Denault v. Mitchell, 2021 NSSM 42

2020 SCC NO. 500553 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Denault v. Mitchell , 2021 NSSM 42 BETWEEN: MARK DENAULT CLAIMANT and FRED MITCHELL DEFENDANT REASONS FOR DECISION BEFORE: A. Robert Sampson, Q.C., Adjudicator DATE OF HEARING: Hearing held by conference call from Sydney, Nova Scotia on Monday, February 8, 2021 DECISION RENDERED: February 12, 2021 APPEARANCES: For the Claimant: Self-Represented – Mark Denault Witnesses: Const.

Kyla Clarke For the Defendant: Self-Represented – Fred Mitchell Witnesses: none BY THE COURT: [ 1 ] This claim was commenced by a Notice of Claim filed with the Court on September 21, 2020 and originally scheduled to be heard on January 20, 2021. As a result of Covid-19, hearings in the Small Claims Court have and continue to be held by telephone unless there are extenuating circumstances which direct otherwise.

As a result, the practice adopted by most adjudicators is to initially hold a preliminary/case ready conference with the parties to determine whether the matter can be dealt with by phone, that any anticipated exhibits to be tendered have been exchanged and whether there is a need for any special technology in connection with the anticipated evidence. [ 2 ] On January 20, 2021 this initial case ready conference was held and arrangements were finalized to ensure exhibits were exchanged.

In addition, the Claimant had previously submitted two DVD disks requesting that he be permitted to use this means for tendering videos relevant to the matters at issue. The Court inquired with both parties as to what technology was available for all and it was agreed that the information on the disks would be transferred to a memory stick. The Defendant confirmed his intention to tender photos on a memory stick as well. Both parties subsequently tendered to the Court and exchanged memory sticks with various information, mainly photos relevant to the issue(

s) before the Court. In addition, the Court reviewed with the parties other “paper” exhibits that were intended to be submitted and in the interests of time and efficiency, these were identified and numbered with the parties. The hearing date was confirmed to be February 8, 2021 and proceeded at that time, lasting approximately three hours. [ 3 ] The Court file confirms that the Claim states as follows: “defendant came on my property and cut down my cherry tree, poison my trees and deliberately put snow on bushes. Killed trees by pulling roots” The amount claimed was $2800.00.

At the outset of the hearing the Claimant referenced his Exhibit “C” which represented a quote from MJM Landscaping for the replacement/install of five burning bushes and one cherry tree (plus labour/materials) at a cost of $2070.00. Relying on this quote he amended his claim amount accordingly.

[ 4 ] The Defendant filed a Defence on October 7, 2020 stating: “Claimant tree blow down during Hurricane Dorian, Sept 2019 causing damage to front step…tree was cut up and removed from property. During stump removal claimant called police saying it was his tree. Cleanup cost $600.00. Tree(

s) has previous distress due to rot known as “black knot.” [ 5 ] At the outset the Court reviewed the general procedure to be employed in hearing the Claim, the role of each party and how evidence was to be received including the opportunity of both parties to provide their “side of the story”, that each would be afforded a chance to question the other and further that, at the end of the evidence, each would be afforded a chance to sum up their positions based on all the evidence presented.

Each witness was affirmed over the phone by the Court prior to presenting their evidence. [ 6 ] This is a claim arising out of an alleged tort (trespass/nuisance) whereby the Claimant advanced the position that as a result of the unlawful actions of the Defendant, he had caused damages to his property which in turn has caused him to suffer damages, namely the need to replace various bushes and a cherry tree situate on his property at 73 Connaught Avenue.

The Court explained at the outset that the Claimant bears the burden to provide sufficient evidence to prove, on balance, that the Defendant’s actions caused damaged to his property and, equally important, if proved that any such actions of the Defendant did in fact cause any monetary loss claimed. [ 7 ] Const. Clarke gave evidence. She had been subpoenaed by the Claimant to provide evidence surrounding her visit to the Defendant’s property at 75 Connaught Avenue on or about September 9, 2019 at approximately 5:55pm.

She was working with the Cape Breton Regional Police at the time and testified she had received a call from dispatch directing her to respond to a report that neighbors were arguing at 75 Connaught Avenue. She testified that upon arriving she recalled Mr. Mitchell being present with his brother-in-law. She confirmed that she saw a yellow rope attached to the bumper of a truck situated near the front of Mr. Mitchell’s residence leading down the side yard.

She was shown Exhibit A-3 which was a photograph taken by the Claimant asking whether she recalled where the rope led to and specifically whether it led to the location of the cherry tree as shown in the Exhibit. The Officer confirmed that she could not recall where the rope was leading to but confirmed it appeared to be in the direction of the cherry tree. She testified that she recalled telling Mr. Mitchell that he should get a boundary survey before doing anything. She further testified that she had not completed any incident report because she believed it was a civil matter.

She did not know who had made the initial call to the Police to report the concern. Finally, when questioned she could not identify anything about the cherry tree and specifically what way it was leaning. She could not recall the Claimant being present. CLAIMANT’S EVIDENCE [ 8 ] The Claimant, Mr. Denault, gave evidence. He testified that he purchased his property situate at 73 Connaught Avenue, Glace Bay in November 2017. He confirmed that his intention was to fix it up and flip it. He confirmed that he renovated extensively inside through the spring of 2018 and had a tenant residing upstairs in the home.

He stated that in the summer of 2018 he carried out various landscape work around the home, mainly re-grading the property. He stated that he personally moved into the property in September 2018 and has resided there since. He then reviewed each of the pictures included in Exhibit A (there were 11 in total) as well as his video(s) (Exhibit A-2). [ 9 ] Exhibit A-1 was presented as a picture of his back yard taken in August 2019. It showed the cherry tree at issue from his back deck and Mr. Mitchell’s home situate beyond the tree. Mr. Mitchell’s home was blue in color.

Exhibit A-2 was a photo he said he took on September 8, 2019, the day after the storm known as Dorian had moved through the Glace Bay area bringing high winds and causing extensive property damage. The picture shows a large branch which appeared to be a cherry tree branch or tree that had been blown down and at this point was lying on the ground. He testified that the storm/wind came from the east and as a result blew the tree in a westerly direction along what he believed to be the rear of his boundary line.

He confirmed that he had a chain saw and intended to cut it up and remove it. [ 10 ] He testified that the following day, September 9, 2019 he had been with a friend out for a drive and later in the day (mid- afternoon) he came home to find the branch/tree gone. It was his belief that Mr. Mitchell had taken it upon himself to remove it. At this point the Claimant’s evidence digressed to speak of the brief history of his relationship with the Mitchells. He stated that initially after moving in it was cordial and he would exchange discussions with Mrs. Mitchell. However, at some point it turned sour.

It was his belief that the Mitchells resented his trees stating that he believed they blocked their view of the ocean and they wanted them gone.

Their home (Mitchells’) was situated behind the Claimant’s and as a result their view, both into their property as well as from their property was, he felt, restricted and they wished to improve their view plane by doing what they could to remove the trees situate on his property. [ 11 ] Focusing back to the details of the alleged claim and what he believed occurred on September 9 th , he testified that he again left his property and later returned close to 6 pm where he found Mr.

Mitchell had a rope and come-a-long hooked up to the back of a truck and he believed this was connected to the stump of the tree that had been blown over the day prior. He testified that he had words with

Mr. Mitchell and told him to get off his property. He further testified that the photo in Exhibit A-3 shows Mr. Mitchell kneeling where the broken stump was located. He testified that Mr. Mitchell had thrown dirt at him as they argued. He testified that Const. Clarke had then showed up and he told her his story. Const. Clarke had no recollection of speaking with Mr.

Denault during her visit but acknowledged it was a long time ago and no incident report had been written up at the time. [ 12 ] Exhibit A-4 confirmed the marker sticks subsequently placed by the Mitchells which later led to a fence being constructed along their respective boundary line. Mr. Denault also used this picture to reference the property situate across the street from the Mitchells suggesting he had planted shrubs on the neighbor’s property and later had to remove them. The shrubs are shown off in a distance on this photo.

He went on to review the balance of the photos evidencing the remainder of the cherry tree as well as several “burning bushes” which were situate along the rear of his boundary. He specifically highlighted the last bush situated at or near the corner of his property which was less than clear in the photos provided, which he felt was significantly higher than the other burning bushes.

This was referenced to confirm his belief that the Defendant’s actions of throwing snow onto his real property and specifically onto his burning bushes (except the last one in the row) had effectively stunted their growth which forms the basis for part of his claim. In further support of this he showed a video (Exhibit A-2) which showed Mr. Mitchell during the winter of 2020 shoveling snow along the side of his home (where no driveway or designated walkway existed) and throwing the snow over towards the Claimant’s rear property in the approximate location where these “burning bushes” were located.

He presented a winter photo (Exhibit A-9) of these bushes taken on January 6, 2021. Other photos, given in evidence (Exhibits A-4 & 5) taken in June/July 2020 showed pictures of these same bushes, appearing healthy and green. He also confirmed that he had no direct knowledge of any “salt” or any other foreign substance being thrown onto his bushes. He testified that he simply assumed that Mr.

Mitchell would have been using salt to maintain this shoveled pathway during the winter. (The Claimant did not cross-examine the Defendant on this point. [ 13 ] As it pertains to the cherry tree, it was the Claimant’s evidence that as a result of Mr. Mitchell attempting to pull out the stump of the fallen branch, but in the end only straightening it back upright after being stopped by the Police presence on September 9 th , that he believed this disrupted the root system and, as a result, the remainder of the tree was dying.

His evidence confirmed that the remainder of the tree produced cherries in the summer of 2020 however believed that it was a lesser amount than previous years. He also testified that the branch/tree that was broken as result of the storm in the fall of 2019 was part of the overall cherry tree and not separate and distinct. Finally, he confirmed in his evidence that the cherry tree was old but he did not know how old and in his opinion appeared to be dying. It was the Claimant’s personal opinion, based on his own experience of having gardened for many years, that by Mr.

Mitchell disrupting the stump of the fallen tree it disrupted and thereby compromised the root system of the remaining part of the tree. He confirmed that he did not have any professional landscaper look at the cherry tree or bushes. He said he had tried but had been unable to secure someone from Highland Landscape to inspect the situation. DEFENDANT’S EVIDENCE [ 14 ] Mr. Mitchell testified. He stated he and his family had been residing at 75 Connaught Avenue for more than three decades.

He confirmed that the home of the Claimant situate at 73 Connaught Avenue was owned and occupied for many years by Daphne Bisson who in later years lived alone and often relied upon the Mitchells to assist her with her property maintenance and so forth. He confirmed they were close neighbors. Mr. Mitchell also exhibited a memory stick (Exhibit D-1) with numerous photos of their property, the newly constructed fence and the cherry tree at issue. Many of these photos show a beautiful landscaped property of the Mitchells with a variety of different flowers, trees and shrubs. Mr.

Mitchell stated that most of the gardening is carried out by his wife. [ 15 ] Mr. Mitchell testified and clarified that the cherry trees had been planted by Mr. MacIsaac, a former owner of the Claimant’s property many years ago. He stated that there had been a second one planted along where he understood the boundary line to have been located between his property and the Claimant’s property, however, in and around 2015 it developed a disease known as black knot. He testified that he and his wife had carried out different treatments in an effort to save it but could not.

He testified that this particular tree had been cut down in and around 2017 and removed from the property. The stump remained. He further testified that the “burning bushes” referenced by the Claimant were planted by he and his spouse back in 2015. He confirmed that they not only planted the ones along what they believed to be the boundary line of their lands and the Claimant’s but also planted several others (nine in total), several near the front of Mrs. Bisson’s property (now the Claimant’

s) at her request. Mr. Mitchell testified that in discussions with Mr. MacIsaac years ago it was understood the boundary line was along where the cherry trees and burning bushes were located. To his knowledge neither property owner had a formal survey, they simply agreed on where the boundary was located. He confirmed that he more recently had a formal survey for purposes of locating the fence he had installed between his property and the Claimant’s.

He stated that he did nothing to adversely affect the Claimant’s property, including the burning bushes or the remaining cherry tree situate on the Claimant’s property. It was his position that the cherry tree that had blown down came onto his side yard. He testified that the removal of any of the Claimant’s trees would not, in any way, enhance their view to the ocean because of the house and elevation, noting that you would have to go to the second floor of his home to see the ocean. [ 16 ] In cross-examination of Mr.

Mitchell by the Claimant there was a great deal of questions surrounding the use of the pathway Mr. Mitchell was shown shoveling in the Claimant’s video. He stated that he had kept this pathway open for many years to assist mail delivery at his home and Mrs. Bisson’s home as well as oil deliveries to the rear of his property. Some photos were referenced showing the location of his oil fill pipes and the distance from his existing paved driveway which was located on the opposite side of his home towards the rear.

He confirmed that in summer/fall of 2020, the burning bushes were, in his opinion, in full bloom and appeared healthy.

[ 17 ] Finally, in cross-examination of Mr. Mitchell there clearly was a great deal of confusion as to what he was doing back in September 2019 as shown in the Exhibit 3 photo where he is showed kneeling at or near the remaining cherry tree. He believed he had been dealing with the “old stump” of the first cherry tree that was required to be cut down several years ago. He initially testified that he did not remove the September 2019 fallen cherry tree branch. It appeared clear that Mr. Mitchell was confused from the questions and the many photos being referenced.

He corrected his position and testified that the tree had fallen toward his deck breaking some spindles. There was no evidence or photos of where this damage was but Mr. Mitchell then maintained that he removed the tree because he felt it was on his property (of note is the fact that the Claimant stated he had no issue with the Defendant removing the fallen tree). [ 18 ] There were some collateral questions on cross-examination surrounding a peace bond hearing held between the two parties several months earlier (November 2020). The Claimant had submitted a copy of the Peace Bond issued against Mr.

Mitchell but also confirmed that the Court had issued a similar one against him as well. The Claimant questioned Mr. Mitchell about a statement he set forth in his original court documents associated with the Peace Bond application and later recanted during the Peace Bond hearing. Finally, of note in several of the photos submitted by the Defendant, it showed several garbage bags located along the rear of the Claimant’s rear boundary line with little purpose other than being in direct sight from the Defendant’s property. In addition the Defendant, Mr.

Mitchell, submitted to the Court a video similar to one that the Claimant has tendered except that it contained the actual audio and statements made by the Claimant to the Defendant. Clearly the Claimant was angry and his statements were highly rude and disrespectful towards the Defendant. The Defendant stated the purpose of evidencing this type conduct by the Claimant was to support his earlier evidence of the fact that he believes the Claimant is doing everything in his power to goad Mr. Mitchell into doing or saying something that could lead him into trouble.

He referenced that the Claimant, over the past year since this property/neighbor dispute first arose, had come by his work place belittling him with derogatory remarks similar to those on the video/audio recording. REVIEW OF EVIDENCE AND DECISION [ 19 ] It is abundantly clear from the nature of this Claim and the evidence tendered that there has arisen, for reasons unknown to this Court, a serious and ongoing dislike between two neighbors. As confirmed by the evidence, this has already led to corresponding Peace Bonds issued in November 2020 against both parties to this action.

I have no doubt that the matters surrounding this Claim, at least in part, may have contributed to each party seeking a Peace Bond against the other. This Court has no idea when these applications may have first been filed relative to the date of filing this Claim.

I note this because after hearing the evidence, much of which I find to not be directly relevant to this Claim itself, was provided by the Claimant in what appeared to be an effort to attack the character of the Defendant and paint him and his wife as the neighborhood villains and that the Defendant’s actions are part of a conspiracy in suggesting the Defendant is attempting to kill all of the Claimant’s trees in an effort to obtain a view or have others be able to view his property. There is absolutely no evidence of this.

In fact I find the evidence suggests the exact opposite when the Court learns that the very bushes the Claimant alleges the Defendant was attempting to destroy were in fact bushes planted by the Defendant himself some 5 - 6 years ago. I further accept the evidence of the Defendant when he testified that he and his wife, in and around 2015-16, tried very hard to save one of the cherry trees that had become diseased and had to be taken down in 2017.

Common sense suggests one cannot reconcile that, on one hand, these trees that allegedly were the ones blocking the view were actual planted by the Defendant and attempted to be saved by the Defendant and at the same time the Claimant asks the Court to find that the motivation of the Defendant as it relates to this Claim was all about wanting to destroy these same trees/bushes to enhance his view plane.

I do appreciate fully that both parties have contributed to this continuing dispute between two neighbors, and again from the evidence neither is without fault. [ 20 ] As clearly set forth in the Claim, the Claimant requests compensation for the actions of his neighbor, Mr. Mitchell, relative to coming onto his property and attempting to remove a stump of a fallen cherry tree branch as well as throwing snow onto his burning bushes. The amount claimed as amended remains undisputed and is reflected in the quote for replacing these items as exhibited.

Therefore, the Court must first determine whether the Defendant did take any actions adverse to the Claimant’s property and if so, on the balance of probabilities, did such action cause any damage such as to warrant a reward from this Court. The two items at issue are the request for replacement of the remaining cherry tree and the five burning bushes which the Claimant states are destroyed from the actions of the Claimant. I will deal with each separately, referring to the evidence tendered.

Burning Bushes [ 21 ] The Claimant did not know how old these were nor the fact that the Defendant actually planted them back in 2015. The Claimant showed a video which explicitly showed the Defendant shoveling a path along the side of his home along the boundary between the Claimant’s and Defendant’s properties.

While the video is clear that the snow on that particular day was being predominantly thrown towards the Claimant’s rear boundary line, and I have little doubt being done to aggravate the situation, there is simply insufficient evidence for this Court to determine whether those actions adversely affected in any way the condition of the various burning bushes which were straddled along the rear boundary line of the Claimant’s property.

While the Claimant tendered a picture taken in the winter of 2020 (see Exhibit #9) which shows several of these bushes essentially bare, it was the winter time and one would expect most bushes of this nature to look like this. More telling is the Claimant’s own photos from the summer of 2020 where those burning bushes that can be seen all appear to be ordinary, green and healthy.

When questioned on this by the Court the Claimant confirmed that he largely based his concern and claim on the fact that these five bushes, all appearing to be the same size, were substantially smaller that a sixth bush towards the end of his property which he stated was the same type and believed was planted at the same time.

[ 22 ] His evidence begs the question as to whether the sixth bush was the unusual one and the other five, all appearing to be a similar size and healthy in summer 2020, are ordinary in their growth. There was no evidence before this Court as to what is supposed to be ordinary growth of a burning bush planted 5-6 years ago. Further, again as noted above, the video evidence is insufficient to make any determination, with a level of certainty, as to where the snow being shoveled was landing or more directly, whether it was landing on these bushes.

Further, there is also no evidence to assist this Court in determining whether snow, if thrown on top of burning bushes, can adversely affect their growth. The Claimant clearly was present on the day when this event took place and therefore had the opportunity to gather sufficient photo evidence to support his claim but none was presented. Therefore, the Court rejects the Claim for damage to the burning bushes and the corresponding replacement costs. Cherry Tree Replacement [ 23 ] From the evidence this Court is satisfied that the initial destruction of the cherry tree branch/tree at issue was caused by

an act of God and more directly the Dorian storm that occurred back in September 2019. I accept the Exhibits tendered by the Claimant as to the condition of this tree before (Exhibit A-1) and after (Exhibit A-2) the wind storm. The branch or tree itself that was knocked down appears to be relatively large and while there is no evidence of what was beneath the ground of this tree, based on the stump as tendered in Exhibits A-6/7/8, it appears to have been an independent tree situate approximately one to two feet from the cherry tree that remained standing after the storm.

What is clear from the photos (see Exhibit A-7 and A-8), the remaining stump at issue does not appear in any way to be growing from or actually connected to the adjacent surviving cherry tree, but for being in close proximity to one another. The principal basis of the Claimant’s evidence is that the tree remaining and the one which had blown down are essentially one and the same, connected by the same root system.

As a result, the Claimant’s position was that when the Defendant attempted to pull the root of the fallen tree and only managed to pull it upright in position as shown in the photo (Exhibit A-8), he surmises that such action likely compromised the root system of the remaining cherry tree and in turn has caused sufficient stress that it too appears to be dying.

From the photos, the remaining tree appears to be essentially the same both before and after the storm. [ 24 ] While this written decision may not reference everything that was said into evidence or refer to all of the various photos and videos exhibited by the parties, I have viewed them all. As was noted earlier, there was a great deal of evidence simply not directly relevant to the matters at issue before the Court.

After hearing and viewing all of the evidence surrounding the cherry tree issue, I am not satisfied that there is sufficient evidence to establish on balance that any action taken by the Defendant has caused any damage to the Claimant’s property as claimed. Clearly, this Court does not have any expertise in trees, bushes and the like and what factors could be adverse to such plants.

While I appreciate that the Claimant professed to have a “green thumb” having regard to his past gardening experience, there was absolutely no evidence beyond the Claimant’s “best guess” as to what may happen to his tree and bushes into the future. By his own evidence, clearly as the summer season closed out in 2020 the cherry tree and bushes were alive and well and there is no evidence to suggest otherwise.

It is worthy of note that given that a similar cherry tree had developed a disease several years ago together with the fact that one of the other cherry trees was blown down in 2019 and finally from the photos of the remaining cherry tree, these factors would appear to support that the remaining cherry tree may well be suffering. However, the Court is not satisfied and there is absolutely no evidence to establish on balance that the Defendant’s action caused any current damage or would otherwise contribute to any future damage that may be sustained by either the bushes or the tree.

Therefore, the Court dismisses any claim relative to the replacement of the cherry tree. [ 25 ] The Court hereby dismisses this Claim for the reasons stated. DATED at Sydney, Nova Scotia this 12 th day of February, 2021. A. ROBERT SAMPSON, Q.C. Adjudicator