. 57 [230] Although truth is a defence to defamation, uttering a falsehood does not mean that defamation has been proven. Words are

considered defamatory where they “tend to lower the plaintiff’s reputation in the eyes of a reasonable person”: Grant at para. 28. [130] To the extent the Claimants seek damages from the Defendants for defamation, be it libel or slander, they will have to bring theirclaim in the BC Supreme Court. Harassment [131] The Claimants say they were bullied and harassed by the Defendants’ actions, which the Defendants deny. W.W. says he has notspoken to S.G. in three years. B.W. says the Defendants simply showed their neighbours the Notice of Claim for the purposes of seekingletters of support in this litigation.

The neighbours’ views of the Defendants, and more specifically, their opinions about S.G., werewrought from their own interactions with her.

It is not unexpected that in the circumstances of this case, the neighbours would side withone party or the other. [132] The Notice of Claim requires the court to consider what the Claimants mean by “bullying and harassment” and whether theimpugned conduct is actionable. [133] The Merriam-Webster’s Collegiate Dictionary (10th ed. 1994) defines “bully, bullied, bullying” as: 1. to treat abusively; 2. toaffect by means of force or coercion: to use browbeating language or behaviour (p. 151). In lawsuits, allegations of bullying are oftenused in conjunction with allegations of harassment: Williams v.

Simon Fraser University, 2018 BCSC 1787 . I will regard theClaimants’ allegations of bullying under the rubric of harassment. [134] The Claimants do not rely on any statutory provision prohibiting harassment in the civil context applicable in the circumstances ofthis case. For example, harassment typically refers to humiliating or intimidating behaviours in the school or workplace or in the contextof a residential tenancy or human rights complaint. Even then, not every inappropriate, uncivil, or unpleasant behaviour is serious enoughto be considered harassment. [135]

Section 264 of the Criminal Code, R.S.C. 1985, c. C-46, recognizes the offence of criminal harassment which involves anoffender repeatedly following, communicating with, and threatening the complainant in a manner that reasonably causes them to fear fortheir safety or that of anyone known to them. Section 264(1) states: Criminal harassment 264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the otherperson is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, tofear for their safety or the safety of anyone known to them. Prohibited conduct

(2) The conduct mentioned in subsection (1) consists of (

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries onbusiness or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. [136] Before a person can be convicted of criminal harassment, the Crown must prove the following essential elements beyond areasonable doubt: a. the accused, without lawful authority, engaged in one or more of the types of conduct described in s. 264(2); b. the complainant was harassed by the conduct; c. the accused knew that the complainant was harassed by the conduct or was reckless or wilfully blind to that fact; d. the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and e. the complainant's fear was, in all the circumstances, reasonable. [137] Whether there exists a common law tort of harassment in Canada is still an open question.

Harassment typically involvesunwanted and repetitive behaviour that the offender knows, or ought to know, will have the effect of harming or threatening to harm thecomplaint target. [138] In Alberta Health Services v. Johnston, 2023 ABKB 209 , a recent case of the Alberta Court of King’s Bench, JusticeFeasby states at paras. 106 -107: [106] My view, based on the offence of criminal harassment, is that the essence of harassment is repeated or persistent behaviour.

Asingle encounter where threats and insults are made or where other offensive behaviour takes place may be actionable on other groundsbut it is not harassment. Harassment occurs when the behaviour is recurring and creates an oppressive atmosphere. Any definition ofharassment must specify that the behaviour is repeated. [107] Based on the foregoing, I define the tort of harassment as follows. A defendant has committed the tort of harassment where he

has: (1) engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means; (2) that he knew or ought to have known was unwelcome; (3) which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety or the safety of her loved ones, orcould foreseeably cause emotional distress; and (4) caused harm. [139] The British Columbia Courts have followed Ontario in refusing to recognize a common law tort of harassment: Ilic v. BritishColumbia (Justice), 2023 BCSC 167 , at para. 196, citing Anderson v.

Double M Construction Ltd., 2021 BCSC 1473, atpara. 61; Skutnik v. British Columbia (Attorney General), 2021 BCSC 2408, at para 32; Gaucher v. British Columbia Institute ofTechnology, 2021 BCSC 289, at para. 86; Stein v Waddell, 2020 BCSC 253 ,at para. 32; Merrifield v. Canada (AttorneyGeneral), 2019 ONCA 205, leave to appeal ref’d in (SCC). In Ilic, Justice Forth states at para. 196, “As such, therecannot be a duty of care to protect against the commission of a tort that does not exist at law: Lee v. Magna International Inc., 2022ONCA 32 at para. 10.” Also see Galton Corporation v.

Riley, 2023 MBKB 73 , paras. 32-34. [140] In Nevsun Resources Ltd. v. Araya, 2020 SCC 5 , the Supreme Court of Canada cites McLean v. McLean, 2019 SKCA 15, at paras. 103-5 , for the proposition that the proposed tort of harassment failed at the necessity stage because the existing tortof intentional infliction of mental suffering was already available to redress conduct that is alleged to constitute harassment: [239] As we described above, a difference merely of damages or the extent of harm will not suffice to ground a new tort (Scalera).

Theproposed torts of “harassment” and “obstruction” also failed at the necessity stage. As the Saskatchewan Court of Appeal recentlyobserved in McLean v.

McLean, 2019 SKCA 15, at paras. 103-5 , the proposed tort of harassment was entirely encompassed bythe tort of intentional infliction of mental suffering and so need not be recognized as a distinct tort (see also Merrifield, at para. 42). . . . [141] I have considered whether the Claimants’ allegations could be viewed through the lens of the tort of intentional infliction of harm,also known as intentional infliction of nervous shock or mental suffering or mental distress: Universe v. Fraser Health Authority, 2019BCCA 234, at para. 23. In R.T. v.

Lowe, 2021 BCSC 590, Marchand, J. as he then was, set out the elements of this tort as follows: [50] The elements of intentional infliction of mental suffering are: (1) conduct that is flagrant and outrageous; (2) calculated to produceharm; and (3) resulting in a visible and provable illness: Young v. Borzoni, 2007 BCCA 16 at paras. 24, 35-39.

Generally, a visible andprovable illness requires proof of a recognizable psychiatric illness: Young at paras. 35-38. . . . [Also see S.C. v I.E.W, 2023 BCSC 1653.] [142] I agree with the Claimants that this dispute may have been capable of an amicable solution had the Defendants dealt with theClaimants’ concerns in a timely and respectful manner. Still, I do not consider W.W. embarking on the 2020 Improvements withoutnotice to, or the consent of, the Claimants, conduct that could be characterized as “flagrant and outrageous”.

I accept that W.W. believedthe 2020 Improvements would benefit both the Defendants and the Claimants. I recognize that W.W. had a long history of maintaininghis driveway and [omitted for publication] without consultation with the Claimants. I do not find either Defendant behaved in the mannerthey did in order to harm the Claimants. [143] In Saadati v.

Moorhead, 2017 SCC 28, at para. 37, the Supreme Court of Canada held that when alleging a mental injury in tort,plaintiffs must prove on a balance of probabilities the mental disturbance from which they are suffering ‘‘‘is serious and prolonged, andrise[s] above the ordinary annoyances, anxieties and fears’ that come with living in civil society.” It is the symptoms and the effects of amental injury that are relevant, and not whether there is a specific label attached to the mental injury itself: Saadati at para. 31. [144] I have insufficient evidence that the Claimants, or either of them, suffered from a “visible and provable illness” resulting from theDefendants’ conduct.

PUNITIVE DAMAGES [145] I have considered other ways in which the Gs’ claim for non-pecuniary damages might be characterized, including punitivedamages. [146] In this case, the Claimants found offensive the Defendants’ conduct of “mis-sharing” information with their neighbours. [147] The governing authority on punitive damages is Whiten v. Pilot Insurance Co., 2002 SCC 18. In Ojanen v. Acumen LawCorporation, 2021 BCCA 189, the BC Court of Appeal provided the following

summary on the law of punitive damages: [77] The three objectives of punitive damages are retribution, deterrence, and denunciation. Punitive damages awards should beapproached with caution and restraint and resorted to only in exceptional circumstances: Whiten at para. 69. Punitive damages awards arerational only when compensatory damages do not adequately achieve the objectives of retribution, deterrence, anddenunciation: Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19at para. 87. [78] In Whiten at para. 94, the Court set out the factors that should be taken into account when considering an award for punitivedamages. The factors include:

a) Punitive damages are the exception rather than the rule, imposed only if there has been high-handed, malicious, arbitrary, or highlyreprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour;

b) Punitive damages are generally awarded only where the misconduct would otherwise be unpunished or where other penalties are

unlikely to achieve the objectives of retribution, deterrence, and denunciation;

c) Punitive damages are awarded only if compensatory damages (which to some extent are punitive in nature) are insufficient toaccomplish these objectives, and the amount awarded is no greater than necessary to rationally accomplish their purpose;

d) The purpose of punitive damages is not to compensate the plaintiff, but to give a defendant his or her just desert (retribution), to deterthe defendant and others from similar misconduct in the future (deterrence), and to mark the community's collective condemnation(denunciation) of what has happened;

e) Punitive damages should be assessed in an amount reasonably proportionate to the harm caused, the degree of the misconduct, theplaintiff’s relative vulnerability, and any advantage or profit gained by the defendant, having regard to any other fines or penaltiessuffered by the defendant; and

f) Moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient. [148] In Smithies Holdings Inc. v. RCV Holdings Ltd., 2017 BCCA 177, Groberman J.A., at para. 134, discussed the difference betweenpunitive damages and special costs. Punitive damages are awarded for conduct related to the cause of action, while special costs areawarded to punish and deter reprehensible conduct in the course of litigation. The Small Claims Rules, BC Reg 261/93 does not give theProvincial Court jurisdiction to award special costs for misconduct of the litigation. [149] I have reviewed and considered: (

a) Bowen Contracting Ltd. v. B.C. Log Spill Recovery Co-operative Association, 2009 BCCA457 , a case of trespass, (para. 23 ); and (

b) Gokey v Usher, 2023 BCSC 1312 , a case in nuisance. [150] With respect to the 2020 Improvements, I find W.W.’s conduct wilful and inconsiderate of the Claimants’ views and proprietaryinterests. W.W.’s behaviour justifies an award of pecuniary and non-pecuniary damages, but not punitive damages. I do not find theDefendants’ behaviour was “malicious, oppressive and high-handed” or misconduct that “offends the court’s sense of decency”, meaningmisconduct that represents “a marked departure from the ordinary standards of decent behaviour” (Whiten, para. 36).

In this respect, Irecognize that at various times in the course of this litigation, W.W. offered to return the Defendants’ encroachment on the Claimants’Property to the state it was in prior to the 2020 Improvements. [151] The Claimants assume their falling out with other neighbours was the result of the Defendants gossiping about them. I have noevidence from any of these neighbours this was the case. The Defendants showed the neighbours the Notice of Claim. It is a publically-filed court pleading that is not subject to any publication bans.

The Defendants say they showed the Notice of Claim to the neighbours inan effort to obtain letters of support. For the most part, these letters were simply testimonials to the Defendants’ good character. I do notconsider the Defendants actions in this regard as vindictive or malicious or reprehensible. [152] The Claimants say the Defendants and L.W.’s written statements to the court included false and irrelevant personal informationabout S.G. (see Exhibit 4).

It would have been preferable if the Defendants had resisted the temptation to personalize their conflict withthe Claimants in the manner they did; still, I do not believe this in itself justifies an award of punitive damages for the tort of trespass. [153] Punitive damages are to punish and deter the wrongdoer. In my view, the fact the Defendants had to remediate the Claimants’Property at their own expense and construct a new driveway for themselves was sufficiently punitive without imposing an additionalaward of punitive damages. It cannot be said the Defendants retained any benefit from their act of trespass.

CONCLUSION [154] In conclusion, I find: • Trespass: that between August 28, 2020 and October 9, 2020, the Defendants committed an ongoing trespass on the Claimants’Property with the 2020

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