Wendell Charbonneau - v. -, 2014 SKPC 114

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: May 27, 2014 Citation: 2014 SKPC 114 File: 13/13 Location: Wynyard _____________________________________________________________________________ Between: Wendell Charbonneau - and - Cal Statchuk Wendell Charbonneau For the Plaintiff Morgan Jaster For the Defendant _____________________________________________________________________________ JUDGMENT J.A.

PLEMEL, J _____________________________________________________________________________ [ 1 ] The Plaintiff alleges that the Defendant applied a substance in the back alley next to his property which caused damage to his lawn in the Town of Wadena. A report by Back-Track Investigations and Special Services Ltd. (Back-Track), filed in these proceedings as Exhibit P-1, supports Mr. Charbonneau’s belief that damage which occurred to their back yard lawn was caused by run-off and/or leaching of a substance from the back alley. Mr.

Charbonneau claims damages in the amount of $9,903.98 together with pre-judgment interest as well as the cost of issuing and serving the summons.

[ 2 ] The Plaintiff must prove his claim on a balance of probabilities. Besides filing the report just mentioned he and his wife, Sandra Charbonneau, both testified. He also called a licenced pesticide operator named David Panasiuk, a town employee named Brian Hayes and Patrick Frith, the professional agrologist who prepared the report for Back-Track. Mr.

Statchuk testified in his own defence. [ 3 ] Having read the report and having heard the evidence of Patrick Frith, I am satisfied on a balance of probabilities that a substance, either through run-off or leaching from the back alley got into the Charbonneau’s lawn and killed it. Photographs, as well as the evidence given by Wendell and Sandra Charbonneau and David Panasiuk, further support this finding. However, I am not satisfied on a balance of probabilities that Mr.

Statchuk had anything to do with putting the substance into the back alley or that it came from the Statchuk property. [ 4 ] There are valid reasons for Mr. and Mrs. Charbonneaus’ suspicions. Mr. Statchuk has access to farm chemicals through his employment with Crop Production Services and formerly with Viterra. Sandra Charbonneau saw him dump liquid in the back alley. Mr. Charbonneau spoke with him and he stated that he has used glyphosate and Ally and may have mixed one a little strong. Both are chemicals used in weed control. The Statchuk yard is directly across the back alley from the Charbonneau’s.

Plant life has been killed only in the Charbonneau yard, but not in the yards to their right or left. The back alley slopes from the Statchuk yard toward the Charbonneau yard. [ 5 ] While the Charbonneaus’ suspicions are certainly not frivolous, the evidence does not meet the test of proof on a balance of probabilities. The Plaintiff’s own witness, Mr. Frith, is a Professional Agrologist with a Bachelor of Science Degree in Crop Science. He was qualified as an expert in this case to give opinion evidence in the area of plant chemicals including how they are to be used and their effects on lawns and gardens.

This included the effects of run-off and leaching. His evidence is that it is unlikely that glyphosate or Ally killed the lawn but that a soil sterilant was probably to blame. There is no evidence that Mr. Statchuk used a soil sterilant in his yard or in the back alley. [ 6 ] Mr. Statchuk testified that he last used Ally in his yard to control broad leaf plants in 2010. He last used glyphosate around his yard in 2012. I accept Mr. Frith’s evidence that Ally could not have caused the damage in question. Where the evidence of David Panasiuk and Mr. Frith conflict on this point, I accept the evidence of Mr.

Frith due to his level of expertise. Ally kills broad leaf plants but not grass. I also accept Mr. Frith’s evidence that if glyphosate entered the Charbonneau’s yard either by leaching or run-off, residue of glyphosate should have been found in the soil samples taken and analyzed for that particular chemical. None was found. Furthermore, glyphosate is not a soil sterilant but a herbicide. Some plant life would be expected to have emerged in the time frame discussed in evidence. [ 7 ] The pattern of dead lawn has the characteristics of a soil sterilant getting into the lawn from run-off or leaching. Mr.

Statchuk has access to soil sterilants through his employment but he testified he did not use them in his yard or in the back alley. There is no growth on Mr. Statchuk’s side of the alley but this is consistent the Defendant’s testimony that he manually removed weeds and also used glyphosate. There was a suggestion that perhaps a shed he moved from the Viterra work site may have contained a substance which leaked out, into the back alley and into the Charbonneau’s yard. However, the evidence does not support that.

In preceding years, before it was moved to the Statchuk yard, it was used to store tools, machinery and applicators. Mr. Statchuk had the floor in it replaced before moving it to his yard. [ 8 ] Mr. Statchuk states that on occasion he washed windshields of his vehicles and emptied the remaining liquid in the alley and also that he once dumped water in the alley from a gallon pail which he used in mixing concrete. Perhaps this is what the Charbonneaus observed. He denies dumping any chemicals in the back alley. I doubt that the placement of the shed, or the pouring of these liquids by Mr.

Statchuk were the source of the problem. The grass was killed along the Charbonneau’s whole property line where it borders the alley ending precisely where the Charbonneau’s yard meets their neighbour’s. Without knowing what they were looking for, the laboratory personnel where Mr. Charbonneau sent the soil samples, did not know what to test for, though they did test for glyphosate as requested. Mr. Charbonneau testified that the cost to him to test for numerous substances until they found the presence of the one killing the grass would have been prohibitive.

Therefore, there is no evidence of what substance got into the lawn and killed it. No samples were taken from the alley, to test for any chemical substance there. [ 9 ] Brian Hayes was the town employee called by the Plaintiff. From his testimony it appears highly unlikely that the offending substance came from gravel used in graveling the back alley. There were no similar issues anywhere else in town where gravel from the same source was used.

Defence led evidence of the fact that a house was demolished in the area and debris may have been removed through the back alley, suggesting that perhaps this was the cause.

[ 10 ] The onus is not on the Defendant to establish an alternative source of the offending substance. The onus is on the Plaintiff to prove his claim on a balance of probabilities and this involves proving that Mr. Statchuk was responsible for killing their lawn. For the reasons stated, I find he has not done so. [ 11 ] I therefore dismiss the Plaintiff’s claim. I am making no order as to costs. ___________________ J.A. Plemel, J