Nancy Sykes v. Tom Sykes, 2014 SKPC 145

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 145 Date: July 23, 2014 File: 76/12 Location: Moose Jaw _____________________________________________________________________________ Between: Nancy Sykes and Tom Sykes - and - John Labuick Self-Represented For the Applicants (Defendants) Self-Represented For the Respondent (Plaintiff) _____________________________________________________________________________ JUDGMENT M.

GORDON , J _____________________________________________________________________________ [ 1 ] John Labuick sues Nancy and Tom Sykes in an amended claim that was issued the 30 th of August 2012. In turn each side brought an application to have the opposing parties’ counsel disqualified. Both applications were successful and therefore the parties are currently self-represented. A case management conference pursuant to The Small Claims Act was conducted and adjourned to be continued in front of Judge Kovatch on October 1, 2013.

At that time the Sykes indicated they were going to be making an application to have portions of the action of Mr. Labuick struck. In fact the Sykes did file a notice of motion dated September 18, 2013 asking for this relief. A hearing date was set for June 17, 2014 and this decision comes as a result of that hearing.

[ 2 ] I am satisfied that the Sykes’ application is based on the following grounds: 1) that the Labuick claim is frivolous or vexatious and that he has no legal right to bring the application; and 2) that the Labuick claim does not disclose a reasonable cause of action. [ 3 ] Mr. Labuick defends this application stating he has a legitimate cause of action. He states that part of his action is based on overhanging trees from the Sykes’ yard into his yard and as a result, he has suffered damages and should be compensated. [ 4 ] The case law is clear that both the above noted remedies should be used sparingly.

Litigants have the right for a proper claim to be heard. There is a difference in proof for each type of application. In determining whether a claim is frivolous or vexatious, the Court can consider the merits of the claim and the adequacy of the claim. In determining whether the claim discloses no reasonable cause of action, the Court only needs to consider adequacy. This is illustrated in Custom Cycle v. Honda Canada , 2007 SKQB 427 . [ 5 ] This claim of Mr. Labuick raises the issue of whether this is a case involving the law of private nuisance.

Private nuisance is generally described as unreasonable interference with an occupier’s use and enjoyment of their land (see St. Lawrence Cement Inc. v. Barrette , 2008 SCC 64 ). At paragraph 77, the Court stated: At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct (A. M. Linden and B. Feldthusen, Canadian Tort Law (8th ed. 2006), at p. 559; L. N. Klar, Tort Law (2nd ed. 1996), at p. 535). Nuisance is defined as unreasonable interference with the use of land (Linden and Feldthusen, at p. 559; Klar, at p. 535).

Whether the interference results from intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as a nuisance (Linden and Feldthusen, at p. 559). The interference must be intolerable to an ordinary person (p. 568). This is assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff’s use and the utility of the activity (p. 569).

The interference must be substantial, which means that compensation will not be awarded for trivial annoyances (Linden and Feldthusen, at p. 569; Klar, at p. 536). [ 6 ] The tort of nuisance has been considered by various courts in the context of trees. In Pook v. Rowswell , 2005 SKPC 110 , Judge Meekma held that an overhanging tree can constitute private nuisance but any liability would require causation in damages (paras. 14 to 16). In Pook , the plaintiff was not successful in proving causation because there was no evidence that the tree was ever in contact with the shed in a damaging way. [ 7 ] In Wallace v.

Joughin , 2014 BCPC 2 , one of the plaintiff’s claims was for nuisance in that the defendant’s trees grew in the plaintiff’s air space and that debris from those trees landed in the plaintiff’s yard and that the trees blocked the natural light. [ 8 ] The plaintiff testified that branches up to three feet long had broken off the tree and damaged her house during a wind storm and that fir needles, cones and small branches resulted in extra maintenance to the yard and reduced the life span of various items such as an art studio roof, a wire fence and gutters.

The defendant argued that the trees “are part of the natural characteristic” of the neighbourhood predating the plaintiff’s purchase of the property and that “having regard for the requisite elements and considerations to be applied ... the claimant has not been able to demonstrate that the fir trees amount to a nuisance”. It is noted there was a significant amount of evidence from expert reports relating to fir tree growth patterns and the effect it can have on one’s health.

The Court held at paragraphs 240 and 241: [240] Objectively, one who chooses to live in a semi-rural environment where there are a significant number of trees must expect to have both the benefits and advantages of those trees and some of the minor inconveniences that naturally accompany them. Those minor inconveniences will include blowing fallen maple leaves in the fall, blossoming Japanese cherry trees in the spring and the year round rain of needles from the coniferous trees, many of which may end up in the house gutters.

It will even include disruption of a personal goal to achieve a perfect lawn because of its natural incompatibility with the surrounding trees.

[241] Taking into account all of the Sutherland elements and considerations as they relate to this case and the Claimant’s profferedcomplaints, my conclusion is that the Claimant has failed to establish what can be regarded as a nuisance, that is “an inconveniencematerially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habitsof living, but according to plain and sober and simple notions.” [9] In another case called Yates v.

Fedirchuk, 2011 ONSC 5549, the plaintiff claimed damages in nuisance for root damagefrom the neighbour’s tree to her pool. Ordering that the trees be felled was found to be “contrary to the norms that I believe generally govern neighbourhood relations in Ottawa in the 21st century” the judge held. The Court also quoted the Supreme Court of Canada caseof 114957 Canada Ltee. v.

Hudson, 2001 SCC 40 , [2001] 2 S.C.R. 241 at paragraph 1, that held environmental protection is afundamental value in Canadian society. [10] As a result of reviewing the principles enunciated in these cases, I conclude that nuisance claims relating to trees result indamages where the effects are outside whatever is reasonably expected based on community standards. As a rule damages are awardedwhere roots damage property or where tree branches harm property either by falling onto it, breaking it or hanging over it and causingdamage.

Damages are not awarded for trivial or minor interference which is in keeping with community expectations unless specialcircumstances justify it. For example, in Olah v. Cadillac Fairview Corp., [1990] S.J. No. 344, the plaintiff sued for interference withthe use and enjoyment of their home because dust and dirt blew onto their yard. This would not normally be a nuisance but in thisparticular case it was, as it was substantially larger than normal being from a shopping mall with a large block of land between theplaintiff’s home and the mall. [11] Mr.

Labuick’s claim as stated in his amended claim involves two areas of concern: 1) seed pods, fuzz and other debris fall from the trees in significant amounts during the summer months from the defendant’s trees; and 2) branches from the defendant’s trees grow over the property line and intrude into the Labuick space. [12] Mr.

Labuick says as a result of these two problems, he has had to do more cleaning and maintenance than would otherwise berequired and that debris from large overhanging trees has caused the filtration system in his pool to be clogged lowering its life span andincreasing service requirements and he further goes on to say that debris from the trees generally have damaged his three air conditioningunits which also required increased service and maintenance. [13] In the June 17, 2014 hearing of this application, Mr.

Labuick also alleged that one of the air conditioners had burnt outbecause it was plugged with fuzz from the defendant’s trees. [14] The Sykes argued that the pleadings should be struck. Their main argument it appears to be is that the claim is frivolous orvexatious although in paragraph 3 of their dispute note they ask that the plaintiff’s claim be struck as there is no reasonable likelihood ofsuccess under the tort of nuisance. There is also other references in their documentation such as “unwarranted court claim” and “damageto anything is hardly an issue”.

Therefore given the fact that the Sykes are the applicants in this application and are self-representedlitigants, I am going to consider both requests. [15] A

summary of the Sykes’ argument is as follows:

(1) The community expects that debris from trees will blow onto other yards. The Sykes claim the trees in question are well-establishedand were there when they purchased the house in 1988.

(2) The community plan for Moose Jaw supports urban trees and that their particular neighbourhood is generally in favour of them.

(3) It is known and accepted that debris from trees will be picked up by the wind.

(4) There are many other trees within the residential area so it is impossible to demonstrate that the debris that Mr. Labuick complainsabout is from the Sykes’ trees only.

(5) There could be other reasons for the damage to the pool filter such as grass clippings, overuse, shedding dogs and the trees in the

Labuicks’ yard.

(6) Any damage to the air conditioning unit is overstated and could equally be due to overuse. [ 16 ] The Sykes say at this time there is no overhanging trees onto the Labuick property. The Sykes say there was a branch hanging approximately 30 feet up but it was trimmed back in May of this year. [ 17 ] The law is clear that any overhanging trees or branches could constitute a private nuisance.

Whether damages can be claimed or would be awarded for this is a question to be proven and decided at trial. [ 18 ] I am prepared to strike the portion of the Labuick claim with respect to damages from debris falling from the Sykes’ property onto the Labuick property. Even if Mr. Labuick could prove that the debris in his yard is solely from the Sykes’ trees, this would not be sufficient. I am prepared to take judicial notice of the fact that communities such as Moose Jaw have trees, wind blows and blows all sorts of debris into other people’s yards. This is something people are expected to live with.

It is part of urban life. There is nothing in the pleadings to suggest that the burden on Mr. Labuick is greater than expected for the community he lives in. The issue is there is no remedy even if I were to accept that Mr. Labuick proved the fluff or debris in his pool was solely from the Sykes’ trees. [ 19 ] I am also prepared to strike this aspect of the claim on the grounds it is frivolous and vexatious when considering the merits in the context of community standards. [ 20 ] Mr. Labuick has also asked for injunctive relief.

Under s. 3 of The Small Claims Act , the jurisdiction of the Court is specifically set out as follows: 3(1) Subject to subsection (7), this Act applies, whether or not the Crown is a party to the action, to any claim or counterclaim for: (

a) debt or damages; (

b) recovery of personal property; (

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

d) relief from opposing claims to personal property.

(2) Subject to subsections (3), (4) and (7) but notwithstanding clause 2(

o) of The Saskatchewan Insurance Act , actions by or against an insurer may be brought pursuant to this Act in any situation where there is a disagreement between the insured and the insurer.

(3) If the contract of insurance or The Saskatchewan Insurance Act requires an appraisal before there can be any recovery, the procedures for an appraisal set out in the contract or The Saskatchewan Insurance Act , including, where applicable, submission to an umpire, must be completed before an action may be brought.

(4) If the contract of insurance or The Saskatchewan Insurance Act allows but does not require an appraisal, an action may be brought whether or not the procedures for an appraisal set out in the contract or The Saskatchewan Insurance Act have been completed.

(5) For the purposes of subsection (3), “requires an appraisal” includes a situation in which a contract of insurance or The Saskatchewan Insurance Act provides an insured or an insurer with the right to require an appraisal and the insured or insurer has exercised that right.

(6) Subject to subsection (7) but notwithstanding

section 61 of The Automobile Accident Insurance Act , an action to recover benefits or insurance money may be brought pursuant to this Act .

(7) The maximum amount that may be claimed or the maximum value of the personal property or services with respect to which relief may be sought is the amount prescribed as the monetary limit.

(8) In determining whether a claim or counterclaim exceeds the monetary limit, the amount or value is to be calculated without taking into consideration interest or costs.

(9) This Act does not apply to a claim for libel, slander, malicious arrest, malicious prosecution or false imprisonment. [ 21 ] Section 9(1) of The Queen ’s Bench Act R.S.S. 1998, c.S-7 states:

(1) The court has original jurisdiction throughout Saskatchewan, with full power and authority to consider, hear, try and determine actions and matters. [ 22 ]

Section 65 of The Queen ’s Bench Act refers to the granting of injunctive relief. In Northern Light Arabians v. Sapergia , 2011 SKPC 151 , the Court held that an injunction ordering that a fence be built was “beyond the authority of this Court” (para. 39). [ 23 ] Therefore I am prepared to strike out the request that an injunction be issued ordering the trees be removed. This is clearly a remedy this Court has no jurisdiction to grant. [ 24 ] In

summary, the Labuick amended claim can proceed to trial which will be limited to the claim for damages from any overhanging trees from the Sykes’ property onto the Labuick property and whether these trees invade the Labuick air space. Whether there are branches overhanging into Labuick’s yard is a triable issue and if Labuick is successful, monetary damages can be awarded. [ 25 ] Therefore the matter will be adjourned to resume the case management conference in front of Judge Kovatch on October 2, 2014 at 10:30 a.m. Costs shall remain for the trial judge. M. Gordon, J