Rowe v. Walker, 2018 BCPC 251

Citation: Rowe v. Walker 2018 BCPC 251 Date: 20181011 File No: C-02445 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil BETWEEN: KEITH ROWE CLAIMANT AND: MICHAEL WALKER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Claimant: A. Marsden Appearing in person: M. Walker Place of Hearing: Courtenay , B.C. Dates of Hearing: July 23, October 9, 2018

Date of Judgment: October 11, 2018 The Facts [1] Mr. Rowe and Mr. Walker are the owners of adjoining properties in Courtenay, British Columbia. [2] Mr. Rowe lives on his property, from which he operates a business as a contractor specializing in the construction andmaintenance of fences. There are several industrial buildings on Mr. Rowe’s property, in which he keeps his machinery and equipment. [3] Mr. Walker resides in West Vancouver. His employees manage a mobile home park on his property. [4] The relationship between the two men is hostile and litigious. They dislike each other intensely. For their litigious history, thereader is referred to Shamrock Fencing

(1992) Ltd. v. Walker [2015] BCJ No. 2265; [2015] BCPC 289; [2016] BCJ No. 1751; 2016BCPC 244. [5] In or about 2005, Mr. Rowe built a fence on his property just inside the property line. It was about 600 feet long, 6 feet highand constructed of cedar panels. He stained the fence with a clear stain which preserves the wood but leaves the grain visible. In 2015,Mr. Walker’s manager, Mr. Goodrick, acting on Mr. Walker’s instructions, painted one side of the fence (the side facing Mr. Walker’sproperty) with an opaque brown stain. [6] Mr. Walker concedes that: (

i) when he instructed Mr. Goodrick to paint the fence, he knew that the fence was on Mr. Rowe’sproperty; and (ii) he neither sought nor received Mr. Rowe’s permission to paint the fence. He explains that the fence was an eyesoreand he was seeking to improve it for the benefit of his tenants. He thought that he was entitled to do so. [7] Mr. Goodrick tendered in evidence a number of photographs of the fence which he took shortly after he painted Mr. Walker’sside. The photographs clearly show that: a. The clear stain which Mr. Rowe applied, and which is still the finish in situ on Mr.

Rowe’s side, is a very attractive finish whichpreserves much of the original beauty of the wood. By contrast, the solid brown stain applied to Mr. Walker’s side of the fence by Mr.Goodrick is unattractive. b. Apart from the finish, the fence was in a very poor state of repair. The fence was not straight - it weaved from side to side. Some of the panels were falling down. Others leaned to one side or the other. Some of the fence posts were supported only bybuttresses installed by Mr. Walker’s employees on his side of the fence. Mr.

Goodrick said that, during a windstorm, a number of panels of the fence detached themselves from the fence structure and flew ontoMr. Walker’s property. He replaced those in their original positions and supported them by buttresses. [8] Mr. Rowe claims reimbursement for the following expenses incurred in construction of the new fence: (

i) replacement costs$11,088; (ii) stain $2,079; (iii) removal and disposal of the old fence $2,362; and (iv) survey costs $2,205, for a total of $17,734. He alsoclaims general, aggravated and punitive damages and a penalty under Rule 20(5) of the Small Claims Rules, which provides: A judge may order a party to pay the other party up to 10% of the amount claimed or the value of the claim or counterclaim if the partymade a claim, counterclaim or reply and proceeded through trial with no reasonable basis for success. Liability [9] As explained below, Mr. Goodrick’s action in painting the fence was a trespass, for which Mr. Rowe is entitled to damages,unless: (

i) the fence was a “nuisance” (in the technical legal sense); and (ii) painting the fence was a reasonable step to take in abatementof the nuisance. [10] A similar situation was addressed by Justice Boyd in Yadlos v. Sturdy [1989] BCJ No. 2191. She said: The Defendant had no right in law to trespass upon the plaintiffs' property and repaint the fence, albeit one which faced his ownproperty. A man is not under any duty to preserve the appearance of his lands for the benefit of his neighbours. (Walker v. PioneerConstruction Co.

(1967) Ltd. (1975) (ON SC), 56 DLR (3d) 677 (Ont. H.C.); Muirhead v. Timbers Brothers Sand &Gravel Ltd. (1977) 3 CCLT 1. Thus the defendant had no legal right to enter the plaintiffs' property since the fence did not constitute anuisance. The defendant's actions in entering upon the plaintiffs' property and repainting the fence (on either side) constitute a trespassand the defendant is accordingly liable for consequential damage. The phrase “… since the fence did not constitute a nuisance …” requires some explanation.

In some circumstances, a property ownerwhose enjoyment of his land is adversely affected by a “nuisance” created by his neighbour has the right to “abate” the nuisance; i.e. totake steps to mitigate the adverse effects of the nuisance on his enjoyment of his own property. [11] I place the word “nuisance” in quotation marks because Justice Boyd used the word in its technical legal sense, not in thevernacular. The meaning of the word in its technical legal sense was stated by Justice LaForest in Tock v. St.

John’s Metropolitan AreaBoard (SCC), [1989] 2 SCR 1181 at paragraphs 15 - 17: Generically, as Salmond on the Law of Torts, 17th ed. by R. F. V. Heuston, at p. 50, notes, "nuisances are caused by

an act or omission,whereby a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land". The same passage makes it clear that anuisance may take a variety of forms, ranging from actual physical damage to land to interference with the health, comfort or

convenience of the owner or occupier of land. The assessment whether a given interference should be characterized as a nuisance turns on the question, simple to state but difficult toresolve, whether in the circumstances it is reasonable to deny compensation to the aggrieved party. The courts have traditionallyapproached this problem of reconciling conflicting uses of land with an eye to a standard based, in large part, on the formulations ofKnight Bruce V.-C. in Walter v. Selfe (1851), 4 De G. & Sm. 315, 64 E.R. 849, and Bramwell B. in Bamford v.

Turnley (1862), 3 B. & S.66, 122 E.R. 27, at pp. 83-84 and at pp. 32-33 respectively. There it was observed that the very existence of organised society dependedon a generous application of the principle of "give and take, live and let live". It was therefore appropriate to interpret as actionablenuisances only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by thoseof plain and sober tastes.

In effect, the law would only intervene to shield persons from interferences to their enjoyment of property thatwere unreasonable in the light of all the circumstances. The courts are thus called upon to select among the claims for interference with property and exclude those based on the prompting ofexcessive "delicacy and fastidiousness", to employ the terms of Knight Bruce V.-C.

The courts attempt to circumscribe the ambit ofnuisance by looking to the nature of the locality in question and asking whether the ordinary and reasonable resident of that localitywould view the disturbance as a substantial interference with the enjoyment of land.

Among the criteria employed by the courts indelimiting the ambit of the tort of nuisance are considerations based on the severity of the harm, the character of the neighbourhood, theutility of the defendant's conduct, and the question whether the plaintiff displayed abnormal sensitivity. [12] The concept of “abatement” was described by Chief Justice Hughes In Bourgeois v. Losier [1975] NBJ No. 131; 11NBR (2d) atparagraph 32: Abatement means the

summary removal or remedy of a nuisance by the party injured without having recourse to legal proceedings. It isnot a remedy which the law favours and is not usually advisable. See Earl of Lonsdale v. Nelson (1823), 2 B. & C. 302, and LaganNavigation Co. v. Lambeg Bleaching, Dyeing and Finishing Co., Ltd., [1927] A.C. 226 (H.L.). In this case, I do not think that the fence could be described as a nuisance affecting Mr. Walker’s enjoyment of his property. It was not avery good fence, but there is no evidence to support an inference that its deficiencies materially affected the tenants in Mr.

Walker’smobile home park. [13] Of equal importance, the deficiencies in the fence were structural, not aesthetic. It is true that the fence was falling down, butthat deficiency could not be remedied by painting it. A trespass can be justified as an abatement only if the objective of the trespass wasto remove or remediate the nuisance. Even if the structural deficiencies in the fence were sufficient to justify a finding that it was anuisance, the steps taken by Mr. Goodrick were not directed to fixing that problem, and so were not an attempt at abatement. [14] It follows that Mr.

Walker is liable for damages for trespass. Damages [15] The following passage was quoted with approval by Justice Sopinka in Rainbow Industrial Caterers Ltd v. Canadian NationalRailway (SCC), [1991] 3 SCR 3 at paragraph 21: It is axiomatic that the object of damages is to put the party whose rights have been violated in the same position, so far as money can doso, as if his rights had been observed. Therefore, in a tort action the object is to put the plaintiff in the position he would have been in ifthe tort had not been committed. If Mr. Walker’s employees had not stained the fence, Mr.

Rowe would now be the owner of a 13 year-old fence in very poor condition. If I were to award him the full replacement cost of the fence, he would be in a much better position than that which he would haveoccupied if the tort had not been committed. [16] The legal principles applicable in such circumstances were reviewed in Nan v. Black Pine Manufacturing Ltd. (BC CA), [1991] BCJ No, 910; 80 DLR (4th) 153; 55 BCLR (2d) 241 and in Fudge v. Strata Plan NW2636 [2012] BCJ No. 2358;2012 BCPC 409 at paragraphs 85-94.

In some cases, it is appropriate to award the full replacement cost of the damaged structure,making no allowance for the fact that the new structure is substantially better, and more valuable; than the old structure which wasdamaged by the defendant’s tortious conduct. In others, it will be appropriate to make a deduction from the damage award for“betterment”. Where the evidence does not provide a reliable basis upon which to assess the extent of “betterment”, a conventionalfigure of 10% may be employed.

In Nan, Justice Wood said that the quantum of damages to be awarded must “… in all cases, depend onwhat is reasonable, both to the plaintiff and to the defendant tortfeasor …”. [17] In this case, the damaged structure was very near to the end of its useful life. Looking at the photographs tendered by Mr.Goodrick, it is apparent that: (

i) the fence was still standing at the time of the trespass only because of the buttresses installed by Mr.Walker’s employees; and (ii) even with those supports, it had only a few years of useful life left in it. For that reason, it would bepatently unreasonable to award damages equal to the full replacement cost. [18] I do not think that this is an appropriate case in which to use the conventional 10% allowance. The fence in question was 15years old, and in very poor repair. Because of its structural deficiencies, Mr. Rowe would have been obliged to replace it within a year ortwo in any event.

In that circumstance, I think that the appropriate deduction for “betterment” is 80%, and that an appropriate award ofdamages under this head is $3,546.80. [19] Mr. Walker points out that Mr. Goodrick painted only about 200 feet of the fence, and objects to paying for the entirereplacement on that ground. I do not think that it would be reasonable to expect Mr. Rowe to replace only part of the fence - the result ofa partial replacement would have been a truly ugly structure. [20] Mr. Rowe is also entitled to general damages. The authorities pertinent to the range of general damages are summarized in

Fitzpatrick v. Orwin 2012 ONSC 3492 , 2012 OJ No. 2731 and in Drager v. Lojstrup [2016] BCJ 1672; 2016 BCSC 1477; 89 BCLR (5th) 399; 70 RPR (5th) 240. Having regard to those authorities, and to the relatively minor impacts of the trespass in this case, Iassess general damages at $1,500. [21] Punitive damages “… should be resorted to only in ‘exceptional cases and with restraint’ …": Bowen Contracting Ltd. v. B.C. Log Spill Recovery Co-Operative Association [2009] BCJ No. 2100; 2009 BCCA 357; 2009 BCCA 457 , 313 DLR (4th) 498; 99 BCLR (4th) 59; 69 CCLT (3d) 171 at paragraph 23.

At paragraph 27, Justice Newbury said that: … it is useful to consider whether the misconduct was planned and deliberate, the intentions and motives of the defendant, whether themisconduct persisted over a long period of time, whether the defendant concealed or tried to cover up its misconduct, whether thedefendant was aware that what he or she was doing was wrong and whether he or she profited from it, and whether the interest violatedby the defendant was known to be "deeply personal to the plaintiff" or was "irreplaceable". [22] In this case, Mr.

Walker was quite surprised when I told him that he had no right to paint Mr. Rowe’s fence. The intrusion onMr. Rowe’s property was brief and unconcealed. Mr. Walker did not profit from it. The actual harm done was minimal because thefence had reached the end of its useful life in any event. I do not consider this to be an appropriate case for punitive damages. [23] The principles governing penalty awards under Rue 20(5) were stated by His Honour Judge Woods in Roome v.

Rajput 2013BCPC 231; [2013] BCJ No.2017 @ paragraph 62: In those cases where penalties have been awarded, reference is often made to shocking or reprehensible conduct on the part of the losingparty, or to oblique and improper motives having been a factor in the losing party's persistence in prosecuting a manifestly non-maintainable claim or asserting a plainly non-meritorious defence …. I would not describe Mr. Walker’s conduct of the defence in this case in such terms. Until I explained the law of trespass to him, he didnot understand that Mr. Goodrick had committed a trespass at his direction.

As soon as I explained that to him, he tendered an admissionof liability. He maintained his defence on the issue of quantum, as he was entitled to do, and has achieved a significant measure ofsuccess on that issue. I conclude that no penalty should be ordered. Disposition [24] Mr. Rowe will have judgment for $5,046.80, plus court order interest at the Registrar’s rate from June 1, 2014 to the date of thisjudgment and his filing fees and costs of service. A Footnote [25] I have applied, to the best of my ability, the principles stated in Fudge v.

Strata Plan NW2636 and the authorities thereinreferred to, as I am bound to do. I respectfully suggest that they deserve reconsideration by an appellate court when the issue nextarises. The following seem to me to be the basic principles: a. The measure of damages in tort is a sum of money sufficient to put the injured party in the position she would have occupied ifthe tort had not been committed (in so far as money can achieve that objective). b. The injured party carries the onus of proving the quantum of her loss. In this case, the loss suffered by Mr.

Rowe was the need to replace his fence a little earlier than he would otherwise have done. So, themeasure of his loss is the incremental cost which he incurred by replacing the fence in 2015, rather than (say) 2017 or 2018. At theinterest rates then prevailing, Mr. Rowe’s rate of return on invested capital and his cost of borrowing would each have been less than 5%annually. It seems to me that the correct measure of his loss would be $17,734 x 5% x 3 years = $2,660.10, and that a calculation of thatkind would provide a more certain measure of damages in such cases than the qualitative concept of “betterment”.

October 11, 2018 _________________________ T. Gouge, PCJ