Northern Light Arabians, Theresa I. Hora, Elizabeth M. Hora v. James N. Dell, 2011 SKPC 151

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 151 Date: September 28, 2011 File: 10/11 Location: Moose Jaw _____________________________________________________________________________ Between: Northern Light Arabians, Theresa I. Hora, Elizabeth M. Hora and James N. Dell - and - Robert Sapergia Daniel Killick For the Plaintiff David Chow For the Defendant _____________________________________________________________________________ JUDGMENT J. KALMAKOFF , J _____________________________________________________________________________ [ 1 ] Good fences make good neighbours. In some cases, such as this one, the absence of a good fence makes for the opposite.

[ 2 ] The Plaintiffs, Theresa Hora, Elizabeth Hora and James Dell, own and operate Northern Light Arabians. The Plaintiffs reside on, and conduct their business from, a ranch located in the Rural Municipality of Hillsborough, Saskatchewan. Their business involves breeding, raising, training and showing Arabian horses, as well as providing horseback riding instruction. As such, they keep approximately 130 horses on their property. The Plaintiffs own 575 acres of land, and rent approximately 1,700 more for pasture. They also operate a black angus cattle operation.

In addition to their livestock operations, the Plaintiffs also house six mentally and physically challenged persons on their property in an assisted living home. [ 3 ] The Defendant, Robert Sapergia, also resides on a ranch in the R.M. of Hillsborough. In fact, his ranch is on the land adjacent to the Plaintiffs’ ranch. Mr. Sapergia keeps approximately 30 thoroughbred horses on his property. [ 4 ] The border between the Plaintiffs’ property and the Defendant’s property is made up, in part, of a road allowance. The land on which the road allowance lies is owned by the R.M. of Hillsborough.

The Plaintiffs’ property is generally on the north side of the road allowance, and the Defendant’s property generally on the south. [ 5 ] A portion of the road allowance is actually used and maintained as a road, as it leads directly to the Defendant’s yard site. However, the remainder of the road allowance, which extends to the west past the Defendant’s yard, has not been maintained by the R.M. for more than 20 years.

That portion of the road allowance at one time led to the Plaintiffs’ yard site; however, in 1989 or 1990, the R.M. constructed an alternate road leading to the Plaintiffs’ yard, and stopped maintaining the portion that extended to the west past the Defendant’s yard. Although the R.M. no longer maintains that portion of the road allowance, it has not abandoned the land. [ 6 ] The Plaintiffs’ land, on the north side of the road allowance, is fully enclosed by a perimeter fence, erected and maintained by the Plaintiffs.

To the west of the Defendant’s yard, along the portion of the road allowance no longer maintained by the R.M., the Defendant’s property on the south side of the road allowance is not fenced. The absence of a fence in that area means that the Defendant’s horses, if not locked in their corrals, can leave the Defendant’s property and enter the road allowance. At times, the Defendant’s horses leave their pasture and graze in the road allowance area.

On occasion the Defendant’s horses have also made their way down the road, either entering the Plaintiffs’ property, or coming close enough to it so as to cause problems for the Plaintiffs and their horses, or for people trying to use the road. [ 7 ] The Plaintiffs have attempted to convince Mr. Sapergia to erect a proper fence on his side of the road allowance, so as to rectify the situation. Mr.

Sapergia has refused to do so, and the Plaintiffs say that this refusal has unreasonably interfered with their use and enjoyment of their property by causing distress to them, their horses, and the clients of their business ventures, as well as producing significant interpersonal conflict between the parties. ISSUES [ 8 ] The issues in this case are as follows:

(1) Is the Defendant liable in nuisance; and

(2) If so, what is the appropriate remedy?

(1) Is the Defendant liable in nuisance? [ 9 ] At first glance, the circumstances of this case may suggest a claim based in the strict liability tort of animal trespass. However, to succeed in such an action, the Plaintiffs would have to establish that damage was caused to their property or person as a result of the Defendant’s horses escaping. [1] The only evidence before me in that respect relates to an incident in 2000 where the Defendant’s horses entered the Plaintiffs’ yard, causing the Plaintiffs’ horses to become excited and scared.

This led to one of the Plaintiffs’ mares suffering an injury, which resulted in significant veterinary expenses as well as a decrease in the value and earning potential of that mare. While this may have been actionable at the time it occurred, recovery for animal trespass is now barred by The Limitations Act, S.S. 2004, c. L-16.1.

[ 10 ] The only recent incident involving the Defendant’s horses trespassing on the Plaintiffs’ property occurred in October of 2010. At that time, a number of the Defendant’s horses escaped from the Defendant’s yard, and entered the Plaintiffs’ property. The Defendant’s horses ate from the Plaintiffs’ haystack, and some damage was caused to the Plaintiffs’ fence. The Plaintiffs’ horses also suffered some distress as a result of interaction with the Defendant’s horses.

On this occasion, the Plaintiffs impounded the horses, and released them when the Defendants paid an appropriate impound fee. [ 11 ] Apart from that, there is no evidence before me of any specific instance where the escape of horses from the Defendant’s property has caused damage or injury to the Plaintiffs or their property. [ 12 ] Therefore, the Plaintiffs have advanced their claim in nuisance.

The tort of nuisance consists of a substantial and unreasonable interference with the use and enjoyment of another person’s property. [2] The Plaintiff in such a case is not required to prove negligence; the substantive requirement of the tort is satisfied upon proof of tangible damage, or a significant degree of discomfort or inconvenience resulting from the Defendant’s activity.

Once the Plaintiff has established the existence of an actionable nuisance, the onus shifts to the Defendant to establish that the use of the land was reasonable. [3] [ 13 ] The law of nuisance does not provide a remedy for trifling or small inconveniences, but only for those which sensibly diminish the comfort, enjoyment or value of the property affected. [4] Legal intervention is warranted only where the Defendant’s excessive use of property causes inconvenience beyond that which other occupiers of property in the vicinity can reasonably be expected to bear. [ 14 ] Courts must recognize that, in organized society, people are expected to put up with a certain amount of discomfort and annoyance from the legitimate activities of their neighbours. [5] The tort of private nuisance is not established every time one’s neighbour does something that is bothersome.

In order to be actionable, the interference in question must be intolerable to an ordinary person.

Compensation will not be awarded for trivial annoyances. [6] The invasion or interference complained of must be substantial, serious, and clearly unacceptable according to accepted concepts of the day. [7] [ 15 ] Deliberate, significant, and unjustifiable interference with a neighbour’s property (including such actions as harassment, intimidation and invasion of privacy), can amount to nuisance. [8] [ 16 ] In considering whether the interference with the use and enjoyment of the Plaintiff’s property is severe enough to be actionable, the Court must consider the following: [9] (1) the severity of the interference, having regard to its nature, duration and effect; (2) the character of the location; (3) the utility of the Defendant’s enterprise; and (4) the sensitivity of the Plaintiffs.

The severity of the interference, having regard to its nature, duration and effect [ 17 ] The interference complained of in this case is something which can best be described as a long-lasting, moderate intensity annoyance. Elizabeth Hora detailed the nature of the annoyance in her testimony. I found Ms. Hora to be a credible and reliable witness, and I accept her testimony.

[ 18 ] Ms. Hora said that, over the years the Plaintiffs have had their ranch next to the Defendant, there have been a number of occasions when the Defendant’s horses entered the Plaintiffs’ yard and ate at their hay stack. Most of these occasions occurred in winters past, however. This has not occurred recently. [ 19 ] In addition to that, the Defendant’s horses have frequently grazed on the Plaintiffs’ side of the road allowance, between the roadway and the Plaintiffs’ fence.

She says this is significant because the Plaintiffs take the position that they should be entitled to cut and use this hay for their own horses. [ 20 ] The frequent presence of the Defendant’s horses in the road allowance has caused other problems for the Plaintiffs and their horses. Ms. Hora noted that the unnecessarily close proximity of the Defendant’s horses in the road allowance has at times led to conflict and stress for the Plaintiffs’ horses.

Employees of the Plaintiffs, such as Trina Martens, also encountered inconvenience and had to exercise extra precautions when working with horses on the Plaintiffs’ property. [ 21 ] Ms. Hora says that the Plaintiffs have also had to take extra precautions with their riding students, to guard against unexpectedly encountering the Defendant’s horses (the potential problem being that the student’s horse could be spooked and either rear up or gallop off, which would be dangerous for an inexperienced rider). This was corroborated by the testimony of Andrea Hart.

The extra precautions included altering lessons, changing routes, and having to be extra vigilant.

While I expect that any responsible riding instructor would be alive to the possibility of unexpected encounters with other horses or animals, and would take appropriate measures to ensure safety, it is clear that the Defendant’s refusal to fence the last portion of his pasture in this case meant that the possibility of unwanted and unexpected encounters with his horses was significantly increased, requiring extra precautions that were time consuming, and which affected the quality of the riding instruction provided to the Plaintiffs’ students. [ 22 ] There have also been incidents where the Defendant’s horses entered the Plaintiffs’ yard, causing significant distress to the Plaintiffs’ horses.

Those occasions include the incident in 2000 where one of the Plaintiffs’ mares suffered a broken fetlock, and the incident in October 2010 where the Plaintiffs were required to impound the Defendant’s horses. This latter incident not only caused stress to the Plaintiffs’ horses, but considerable stress to the Plaintiffs and the assisted-living residents they care for. Because of such incidents, and the frequent presence of the Defendant’s horses in the road allowance, the Plaintiffs have also had to “lock down” their yard, for fear of the Defendant’s horses entering it unexpectedly.

They have had to erect a gate on their premises to keep the Defendant’s horses out, and have had to restrict the freedom and travel about the property of their assisted-living residents. These measures would not be necessary if the Defendant would fence his side of the property. [ 23 ] Furthermore, the frequent presence of the Defendant’s horses on the road has created inconvenience for clients of the Plaintiffs’ business, and, according to Ms. Hora, has been potentially damaging to the image of the Plaintiffs’ business.

This is so, she says, not only because the Defendant’s horses impede access to the Plaintiffs’ yard, but also because the Defendant’s horses are not of the same quality as those of the Plaintiffs, and their presence may reflect negatively on the quality of the Plaintiffs’ stock, making them less desirable to potential breeding clients. [ 24 ] Ms.

Hora also testified that the Plaintiffs have not been able to construct a riding arena in the preferred area of their property, as that area is in close proximity to the edge of the property near the road allowance, and the potential for close contact with the Defendant’s horses is too great. [ 25 ] This dispute has also sparked confrontations between Ms. Hora and the Defendant, including times when the Defendant has scared her by driving close to her with his vehicle, or has made threatening comments. [ 26 ] The Defendant, Mr. Sapergia, said that he does not allow his horses to run at large.

The last portion of the road allowance has never been fenced, he said, and his horses have always grazed the area covered by the road allowance. Mr. Sapergia said that the only occasions on which his horses entered the Plaintiffs’ yard were those occasions when he was away working, and his horses broke out of the fenced enclosure on his property. He also said that he only grazes his horses in the road allowance when they are under his supervision.

While he may feel that is the case, it is clear to me that while his horses graze the road allowance, he does not provide a level of supervision and control of the horses that is sufficient to prevent them from becoming a problem to the Plaintiffs. [ 27 ] Rather than erecting a proper fence on his side of the road allowance, the Defendant has erected a makeshift ‘hot-wire’ fence

across the road allowance, beginning just west of his yard. While this has kept the Defendant’s horses out of the Plaintiffs’ yard, and out of the more easterly portion of the road allowance, it has impeded the Plaintiffs’ access to the western portion of the road allowance, creating inconvenience for anyone attending the Plaintiffs’ yard. The R.M. of Hillsborough did not authorize the Defendant to put a fence across the road allowance. In fact, the R.M. advised the Defendant to remove it, but took no further enforcement action. Ms.

Hora says the presence of this fence has also required the Plaintiffs to move their feed yard because it made delivery of feed to the prior location much more difficult. [ 28 ] It should be noted that, while Ms.

Hora said in direct examination that such problems had been continuous over the past 7 - 8 years, and had increased in frequency in the last two, she acknowledged in cross-examination that there have only been two occasions since October of 2010 when she has noticed the Defendant’s horses on the road allowance, and since that time the Defendant’s horses have not been on the Plaintiffs’ property. [ 29 ] Individual instances of horses getting out into the road allowance, onto the road, or encroaching onto the Plaintiffs’ property would not necessarily amount to nuisance.

However, in this case, the problem has persisted for more than two decades. It has been punctuated with instances of conflict; some minor, and some not so minor. At the heart of the conflict lies Mr. Sapergia’s refusal to properly fence the last portion of pasture on his side of the road allowance. Rather than take that rather obvious step to alleviate the problem, Mr. Sapergia has chosen to do what he can to frustrate the Plaintiffs and treat the road allowance in question as his own personal property. When considered individually, the effect of each incident complained of is not terribly significant.

When considered cumulatively, the effect is much more substantial. [ 30 ] Although the Plaintiffs have not framed their claim as breach of statutory duty, the provisions of The Stray Animals Act , R.S.S. 1978, c. S-60 are worthy of mention when considering this factor.

Section 3 of that Act prohibits owners of animals from allowing them to run at large.

Section 27 of the Act makes the owner of a stray animal liable to others if the animal causes damage to property. The Act defines “running at large” and “stray” in

section 2, as follows: 2(p) “running at large” means, with respect to an animal, not being on the premises of its owner and not under the immediate, continuous and effective control of its owner; (q) “stray” means an animal that is unlawfully running at large or that has broken into premises enclosed by a lawful fence. [ 31 ] On the evidence before me, much, if not all of the interference with the use and enjoyment of the Plaintiffs’ property has occurred where the Defendant’s horses would meet the definition of “stray” or “running at large” under The Stray Animals Act .

This is a factor which, in my opinion, tends to suggest that the interference is not reasonable. The Character of the Location [ 32 ] Generally speaking, if the use of property by the Defendant is consistent with the general use of land in the neighbourhood in question, it cannot be said to be unreasonable. [10] [ 33 ] In this case, the location in question is a relatively remote, rural area. It is ranch land, where individual yard sites are surrounded by wide open stretches of pasture land. One would expect to be able to keep animals without undue restrictions on their movements.

However, people must use their property reasonably, having regard to the fact that they have neighbours. [11] Anyone choosing to keep animals must also respect the boundaries and interests of their neighbours, and use their own property in a way which does not inappropriately interfere with the operations of their neighbours. [ 34 ] It is not realistic to expect that ranchers will be able to watch all their horses at all times, nor is it reasonable to expect that horses will be locked down at all times when their owner is not present.

The likelihood that animals may get loose and be at large is certainly very real, and not unexpected or unreasonable. That said, it is also reasonable to expect that anyone keeping animals will have their property properly fenced so as to prevent, to the greatest extent possible, their animals straying or escaping. The Utility of the Defendant’s Enterprise

[ 35 ] Mr. Sapergia owns horses. There is no evidence before me as to whether he owns them for business, or derives any economic benefit from his horses, or whether he simply keeps them as a hobby. Nobody in this case questions Mr. Sapergia’s right to keep horses on his property or the utility of such a venture. [ 36 ] However, the “enterprise”, if it can be termed as such, which gives rise to the offending conduct, is Mr. Sapergia’s failure or refusal to properly fence off the pasture land on his side of the road allowance, and his desire to continue using the road allowance as his own personal property.

I fail to see how those things are necessary for Mr. Sapergia to continue to raise horses. While I accept that doing so adds to his pasture land, and provides additional grazing area to feed his horses, there is no evidence to suggest that he is entitled to do so, or that he would not have some other method of feeding his horses. In essence, Mr. Sapergia’s unwillingness to properly fence his side of the road allowance benefits only him. That has little utility, in my view. The Sensitivity of the Plaintiffs [ 37 ] The Plaintiffs in this case are particularly sensitive.

A number of the problems they describe are problems only because they, themselves, own horses and operate the business they do. The Plaintiffs are more sensitive in this case because they are required to maintain an extremely high standard of health and quality in their horses. They are more sensitive because of the fact that a part of their business involves providing riding instruction to inexperienced horseback riders, and also because of the assisted-living residents on their property.

Someone using the land for a different purpose would likely be less affected by the presence of the Defendant’s horses in the road allowance and in proximity to their land, but not entirely unaffected. CONCLUSION RE: LIABILITY [ 38 ] Taking all of those factors into account, I am satisfied on a balance of probabilities that the use of the land by the Defendant amounts to a substantial and unreasonable interference with the Plaintiffs’ use and enjoyment of their property. Not every individual incident has been significant.

However, the problem has persisted for so long that the cumulative effect has become substantial. Moreover, the Defendant has been aware of the problem, and the easy way in which it could be rectified (i.e. erecting a proper fence on his side of the road allowance) for nearly as long as the problem has existed. Despite having that knowledge, the Defendant has refused to take that step. He has chosen, instead, to take steps to torment and frustrate the Plaintiffs. The only fence he has put in place is one that is not authorized by the R.M., and improperly impedes access to property that is not his.

The Defendant’s actions have clearly interfered with the Plaintiffs’ use and enjoyment of their property, and in light of the glaringly obvious solution to the problem, that interference is clearly unreasonable. REMEDY [ 39 ] The Plaintiffs seek judgment in the amount of $5,000.00, as well as injunctive relief.

While a mandatory injunction requiring the Defendant to fence the remaining portion of his pasture would likely be the most effective and appropriate remedy in the circumstances of this case, such an order is beyond the authority of this Court. [ 40 ] In actions for nuisance, generally speaking, damages will be granted instead of injunctive relief where injunctive relief would be oppressive to the Defendant, or where the Plaintiff’s injury is adequately compensable in money. [12] To that, I would add that damages are appropriate where injunctive relief is not a remedy within the Court’s jurisdiction. [ 41 ] The Small Claims Act, 1997 permits the Court to award damages. [13] The difficulty in a case such as this is quantifying the damage.

The evidence before me does not disclose a specific loss or injury which is easily ascertainable. The damages are general in nature. However, where an actionable nuisance is proven, and the Plaintiff is subjected to discomfort and annoyance, they are entitled to be compensated accordingly. [14]

[42] In this case, the nuisance created by the Defendant’s actions is one which has persisted for a significant length of time. Noteach individual incident has been serious, but the cumulative effect is substantial. The nuisance has not been constant; there have beenperiods of time where the effect on the Plaintiffs has been more serious, and times when it has been less so. The award of damages mustreflect this fact. It must be sufficient to encourage the Defendant to take the reasonable step of fencing his side of the road allowance,yet not be so great as to be oppressive or overcompensate the Plaintiffs.

I am satisfied, on the facts of this case, that the sum of$2,500.00 strikes the appropriate balance. CONCLUSION [43] The Plaintiffs will have judgment in the amount of $2,500.00, plus costs of $50.00, and interest calculated in accordance withThe Pre-Judgment Interest Act, from January 7, 2011. J. Kalmakoff, J [1]Panchuk v. Sadler (2009), 2009 SKPC 106 , 340 Sask. R. 121 (Prov. Ct.) [2]Royal Anne Hotel Ltd. v. Ashcroft, (BC CA), [1979] 2 W.W.R. 462 (B.C.C.A.); City of Regina v. LakeviewGardens Ltd., 2004 SKCA 110; Strand Theatre Ltd. v.

Prince Albert (City), 2011 SKQB 209 [3]Linden & Feldtheusen, Canadian Tort Law, 9th Edition, LexisNexis Canada Inc. 2011, p. 579. [4]Banfai v. Formula Fun Centre Inc. (1984), (ON SC), 51 O.R. (2d) 361 (Ont. H.C.) [5]O’Regan v. Bresson (1977), (NS SC), 3 C.C.L.T. 214, 23 N.S.R. (2d) 587, 32 A.P.R. 587 (N.S. Co. Ct.) [6]St. Lawrence Cement Inc. v. Barette, 2008 SCC 64 , [2008] 3 S.C.R. 392 [7]Suzuki v. Monroe, 2009 BCSC 1403 [8]Saelman v. Hill, (Ont. S.C.); Windrem v. Couture, 2009 SKQB 339 [9]Royal Anne Hotel Ltd., supra, note 2; Tock v. St. John’s Metropolitan Area Board, (SCC), [1989] 2 S.C.R.1181; St.

Lawrence Cement Inc., supra, note 6. [10]MacGregor v. Penner, (MB KB), [1993] 1 W.W.R. 245, 82 Man. R. (2d) 178 (Q.B.) [11]Fleming, The Law of Torts, 9th ed. (1998), at p. 467; quoted with approval in Pugliese v. Canada (National Capital Commission), (ON CA), 17 O.R. (2d) 129, 3 C.C.L.T. 18, 79 D.L.R. (3d) 592 (C.A.), varied

(sub nom. National Capital Commission v. Pugliese) (SCC), [1979] 2 S.C.R. 104 [12]Linden & Feldtheusen, Canadian Tort Law, supra, note 3, at p. 607. [13]S.S. 1997, c. S-50.11, at s. 3(1) [14]Olah v. Cadillac Fairview Corp., [1990] S.J. No. 344 (Q.B.)