Name Ann-Noreen Norton Claimant Address c/o R. Michael MacKenzie Atlantica Law Group 99 Water Street P.O. Box 280 Windsor , NS B0N 2T0 Phone (902) 798-5734 Name Brightwood Golf & Country Club Ltd. Defendant Address c/o Jean McKenna Ritch Durnford Suite 1200 1809 Barrington Street Halifax , NS B3J 3K8 Phone (902) 428-1459 R. Michael MacKenzie appeared for the Claimant. Jean McKenna appeared for the Defendant. DECISION The Claimant, Ann-Noreen Norton, resides at 47 This, 2014 NSSM 75

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Norton v. Brightwood Golf & Country Club Ltd., 2014 NSSM 75 Claim No: SCCH 387931 BETWEEN: Name Ann-Noreen Norton Claimant Address c/o R. Michael MacKenzie Atlantica Law Group 99 Water Street P.O. Box 280 Windsor , NS B0N 2T0 Phone (902) 798-5734 Name Brightwood Golf & Country Club Ltd. Defendant Address c/o Jean McKenna Ritch Durnford Suite 1200 1809 Barrington Street Halifax , NS B3J 3K8 Phone (902) 428-1459 R. Michael MacKenzie appeared for the Claimant. Jean McKenna appeared for the Defendant.

DECISION The Claimant, Ann-Noreen Norton, resides at 47 Thistle Street in Dartmouth, Nova Scotia. The area is one of the older sections of what was formerly the City of Dartmouth. The property is located in a predominantly residential area. Most significantly, at the rear of the property is the Brightwood Golf and Country Club, owned by the corporate Defendant of virtually the same name. Ms. Norton took title to the property in August 2010. Since that time, she claims to have had golf balls entering her yard, which have caused damage to her yard ornaments and injured her cat.

This is a claim in nuisance for damages incurred, namely for veterinary bills for treatment of the cat. The Defendant claims there was no nuisance. Initially, the claim was in negligence but both counsel conceded that the matter should only be in nuisance. The hearing took place over the course of several months. This decision has been filed beyond the sixty days required by the Small Claims Court Act . The particular time line has been held to be directory rather than mandatory, as noted most recently by the Supreme Court of Nova Scotia in Towle v. Samad , 2013 NSSC 260 .

Nevertheless, the parties and their counsel have doubtlessly been anticipating this decision. Their patience has been greatly appreciated.

The evidence in this matter has been quite detailed and well presented by two experienced members of the Nova Scotia Bar. In this decision, I have read and/or reviewed each exhibit and considered all of the evidence. While there may be certain exhibits not specifically referenced, both parties can be assured that I have given each exhibit and point raised in viva voce evidence due consideration. The Issues Is the Defendant, Brightwood Golf & Country Club Ltd. (“Brightwood”) liable in nuisance to the Claimant, Ann-Noreen Norton? If so, what are the damages that have been incurred?

The Evidence Site Visit During the course of this proceeding, a site visit was conducted from both sides of the fence. We began with a walk around the Brightwood golf course, at the #2 tee and the fairway and green for hole #1. This was preceded by a visit to Ms. Norton's property at 47 Thistle Street. While this visit took place before all of the witnesses were heard, I present this at the outset of the evidence to put the testimony in context.

The #2 Tee at Brightwood, like other tees, has two locations for golfers to tee off, the main tee (sometimes known as the "men's tee"), and the forward tee (or “ladies tee”). The fairway for that particular hole runs perpendicular to the properties along the north side of Thistle Street. There is fencing between the properties and the golf course. The fencing is either 10 feet or 15 feet in height depending upon location. The green runs in a downward slope, as one moves in an easterly direction until it slopes upward toward the green. There are four or five residences along the fairway for the hole.

There are large trees along most of the property. In viewing the properties abutting the golf course, the Norton property has either fewer trees, low branches or shrubs. For whatever reason, Ms. Norton’s yard is more open compared to the other properties. The #1 Green is located to the left of the forward tee for the #2 tee. The tee off point for that hole is up a large hill to the north of the fence. Essentially one tees off in the direction of the fence coming down the hill, however, the hole is short of that point and off to the right. It is a distance of approximately 298 yards from the tee to the hole.

There are sand traps on either side of the green not far from the hole. To the left of the #1 fairway, and correspondingly to the left side of the #2 fairway is a small ledge. That ledge is raised slightly higher than the greens and is located close to “the woods”, a mature and substantial green belt located on the course. Ms. Norton testified that golfers hit balls from there which sometimes travel over the fence. The Norton property faces Thistle Street on its south side and the golf course on its north side. Essentially, the golf course is plainly visible from the backyard.

From the fence in her backyard, it is easy to see uphill along the fairway for the first hole and when looking left (or westerly) is the tee-box for the second hole. On her deck, Ms. Norton showed where one ball came over the back corner point and hit the deck. She also showed where an ornamental mirror and the gargoyle were located when they broke. The Claimant’s Evidence Roy Andrew Arsenault Roy Arsenault is a labourer and landscaper hired by Ms. Norton. He testified that he built a patio rock deck in Ms. Norton's backyard.

He excavated the area where the deck was to be constructed and dug up several golf balls. The deck required him to be on the property for roughly 2 to 3 days per week. During that time he would hear the sounds of golf balls being struck and landing. Occasionally, they would hit the trees in the backyard and bounce off the fence. Some of the balls that he found were dirty while others were white in color. He did not see many as often in 2012 as he was inside painting. He testified that there were storm windows kept on the side deck.

He testified to seeing Benny the cat at the house, mostly during the spring and summer of 2011. He testified that Ms. Norton would take her cat to the

veterinarian every week when he was there. Robyn Pennell Robyn Pennell lives next door to Ms. Norton at 45 Thistle Street. Ms. Pennell is a schoolteacher in the Halifax Regional School system. Ms. Pennell described herself as Ms. Norton's only "direct neighbour." She has been renting her house since June, 2009. Her house is located closest to the second tee. She testified that in her backyard, she gets approximately one or two balls hitting her oak tree or elsewhere in her backyard every weekday, and approximately three or four more on the weekends. She spends time at Ms.

Norton's house and testified that she seems to get more balls than Ms. Pennell does. She was in Ms. Norton's backyard when a golf ball hit the Norton house. Ms. Pennell owns two large, somewhat excitable dogs and she has to be vigilant in collecting golf balls to prevent her dogs from chewing on them. She testified that golf balls do hit Ms. Norton's deck, but only occasionally. She describes her own house as further back from the golf course than Ms. Norton’s. When she is outside for an hour or two, a ball may strike the house -more so on Sunday. Under cross examination by Ms.

McKenna, she testified that she had lived previously at 43 Thistle Street and experienced almost no balls entering her yard. She testified to hearing Ms. Norton, shouting loudly on occasion that her yard “is not a golf course”, but she did not see the golf ball travel nor its trajectory. She did not notice any monitors watching the property in the golf course. She does spend time outside with her dogs and in her garden with her hostas. She testified that her dogs used to bark at golfers when she first moved there.

The barking decreased as they became accustomed to the golf course and golfers seemed less concerned about the dogs. She has no difficulty with the golf course or any balls entering the yard as the golf balls tend to hit her trees. She rather likes the green space. She testified that she owns two cats but they remain indoors. Marion Fortune-Stone Marion Fortune-Stone is a lawyer currently assigned to the Public Prosecution Service of Nova Scotia. She is the Claimant's sister. As such, she has had numerous occasions to visit Ms. Norton’s house.

She described an incident that occurred on Father's Day 2012, sometime between 2:30 and 3:00 pm. She was carrying bedding in a laundry basket to deliver to the house. Ms. Norton was not at home, so she left a note for her. When she returned from leaving a note, there was a golf ball on the deck that had not been there when she arrived. A second incident occurred in July 2012 when she was meeting with Ms. Norton and Mr. Hartlen to discuss the matter. While they were standing in her backyard, they heard a ball hit off the tee, which hit other trees in the backyard.

Shortly thereafter, another golf ball came over the fence. She had seen them several times since, including the morning of August 6, 2013. At one point she counted approximately 11 golf balls in the property. Under cross examination, she acknowledged that she had not seen any balls land on the property. She described the cat, Benny, as both an indoor and outdoor cat. She described her sister as very fond and protective of both of her cats. Ms. Fortune-Stone had never seen Benny on the golf course. She described her sister as one who stands up when she feels something is inappropriate and that both Ms.

Fortune-Stone and Ms. Norton were raised to do so. Theresa Zukauskas Theresa Zukauskas is a retired teacher, who joined Ms. Norton in her meetings with the representatives from Brightwood. In attendance were Ms. Zukauskas, Ms. Norton, Jim Ogilvie and Anji Orwick. Ms. Zukauskas took notes of the meeting. A copy of the notes was tendered into evidence. The meeting was aimed at coming up with a solution to the problem, or determining if indeed there is a problem.

She describes one ball she observed coming over the fence and noted on one occasion a ball had landed at the gully by the fence. She also described having seen a golf ball come over the fence that rolled between the two houses. Rick Hartlen Rick Hartlen is a Senior Crown Attorney with the Public Prosecution Service in Nova Scotia. He had been asked by Marion Fortune- Stone to assist her in June 2012 as she had been working with her sister in relation to this matter. He identified the driveway and the deck on the property and testified to seeing a ball on the patio deck in the approach to the fence.

He saw the ball land over the fence. He identified the picture in exhibit number five. He testified to meeting directly with Ms. Fortune-Stone and Ms. Norton. He confirmed that the ball was located on one of the green steps in the middle of the deck. Dr. Jennifer Bishop Dr. Jennifer Bishop is a veterinarian in Dartmouth. Dr. Bishop was qualified as an expert in veterinary medicine with the approval of both counsel. She has been familiar with Benny the cat since Ms. Norton moved to Dartmouth. She first met Benny when he was brought in for a follow-up when he was purportedly struck by a golf ball.

The focus was on pain in his tail and his seemingly agitated behavior. Then he was noted as being slightly overweight, having calculus on his back teeth, and most notably, a fear of his tail when seeing it. She diagnosed no obvious problems with the tail but asked Ms. Norton to bring him back if it is worse. She returned with Benny within two weeks. Dr. Bishop palpated the area more discreetly and noted swelling and the tail was crooked. She prescribed escalated physical therapy, along with medication for anxiety and pain medication. The course of treatment occurred between 2010-2012.

After late 2012, then he was observed to be better after treatment. Dr. Bishop diagnosed hyperaesthesia syndrome, which is characterized by tail chasing, vocalization, sudden jumping trauma and startling. There were also seizures present which she attributed to the incident as there was no previous history of seizures. She noted a separation at the back and tail. Under cross examination, Dr. Bishop acknowledged that it is customary for a veterinarian to depend upon the owner to tell them that what has happened. She would not have seen a change in behavior from the cat being struck by the golf ball. Dr.

Bishop diagnosed Benny on October 12, 2010 with displacement behavior which could have been the result of several things, a new environment, or frightening experience. She confirmed that the move from Coburg Road to Dartmouth could possibly bring about displacement behavior. She knew Benny's history as having been "fine” before the alleged golf ball incident. Consequently, she attributed the problems to the golf balls. Other startling events could also cause displacement behavior such as observing a cat inside. She was not originally aware that there were two large dogs next door.

She initially prescribed Fluoxentine but eventually settled on gavopentin. The latter drug appeared to have greater success for Benny than the former. Interestingly, Dr. Bishop resides in Dartmouth and lives close to the golf course. She is one of several signatories to a petition directed to the Defendant to save the golf course. Dr. Bishop attempted several techniques to resolve the problem. She changed the treatment in order to manage the symptoms.

There has been no improvement of the cause of stress but she eventually found something to interrupt the pain sensations which caused Benny to focus on something else. Ann-Noreen Norton

The Claimant, Ann-Noreen Norton, resides at 47 Thistle Street in Dartmouth, Nova Scotia. She put an offer on the property on May 26th 2010 which was accepted. She took title in August of that year. At the time of the purchase, she was aware that the property was adjacent to the Brightwood Golf Course. She spoke with the previous owner of 47 Thistle Street and the realtor who advised that there were no problems with golf balls coming into the yard. Indeed, she was advised there had been only two golf balls over the course of 20 years.

The first morning she was in the property, she heard a bang on the side of the house. She looked outside and saw a golf ball on her deck. In an e-mail to the golf course, she described her time since as "a constant assault from golf balls." She described the property as follows. The tee-off point for the second hole is adjacent to 43 Thistle Street The neighboring property, 45 Thistle Street, currently occupied by Robyn Pennell, is slightly downhill. Ms. Norton's property drops down further. At the time she purchased the property, the fence along the backyard was 15 feet in height.

Brightwood increased the height of the fence by 5 feet purportedly to discourage balls from the first hole from coming into her backyard. She describes the tee box located on the west side of her lot (the side closest to Ms. Pennell's house) as approximately 20 to 25 feet “as the crow flies" from her backyard. She says it is troublesome for certain left-handed golfers. She described the frequency of balls coming over her fence. She indicated that balls come over the fence but not on a daily basis. The longest stretch between them is approximately every two days.

Typically, this means anywhere from one to two balls per day. She has sustained damage to personal items such as a mirror and a gargoyle ornament. She has had balls hit her house, shed, garage and car. There have been limbs broken off some of her plants in her yard. As a result of some of the meetings with Brightwood, the fence was raised 5 feet. She described her meetings with the representatives from Brightwood as cordial. She described an incident where shortly after she had moved to her house, in late 2010, she took Benny outside to her chaise lounge.

She saw a golf ball hit her cat, and then fall onto the deck. She did not see from which direction. She described the cat as being in distress and he made a distressed sound. She moved him into the living room. Her cat went into a tent she has for her pets and stopped all forms of communication. Benny did not use the litter box. She identified in the exhibits a number of photographs of golf balls all around her yard. She identified the tropical plant which had been hit by a ball. She described Benny as now functioning and having progressed well. She testified that Benny and Ms.

Pennell's dogs have an uneasy relationship, which I took to mean typical of neighbouring cats and dogs. They are not afraid of each other. She indicated that Mr. Ogilvie and several other Brightwood employees have been by to meet with her on occasion. Under cross examination by Ms. McKenna, Ms. Norton confirmed that the closing took place in late August 2010. She did not have any tenants or borders at that time. She did have tenants from time to time. Ms. McKenna attempted to adduce evidence concerning previous court actions by Ms. Norton.

There were in fact two before the Supreme Court of Nova Scotia, when she resided at 6199 Coburg Road. I am not satisfied that the matters are in any way related to this one. Accordingly, I disallow any of that evidence. I believe Ms. McKenna's intent was to show Ms. Norton as a litigious individual but I did not form that impression. Once they moved to Dartmouth, Ms. Norton took her cats to see Dr. Bishop. She described this as having taken place in late September 2010 however her first visit was acknowledged as October 12, 2010. Ms. Norton testified that as incorrect. She confirmed Dr. Bishop's notes that Ms.

Norton stated Benny was behaving oddly with his tail. There was no note as to the cat being unable to move. She then introduced exhibit number 10, an e-mail from Ms. Norton to Mr. Ogilvie dated September 17, 2010. In that e-mail, she expressed concern regarding golf balls. She acknowledged that the cat was hit between then and late October. There had been several interactions between Ms. Norton and the golf club. Further she had her lawyers wrote them as well. She did not mention that the cat was traumatized until later. Ms.

McKenna reviewed several of the dates with her e-mail and confirmed that golf balls were not seen every day. She also acknowledged that the gargoyle and the cat were not mentioned until 2011. She acknowledged she did not do much to protect the property other than rearranging the furniture.

Evidence of the Defendant Suzanne Hood Suzanne Hood is a Justice of the Supreme Court of Nova Scotia. She has been a member of Brightwood for 10 years. She estimates that she played approximately 60 rounds of golf in 2013. She has played in groups of three or four persons and has observed some hits that have gone, "badly off the forward tee." She reviewed the photographs tendered into evidence and described several of the shots that she has seen taken. She has not seen any shots clear the fence at the Norton or other properties. She testified to having seen large dogs at Ms.

Pennell's property approximately two years ago including one large Samoyed. She described the dogs as playful and friendly. Under cross examination, she indicated she has a handicap of either 28 or 29. Her co-players have run the spectrum. Some play better or worse than her. There are some that cannot reach the golf path from the tee which is only several feet from the fence. She recalls that they increased the height of the fence by the number two tee. Barbara Winges Barbara Winges has been a member of Brightwood for 52 years. She plays roughly five times per week for a total of 100 to 120 rounds per year.

She has an 18 handicap. She plays frequently with junior and intermediate women. A few senior men also play with them. She testified that, in her opinion, it is nearly impossible to get the ball into the Norton property from the #1 tee. The play for the first hole goes to the left away from the Norton property as one comes downhill. It is a very long-distance from the tee to the hole to hit it at that height. Furthermore, it is unlikely for a ball to clear the fence at the number two tee unless one really hits the ball poorly.

Most balls will slice further down towards the higher numbered properties on Thistle Street. She has never seen the ball clear the fence at the Norton property. Jeannette MacDonald Hazel Jeanette MacDonald is a retired teacher who served on the ladies executive at Brightwood. She has been a member for 22 years and tries to play approximately 3 times per week. She described the golf season as occurring between May and October. She plays with ladies more so than men and usually intermediate or regular players. She plays with golfers of all skill levels, whose scores average between 95 and 110.

There are a few whose averages are 120 or higher. She observed one ball hit over Ms. Norton's fence by a relatively new golfer. It came off the forward tee and landed roughly 12 inches into her yard. She has not done so herself, and describes the distance as a fairly long shot. She testified seeing Ms. Pennell's dogs in the yard at 45 Thistle but did not see Ms. Pennell doing her gardening. Under cross examination, she testified that Brightwood has approximately 1000 members. She knows most of the women golfers, 150 of them. The majority of the membership are men, most of whom she does not know.

There would also be "green fee players", i.e. non- members paying to play, on the course from time to time. Karen Mader Karen Mader has been retired for four years as a director of claims for Intact Insurance. She has been a member of Brightwood for 14 years. She plays approximately 50 rounds of golf per year, at Brightwood, and presumably elsewhere as she testified to playing in the winter as well. She usually plays golf in groups of three or four. She has played many times with junior golfers. She has a handicap of 24.

She has taken a tee shot from the forward tees on both the first and second holes and described the view to Ms. Norton's property as clear. It is possible to see Ms. Norton's backyard anywhere on the first or second hole. She has not seen anybody in the neighbour’s yard, but she has spoken to Ms. Pennell's dogs.

Georgina MacDonald Georgina MacDonald is a retired principal of the Nova Scotia Community College-Halifax Campus. She plays approximately 45 to 50 rounds per year at Brightwood. She has a handicap of 22. She plays in groups of two, three or four. The groups are often mixed between men and women, and with beginners and more senior players. She has accompanied junior players on the course to keep score and provide guidance. At no point during her membership has she ever seen a golf ball go in to Ms. Norton's yard. She indicated that it would take a scoop shot to hit the ball on the green from the rocky ledge.

It would not make it to the back of the house. Under cross examination from Mr. MacKenzie, she acknowledged that it would take a flop shot to clear the sand traps. She has been a member of the executive 2008 to 2011. As a member of the executive, she would look at claims for damage caused by errant golf balls. She has seen the registered letter from Mr. Ogilvie to Ms. Norton tendered into evidence. As the registrar of the ladies league, she knew most if not all of the women that were members of Brightwood but not the men. In redirect evidence by Ms.

McKenna, she acknowledged there were errant balls from the 18th hole and along the fifth hole as well. In those cases the green was changed and/or additional fencing was added with nets. Donna Spencer Donna Spencer had been retired approximately two months as of the date of the hearing. She had been a member of Brightwood for 11 years. She has a handicap of 21 or 22 and typically shoots a 94 or 95. She estimates that she plays between 50 to 60 rounds of golf per year in groups of three to four. Sometimes she plays with beginning players while at other times, her group consists of more experienced women golfers.

She has not seen balls that go into either the Norton or Pennell properties. She has seen balls strike the fence, but they tend to be very low. She has seen balls clear the nets on the 5 th , 16 th and 18th. She has not observed Ms. Norton or Ms. Pennell in their respective yards. She has seen the dogs numerous times. In her time playing golf at Brightwood, she has anybody play a ball off the ledge described by the various witnesses. Peter Naud Peter Naud joined Brightwood in 1974. He averages approximately 35 to 50 rounds of golf per year. He is obviously a very skilled player, as he has a handicap of 7.

He has served in various positions with the executive of Brightwood. He has been a member of the Board of Directors and specifically served as the director of finance. He recalls receiving a registered letter from Ms. Norton concerning 47 Thistle Street He acknowledges that there were problems with the 18th hole where additional fencing was required. He described the various membership categories at Brightwood. There were 455 playing members and 108 couples for a total of 671 members.

In addition, there are social members who play six round per year unless they purchase a membership which allows him to play a maximum of eight. In total they estimate roughly 1000 members. Mr. Naud testified that he was part of a subcommittee considering the possible sale of the Brightwood property to a developer. While the executive seemed in agreement to it, the matter was vetoed by Halifax Regional Municipal Council. He has not seen a ball clear the fence on the Thistle Street side of the course. He has observed balls bouncing along the cart path.

He has seen balls leave near the 15 th hole along Forest Road, the 16th and 18 th holes along Woodland Avenue. Those particular holes have large netting atop larger fences. In the winter, Brightwood is used for tobogganing. It is also a popular spot for cross-country skiing.

Under cross examination by Mr. McKenzie, he indicated that complaints are brought forward to the board by the general manager, Mr. Ogilvie. He was involved with the subcommittee at the time of the proposed sale. He has served for four years on the board of directors. He is familiar with the Brightwood website and he acknowledged that one of the possible reasons for the sale of Brightwood was the concern for increased safety and potential liability issues arising from golf balls straying off course. He indicated that was not the main reason for the sale.

He does not know if any of the safety or liability reasons concerned Thistle Street. In questioning from the court, he confirmed that three or four small tournaments of some 15 to 25 players are held at each year at Brightwood. In order to play in those tournaments, there is no requirement for membership or any ability required by the course. Ronald Fagan Ronald Fagan was the former owner of 47 Thistle Street. He sold the property to Ms. Norton having conveyed it to her on August 18, 2010. His wife took care of any discussions concerning the sale of the property and answered any questions. Mrs.

Fagan did not give evidence. He testified that in discussions between himself, his realtor and Ms. Norton, Ms. Norton asked if they had any windows broken from the golf balls. He acknowledged there were two balls that broke windows the entire time he lived in the house. Both breakages occurred before he had built an extension. One of them took place at 11 pm. His grandfather, William Clarke, built the home in 1937. Mr. Clarke then devised the property to Mr. Fagan when Mr. Clarke passed away in 1989. He recalls the third panel being added to the fence to make it higher. This followed Mr.

Fagan asking Brightwood management to make it higher as his son was just born, so they added a third panel. This was necessary as Mr. Fagan, his wife and son all liked to spend time in the backyard. He did not recall there being many balls being hit in his yard, approximately 2 to 3 balls per year. There were none in the yard after the extension was increased. Their son was eight years of age at the time. He reviewed a number of photographs contained in Exhibit 14. The photographs show Mr. Fagan and his son playing outside in the backyard. He did not have any major concerns with the risk of golf balls.

He had never seen balls clear the fence although he had heard them in the grass nearest the fence. He had heard them hit the trees and the waterslide in his yard. He said most balls went under their neighbour’s tree, in Robyn Pennell's yard. A large tree and flagpole were destroyed by Hurricane Juan in 2003. When asked by Ms. McKenna if he ever felt at risk any golf balls he answered flatly no. He described the golf course as being used year round. As a child, he tobogganed there constantly. Or he would go skating or play hockey there. He would also go there to watch the Natal Day fireworks.

Under cross examination by Mr. McKenzie, he acknowledged that his wife had expressed concern about golf balls when their son was born. Personally, he had none. He does not ever recall speaking with Jim Ogilvie about the presence of golf balls in his yard. He sold the property to Ms. Norton because his mother-in-law was moving in the property, and it was too large for just the three of them. He acknowledged that a golf ball hit and broke a window on the second floor. This occurred prior to the construction of the extension. Thus, the house was further back when the ball struck.

He did not recall ever having a discussion with his neighbor George about golf balls or selling the house. Jim Ogilvie James Henry (Jim) Ogilvie is the general manager of Brightwood. He oversees all of the operations at the course including golf, food and beverages. He served as a golf pro and still plays golf. At the time of the hearing, he had been the general manager for seven seasons and 14 years as a pro; prior to that, he spent five years as an associate pro. He has taught all levels of golfer and played many levels of golf.

During his tenure as the general manager, he has not seen a ball go over the fence from #2 Tee. Likewise, he has not seen the ball

leave the fairway and over the Thistle Street fence. Brightwood has been in existence for approximately 100 years. It is a Donald Ross designed golf course. Mr. Ogilvie described the typical golfing season at Brightwood as running from April 17 to November 15. At that point, the golf course is open to the community for snowshoeing sledding, cross-country skiing and walking dogs. In the off-season, anyone can use the course for this purpose. During the golfing season, it is used by the membership.

With respect to 47 Thistle Street, he described when he observed the Brightwood side of the fence, he did not receive any complaints from Mr. Fagan, other than some noise on the course. This occurred shortly after his son was born. The matter was resolved. He was not aware of any episode involving a broken window. He acknowledged being requested by Mr. Fagan to raise the fence and doing so. He recalls observing Mr. Fagan in his yard and Robyn Pennell’s dogs in her yard. He does not recall any reference to anyone being hit by a ball. There was one incident involving Ms. Pennell a window being broken at Ms.

Pennell’s house, where Brightwood paid to have that repaired. It is the policy of Brightwood to repair any property damage on a "without prejudice” basis. They do not admit liability. Ms. Norton moved into the property in August 2010. The first communication from Ms. Norton to the golf course occurred on October 3 describing golf balls entering the property. There is reference to a ball coming within inches of the house and another within minutes afterward hitting the tree. She described to him being narrowly missed by three golf balls in 2010. On May 31, 2011, she observed two golf balls several days apart.

The source of the balls was described as coming from the men's tee on the second hole and off the ledge on the first hole. Brightwood was understandably concerned. Mr. Ogilvie testified that he met with Ms. Norton at the golf club on June 29 to address her concerns. They discussed the problem and the angle of the balls. Mr. Ogilvie was of the view that only a left-handed golfer would have an issue in possibly hooking a ball on the left side of the tee. In his opinion, it was a very minute chance that it would occur.

Prior to that, he received quite a number of letters and e-mails from her concerning the frequency of golf balls hitting her property. In a June 8 letter, she described herself as “frightened by the golf balls". On June 9, she used the phrase “akin to a rifle range". Mr. Ogilvie testified that Ms. Norton's yard is approximately 30 yards off the tee. Most hooks and slices take place approximately 150 feet or more down at the tree line. In August of 2011, the fence was raised. He was contacted by Ms. Norton to thank him for the new fencing following the increased height.

On October 6, 2011, there was a discussion regarding the broken gargoyle and mirror. In 2012, Brightwood hired several course monitors to observe the frequency with which golf balls are hit over the fence. The defendant submitted as Exhibit 21, a log prepared by several monitors. The following dates were noted as having been observed: April 21, 2012 - Matt Taylor observed a ball go over the fence, hit the tree and fall into the yard at 8:52 AM. April 22, May 19, May 20 - Mike McKinnon, Dave Surette and Matt Taylor observed no balls hit over the fence.

May 21st, 2012 - a ball hit the fence at 4:23 PM but did not enter the property. July 20, 2012 - Andrew Nearing observed a ball hit over the right corner of the fence, but it appeared to go right into the woods on the right side of the hole. July 21, 2012, Matthew Taylor and Andrew Nearing observed a ball hit over the right corner of the fence as above at 2:30 PM. July 22, 2012 - Matthew Taylor and Andrew Nearing observed a ball go through the leaves of the trees and land but “did not sound as if it hit anything”. July 14, 2013 - Jason Sieber and Andrew Nearing were the monitors.

One ball went over the fence, hit a tree and dropped down. The

monitors could not tell what yard it went into. On July 13, July 20, and July 21, 2013, Stephen Moore, Matt Gallupe and Mike Pigott, respectively monitored the tee. They did notobserve any balls going over the fence. Mr. Ogilvie inquired with the members who played the day balls were hit, nobody recalled hitting a ball over the fence on that date.None of the monitors gave evidence. Mr. Ogilvie first heard of Benny the cat having problems in the spring of 2011. He investigated it to determine if it was “legitimate” andcaused by the golf balls. When cross examined by Mr. McKenzie, Mr.

Ogilvie acknowledged that the golf course reimbursed Ms. Norton for damage to thegargoyle and the mirror. It is their practice to repair legitimate claims that are “caused more likely than not” by golf balls. He describedthe chance of the ball leaving the fairway in the direction of the Norton house as being very minute. He confirmed that during the course of three summers, Brightwood monitors watched the number one and number two holes on 12separate occasions and on six of those occasions balls were hit in the direction of the property. He indicated that he would have had nodifficulty paying Ms.

Norton had damage been found to have occurred. Mr. Ogilvie did not recall Mr. Fagan discussing a ball nearly hitting him. He recalled having a discussion with him and his wife aboutraising the fence. The height of the fence was raised again in August 2011 after discussions with Ms. Norton. He acknowledges that hewas not the general manager at the time that Mr. Fagan and his wife had issues with the golf course. Affidavit of Elizabeth Roscoe The Defendant also submitted, with the consent of Claimant’s counsel, an Affidavit sworn by Elizabeth Roscoe of Malagash, NovaScotia. Ms.

Roscoe is a retired Justice of the Supreme Court of Nova Scotia, the Supreme Court (Family Division) and the Nova ScotiaCourt of Appeal. She swore that she had been a member at Brightwood for 20 years and played between 40-50 rounds per year. Sheplayed with all levels of players and did not ever see a golf ball traverse the boundary fence at “45 Thistle Street” rather than 47 ThistleStreet. The Law The law describes nuisance as conduct which unreasonably interferes with another’s use or enjoyment of their land. In his brief, Mr.MacKenzie cites Smith v. Autoport Ltd. (1973), (NS SC), 11 N.S.R. (2d) 569 (NSSC).

Associate Chief Justice Smith stated the following in Burpee v. Bernikier, 2013 NSSC 272: “As indicated previously, when considering an action in nuisance, the focus is typically on the nature of the interference suffered by theclaimant more so than on the defendants’ conduct.” Indeed Justice Linden has stated in Canadian Tort Law (9th ed.) at p. 569: “For the most part, whether the intrusion resulted from intentional, negligent or non-faulty conduct is of no consequence, as long as theharm can be categorized as a nuisance.”

It is relevant to consider the applicability of nuisance in the context of a golf course. In his brief, Mr. MacKenzie cites the British Columbia Provincial Court decision in Skobleniuk v. Eaglestar Golf Inc., 2006 BCPC 377,where Judge P. M. Doherty stated the following: “[16] In this case, is the barrage of golf balls emanating from the Defendant's property onto the property of the Claimants merely trivialor unreasonable? [17] This is not the first case in Canada, obviously, in which a court must determine whether a golf course is responsible for causing anuisance.

There are a number of cases that consider the issue. They seem to have in common the general view that nuisance isexacerbated and established based on the frequency and seriousness of the interference. In those cases where over 200 golf balls, and upto 2,577 golf balls in one case, landed upon a Plaintiff's property that was sufficient to establish compensable nuisance. On the otherhand, ten or 20 golf balls per year did not. [18] Not only did the Claimants have some 250 golf balls land on their property, several struck their home sufficiently hard to dodamage.

In one instance a skylight was broken, in another, a shutter damaged. [19] I agree with Defendant's counsel when he says it is not unreasonable for a property owner located adjacent to a golf course to expect“some” golf balls might land on their property. Some, however, does not mean 250 golf balls.” The Alberta Queen’s Bench dealt with the case of damage to property from a neighbouring driving range in Carley v. Willow Park GolfCourse Ltd., 2002 ABQB 813. Mr. Justice C. S.

Brooker awarded damages and an injunction in an action for nuisance to the plaintiff: “...there is a long history of problems with errant golf balls from the driving range landing on the houses and in the yards of the homesbacking onto the driving range, including the plaintiffs’ home. The evidence also shows that the golf club has, over the years, taken anumber of steps to try and solve, or at least, ameliorate the problem. To that end, the club has, over the years, erected various fences anddifferent size nets along the range’s west boundary.

It has also tried to re-orient the direction of some of the tee-off mats. It has trieddifferent types of range balls. While these remedial steps reduced the severity of the problem, they did not eliminate it.” “The plaintiffs concern is not with respect to balls simply rolling into their yard from the range. Their concern is with respect to ballswhich fall into their yard from some altitude, either passing right through or over the 90 foot net.

While it is not possible for me on theevidence to determine how many of the balls introduced in evidence came over or through the 90 foot net, there is no doubt that asignificant number did.....” “His experience with the range in 2000 was that he had 10 to 12 errant balls in his yard on a bad day and two to three balls in his yard ona good day. Prior to 2000, errant balls had broken one skylight and one window in his home. In 2000 he had a fractured window in hislaundry room.” It is necessary to review the facts and evidence tendered in this case.

Findings Unlike many cases before this court, I have had the benefit of a unanimous slate of very truthful, honest and forthright witnesses fromboth parties. Indeed, it is rare to have evidence tendered by senior members of the bench and bar and of the teaching profession all in thesame matter. Thus, the findings cannot be based entirely on believability. They are all believable. As noted by Justice Gregory Warnerof the Supreme Court of Nova Scotia in the case of Bocaneala v.

Liberatore, 2013 NSSC 372, the process involves more than that: “[31] Fact finding requires the Court to assess both reliability and credibility. Reliability relates primarily to the assessment of awitness’s capacity to observe, recall and communicate accurately.

Credibility involves the assessment of the believability or truthfulnessof evidence. [32] In R v Béland, (SCC), [1987] 2 SCR 398, at paragraph 20, the Supreme Court recognized the significance of oralevidence in the assessment of credibility since litigation replaced trial by combat as the method for resolving disputes. [33] To assist in the assessment of credibility courts have approved many tools. I have done so in several decisions, including, inparticular, Re: Novak Estate, 2008 NSSC 283. Among the tools used are:

i) a consideration of the motives that witnesses may have to give the evidence as they do;

ii) the consistency or inconsistency over time between the witness’s different iterations of the facts, and internal inconsistencieswithin a witness’s testimony; iii) the presence of collaborative or supporting evidence; iv) the demeanor or the manner of giving evidence, but with caution; and,

v) above all, the court has to assess what appears to make common sense; in that regard, this Court notes the words of JusticeO’Halloran of the British Columbia Court of Appeal in Faryna v. Chorny, (BC CA), 1951 Carswell BC 133,at paragraphs 9 and 10: If a trial judge’s finding of credibility is to depend solely on which person he thinks makes the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. . . . theappearance of telling the truth is but one of the elements. . . .

Opportunities for knowledge, powers of observation, judgment, memory,ability to describe clearly what the witness has seen or heard, as well as other factors, combine to produce what is called credibility. . . .The credibility of interested witnesses, that is . . . cannot be gauged solely by the test of whether the personal demeanor of particularwitness carried conviction of the truth. The key passage is this: The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existingconditions.

In short, the real test of truth of the story of a witness in such a case must be its harmony with the preponderance ofprobabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.(underlining mine) [34] It is not required that a trier of fact believes or disbelieves a witness’s evidence in its entirety. On the contrary, a trier may believenone, part or all of a witness’s evidence, and attach different weight to different parts of it.” I have considered the following issues of fact: - Did golf balls leave the course and enter into Ms.

Norton’s yard? - How frequent did golf balls leave the Defendant’s property? - Did the golf ball(

s) cause injury to Benny? Golf Balls Leaving the Course All of the Claimant’s witnesses, with the exception of Dr. Bishop, viewed a ball travelling into the property, heard one hit the property orsaw one after it had landed. Likewise, Jeannette MacDonald and Ron Fagan for the Defendants have also observed balls entering theproperty. Brightwood’s own course monitors observed balls as well. It is clear that balls do enter Ms. Norton’s property. However, asnoted from several cases, that alone is not sufficient to establish nuisance.

Frequency In reviewing the evidence, the range of frequency of golf balls entering the Norton property varies with each witness - anywhere fromnone to at least one or two every other weekday and more on the weekend. I have set out the following chart to illustrate the range ofballs witnessed. Witness For Number of BallsRoy Andrew Aresnault Claimant Some landing in yard.Robyn Pennell Claimant 1-2/day during week 2-3/day weekends in her yard. More in her yard.

Marion Fortune Stone Claimant 11 balls found on Father’s Day 2012 Theresa Zukauskas Claimant Described seeing a golf ball Rick Hartlen Claimant Met early June 2012. Saw ball almost to patio deck and close to the fence. Ann-Noreen Norton Claimant Every two days or so. Other letters – once per day. Oct 3-6 – 24 balls Suzanne Hood Defendant No golf balls Barbara Winges Defendant No golf balls from forward tee or back tee. Hazel Jeannette MacDonald Defendant One ball in 2013 Karen Mader Defendant Possible and saw one off toe of club.

Georgina MacDonald Defendant Never Donna Spencer Defendant Balls shanked toward fence – very low. Peter Naud Defendant Balls bounce off fence but never clear Ronald Fagan Defendant 2 balls with a broken window up high, Heard balls hit the fence and trees James Henry Ogilvie Defendant Tee monitors: Not often – a few each summer. The witnesses who described seeing balls enter Ms. Norton’s yard the most often were present all of the time, Ms. Norton who lived there, her neighbour, Robyn Pennell and her sister, Marion Fortune-Stone. The golfers have either never seen a ball leave the course (Hood, Winges, G.

MacDonald, Spencer, Naud) or only once or a few times (J. MacDonald, Mader, the Brightwood monitors). However, given the quality of players and their co-players, it would be unusual to see as many errant shots in that group. It is noteworthy that the Fagans requested the height of the fence be increased. I accept Mr. Fagan’s evidence that he suffered two broken windows. However, I also find that there must have been more than those two golf balls that entered his yard at that time. For the Claimant, Mr. Arsenault did not quantify the number of times he heard or observed golf balls.

However, in his testimony, he indicated that he did not see the balls enter the yard, although he would eventually find some. He testified to hearing them near the fence and the trees. Similarly, both Rick Hartlen and Marion Fortune Stone testified to seeing and hearing balls in the yard on a more frequent basis. I accept the evidence of both Ms. Fortune-Stone and Mr. Hartlen however these incidents occurred only on certain dates. Robyn Pennell enjoys living next to the golf course and does not have any issue with golf balls entering her yard.

She makes a point of picking up balls to ensure her dogs do not have too many of them. There are in evidence several e-mails from Ms. Norton protesting the presence of golf balls. Her descriptions are vivid describing the golf balls as “dangerous missiles” and the golf balls are similar to a shot at a “rifle range”. She described Ms. Pennell’s dogs as enjoying the golf balls, yet Ms. Pennell testified to being vigilant about picking them up. Ms. Norton’s language and some of the circumstances were obviously exaggerated. However, I do believe that she has experienced quite a number of golf balls entering the yard.

Yet, I am unable to quantify the amount with any accuracy. I do not believe it is possible to properly estimate the amount of golf balls that enter Ms. Norton’s yard in a given summer. I am not

satisfied that it occurs every other day, several times per day. The tee-box for #2 is located close to her house. Likewise, the fairway forthe first hole is also in close proximity. Brightwood is busiest in the summer and it would be possible to hear balls being struck andhitting nearby bushes and trees. I agree with Ms. McKenna’s submissions that the angles from the # 2 tee and the fairway for the firsthole reduce the amount of errant balls from either direction. However, as noted in my previous findings, it is not impossible.

Injury to Benny the Cat and Other Alleged Damage The Small Claims Court can only award compensation in damages in matters heard before it. As a result, I am left to consider only thoseitems of damages claimed by Ms. Norton, namely the window and gargoyle ornament and reasonable veterinary costs for injury toBenny. It is possible to award general damages but only to a maximum of $100. If there is no injury to Benny, then any recovery couldnot exceed $100 plus any applicable costs. I accept Ms. Norton’s evidence that she witnessed a ball hit Benny. I have read the report of Dr. Jennifer Bishop.

I was impressed withher testimony and the process she used to determine the cause of the displacement in Benny’s tail and his subsequently erratic andnervous behaviour. In looking at her report, I am satisfied that she considered the various other causes of acute onset displacementbehaviour and concluded the most obvious cause would be “the golf balls falling on or near him.” Therefore, I find that at least one golfball and the sounds of balls being struck and or falling around or near him would cause the cat to exhibit stressed behaviour. There has been damage done in the past to two windows owned by Mr. Fagan.

Brightwood paid for a new mirror and gargoyle, thus it ispossible golf balls caused their breakage as well. Brightwood has taken steps to rectify or ameliorate the problem. In Ms. Norton’s view, it is not sufficient. Regardless of the outcome, Icannot order them to do anything further, although that is in my view something worthy of consideration on Brightwood’s part. Finding of Nuisance The principle of what constitutes nuisance is set out by the County Court in O’Regan v. Bresson (1977), (NS SC), 23N.S.R. (2d) 587 (Co.

Ct.) where private nuisance is defined as follows: “10 Turning then to the law respecting private nuisance, the following excerpt from Street, ‘The Law of Torts’ (5th Ed.), p. 215, wasquoted with approval by Jones, J. in Smith v. Richardson (1977), 23 N.S.R. (2d) 407: ‘A person, then, may be said to have committed the tort of Private nuisance when he is held to be responsible for

an act indirectlycausing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the lightof all the surrounding circumstances, this injury or interference is held to be unreasonable.’ Some further insight into the extent of the interference with the plaintiff’s enjoyment of his property before a private nuisance can befound to exist, and the lawful limits of that interference can be gleaned from the following quotation from Clerk and Lindsell on Torts(supra) at pp. 784 and 785: ‘In nuisance of the third kind, ‘the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom,anything that discomposes or injuriously affects the senses or the nerves’, there is no absolute standard to be applied.

It is always aquestion of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The actscomplained of as constituting the nuisance, such as noise, smells or vibration, will usually be lawful acts which only become wrongfulfrom the circumstances under which they are performed, such as the time. place, extent or the manner of performance.’” The foregoing statement of Judge MacLellan (as he then was) accurately describes the issue in this case. The operation of a golf course islegal and desirable as an activity performed by the Defendant.

However, in order to establish that the golf course has substantiallyinterfered with the use and enjoyment of Ms. Norton’s land, it is necessary to find an unreasonable interference with her enjoyment of theproperty. As noted by Justice MacLellan, it is a matter of degree. It is also worth noting the following from that case: “The fact that the plaintiff has come to the nuisance does not prevent him (or her) from recovering damages.” Thus, it is of no consequence that the golf course had been there for 100 years. If the activity inhibits Ms.

Norton’s use and enjoyment ofher property, Brightwood is liable in nuisance.

In considering all of the evidence, I find that an indeterminate number of golf balls entered the Claimant’s property since she moved there in August 2010. A golf ball when struck can cause significant damage. One such ball struck Ms. Norton’s cat, Benny. A cat when struck by a golf ball can experience injury, physical pain and emotional trauma. I find that is what happened to Benny. I do not fully accept the evidence of Ms. Norton or Ms. Pennell as to the number of balls hit into their yards. Both gave estimates which were inconsistent with each other. Ms.

Pennell claims that she has 1-2 balls during the week and 3-4 per day on the weekend in her yard at 45 Thistle Street. In her view, Ms. Norton has more. Ms. Norton, however, claims to have one or two every second or third day. At no point, did either of them count the balls, which they could easily have done in the way that the plaintiffs did in the cases cited above. Further, I find it telling that in spite of this large number, Ms. Pennell enjoys the location and the green space. Yet she experiences a similar or a slightly higher volume of balls hit into her yard than does Ms. Norton. It is unfortunate that Ms.

Norton has experienced balls entering her yard, one of which caused injury to her cat. However, I am unable to not only quantify the amount of balls hit in her yard, I am unable to satisfy myself that the amount of balls entering her yard unreasonably interferes with her use and enjoyment. In spite of the injury to Benny and my finding that golf balls do enter her yard more frequently than claimed by Brightwood, I find that the Claimant has not discharged the onus upon her to establish an unreasonable interference with the use and enjoyment of her property, such that a finding in nuisance is justified.

The claim is dismissed. This is an appropriate case for each party to bear their own costs. Provisional Assessment of Damages Ms. Norton has submitted receipts for Benny’s treatment. She has claimed $1945.32 which I find to be reasonable. In addition, I would have ordered general damages of $100 and costs of $98.16.

Summary In

summary, the claim is dismissed with each party bearing their own costs. Order accordingly. Dated at Halifax, NS, on October 17, 2014. ______________________________ Gregg W. Knudsen, Adjudicator Original: Court File Copy: Claimant(

s) Copy: Defendant(s)