Wallace v. Joughin Date:, 2014 BCPC 73

Citation: Wallace v. Joughin Date: 20140404 2014 BCPC 0073 File No: C64998 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BARBARA J. WALLACE CLAIMANT AND: CATHERINE CLARA JOUGHIN DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Claimant: Dylan Kozlick Counsel for the Defendant: Izabella P. Filip Place of Hearing: Nanaimo , B.C.

Date of Hearing: January 4, February 13, April 2, 9 and 10, 2013 Date of Judgment: April 4, 2014 Introduction [ 1 ] The winds of discord have since 2004 swept through a bucolic, semi-rural neighbourhood south of Nanaimo, British Columbia in the community of Cedar by the Sea, being part of the Nanaimo Regional District. At its vortex is a row of 37 tall fir trees running parallel to the boundary and planted between the properties owned by the Claimant and the Defendant. These trees form a physical and visual barrier between the properties.

This long standing dispute has resulted in several complaints made to and the attendance of the RCMP. [ 2 ] In this action, both parties allege wrong doing on the part of the other. A multitude of claims and counterclaims including allegations of breach of contract, trespass, and nuisance bring the parties before the court and have resulted in a five day trial. The parties seek a variety of relief against each other including specific performance, compensatory and aggravated damages, and restraining orders.

Background and the Uncontroversial Facts [ 3 ] The Parties reside in a subdivision that features a water view looking to the east. As would be expected, this semi-rural area is distinguished by the existence of a number of evergreen trees and deciduous trees on many of the subdivision lots and also a heavy growth on what appears to be acreages lying to the west of the subdivision. [ 4 ] There are no municipal bylaws that regulate or control the height of trees in this area.

From the photographic evidence, the subdivision lots comprising the neighbourhood including those of the parties are entirely landscaped. [ 5 ] Barbara J. Wallace (“the Claimant”) is a middle age registered nurse, now retired due to health reasons. Since April 2004 she has owned and resided at 1436 Leask Road (the “Wallace Property”). She has occupied the Wallace Property with two separate common law spouses during the times material to these actions. They include Gene Windsor from 2004 to approximately 2010 and Craig Harris from 2011 to sometime thereafter. Neither Mr. Windsor nor Mr.

Harris testified at the trial. [ 6 ] Catherine Clara Joughin (“the Defendant”) is an 80 year old retired teacher and widow. She has been an owner of and resided next door at 1444 Leask Road since 1990 (the “Joughin Property”). [ 7 ] The Joughin Property lies to the south of the Wallace Property. Both of these properties (collectively the “Properties”) share a boundary that runs from the west to the east.

Both lots have an ocean view looking out to the east side of their respective lots. [ 8 ] There is a row of approximately 35 fir trees running parallel along the Defendant’s side of the property line between the Wallace Property and the Joughin Property (collectively the “Fir Trees”). The Fir Trees are presently about 40 to 50 feet tall having originally been planted around 1985 by the previous owners of the Joughin Property.

In 1990, those previous owners sold to the Defendant and her now deceased husband, who died in 2001. [ 9 ] It is common ground that the Fir Trees are located on the Defendant’s side of the boundary between the Properties, that is on the Joughin Property. However, some of the branches of the Fir Trees hang over and therefore encroach into the Claimant’s airspace, that is above the Wallace Property. [ 10 ] There was a large, very mature Arbutus tree located on the Wallace Property (the “Arbutus Tree”) that partially overhung the Joughin Property, until September of 2004.

At that time the Arbutus Tree was entirely removed by a professional tree service at the direction of the Claimant. As is their nature, prior to its removal, the Arbutus Tree continuously shed its bark, leaves and seeds onto to both the Joughin Property and the Wallace Property. [ 11 ] The Fir Trees and the Arbutus Tree had been a historical source of significant disagreement between the Defendant and her husband, on one hand and the prior owners of the Wallace Property, a Mr. and Mrs. Pepper, on the other. [ 12 ] Starting around 1992 or 1993 up to a point that can be fixed as prior to the death of Mr.

Joughin, the Peppers sought to have the Fir Trees topped or pruned but the Joughins, who were even prepared to remove all of the Fir Trees, were insistent that the Arbutus Tree be removed. This condition was rejected by the Peppers. At that point the Fir Trees were only about 12 feet high. [ 13 ] Therefore the Peppers and the Joughins had reached a stalemate over the Fir Trees and the Arbutus Trees.

The Joughins wanted to retain the Fir Trees as a barrier against the detritus generated by the Arbutus Tree landing on the Joughin Property and the roof of its residence. [ 14 ] The Claimant was aware from the Peppers about the negotiations and the unaccepted offers exchanged between the Peppers and the Joughins. She was also aware that this disagreement remained unresolved by the time the Claimant became the owner of the Wallace Property.

At the time of the Claimant’s purchase of the Wallace Property, the Fir Trees were approximately 30 to 35 feet high. [ 15 ] At the direction of and with the assistance of the Claimant, Gene Windsor, removed seven of the Fir Trees from the Joughin Property. Four of the Fir Trees were removed in November 2004, and three more were removed on December 19, 2004.

[ 16 ] The Defendant confronted the Claimant and Mr.

Windsor about all of the tree removal that had occurred up to and including the December 19, 2004 cutting event. [ 17 ] In early 2005, the Claimant planted a Cypress hedge along her side of the property line on the Wallace Property adjacent to where seven of the Fir Trees had been cut on the Joughin Property. [ 18 ] In September of 2005, without objection from the Defendant, the Claimant removed branches from some of the Fir Trees which were encroaching over the boundary into the Wallace Property airspace and which purportedly were damaging the Claimant’s wire fence that she had installed on the Wallace Property. [ 19 ] On or about February 26, 2006, with the assistance of the Claimant, Gene Windsor topped seven more of the Fir Trees on the Joughin Property to the level approximating the roofline of the two houses. [ 20 ] The Defendant immediately called the RCMP to attend to stop the Claimant from cutting or topping any more of the Fir Trees.

Constable Bulman attended on the scene, utilized some shuttle diplomacy between the parties, and facilitated a verbal arrangement between the parties, whereby the Defendant would instruct an arborist about removing/cutting some of the Fir Trees at the Claimant’s expense. [ 21 ] Troy Soderstrom, an arborist, subsequently attempted to get instructions from the Defendant but was unsuccessful in doing so when the Defendant indicated to Mr.

Soderstrom that she would not provide the instructions at that time. [ 22 ] From February 2006 until December of 2011, the Claimant and her common law spouses frequently cut lower branches of the Fir Trees, that were encroaching over the Wallace Property, without consulting with an arborist or other person knowledgeable about the removal of the branches or pruning of the Fir Trees. In particular no such knowledgeable person was consulted regarding a safe amount of branch removal in order not to endanger the Fir Trees. [ 23 ] The Claimant did not contact the Defendant about the branch removal.

The Claimant was of the view that these lower branches were dead and that the Fir Trees were pretty hardy. By that I understand her to believe that her branch removal was not a danger to the Fir Trees. Based upon the whole of the evidence, including the observations made by both expert witnesses and photographic evidence, over the years most of the lower living limbs on Wallace Property side of the Fir Trees have been cut back or removed by or at the direction of the Claimant and with the help of her common law spouses.

The limbs on the Joughin Property side have not been cut or trimmed. [ 24 ] In December 2011, the Claimant directed her then common law spouse, Craig Harris to cut the parts of the various Fir Tree upper branches that were overhanging the Wallace Property. To do so, he leaned a ladder against the Fir Tree trunks on the Joughin Property. After he had removed a number of branches he left them in the front of the Joughin Property. The Defendant was left to remove those branches at her own expense. [ 25 ] There is evidence that B.C. Hydro and Power Authority (“B.C.

Hydro”) had apparently exercised their statutory powers to vigorously top and re-top approximately 4 of the Fir Trees located near the road, to the west of the Properties, to maintain them at a height of approximately 10 feet and to prevent their interference with the utility lines. The Experts [ 26 ] In preparation for the trial and specifically in the late fall of 2012, each of the parties retained the services of an experienced arborist to make a site visit to view the Fir Trees and the Properties of their respective clients.

The purpose was to provide their respective clients with an expert report on matters relating to the Fir Tree, and to attend at trial to offer expert evidence on behalf of their respective clients. Unfortunately, neither of the experts had open access to the property of the opposing party. Therefore a substantial part of their respective opinions were based upon observations rather than from conducting additional tests that they could have conducted with open access.

Those test may have included root examinations, soil sampling, a sunlight penetration assessment and other more in depth assessments. [ 27 ] The Claimant engaged the services of Verna Mumby who is the principal of Mumby’s Arboriculture Consulting being a division of Mumby’s Tree Services Ltd. She prepared a report dated November 30, 2012 (the “Mumby Report”). The Defendant engaged the services Stephen Lush, the principal of Arborwest Consulting. He prepared a report dated November 24, 2012 (the “Lush Report”). [ 28 ] At trial, I accepted Ms.

Mumby’s qualifications as an expert in arboriculture including assessment and valuation of trees. I also accepted Mr. Lush as an expert in hazardous trees, including as they relate to utility lines. I also accepted his expertise as a trained and highly experienced arborist and as qualified to give expert evidence on the characteristics of various species of trees in the context of residential, commercial and utility environments.

The Pleadings in the Claim, the Counterclaim and the Replies Claimant’s Pleadings [ 29 ] The Claimant personally prepared and filed her Notice of Claim on December 22, 2011 asserting claims arising in a time period from “2004 to Present” framed as follows: “This is an action for the removal of 37 trees separating our properties as agreed to (ie verbal contract) on 4 occasions, one of which was before an RCMP officer.

This spite hedge completely obscures sunlight onto my property for 6 months of the year and is a continuing private nuisance and safety concern causing damage to my property and significant emotional pain.”

[ 30 ] The Claimant’s solicitors were apparently retained after the Defendant was successful in obtaining an order to permit her to file a Counterclaim.

The Claimant subsequently filed a Reply to Counterclaim on November 6, 2012 denying the allegations contained in the Defendant’s Counterclaim, re-asserting the various alleged verbal agreements relating to the Fir Trees and particularizing the alleged damage and risks of further damage to the Wallace Property caused by the Fir Trees and asserting the Claimant’s right to take steps to prevent the loss of use and enjoyment of the Wallace Property or to prevent damage to the Wallace Property. Defendant’s Pleadings [ 31 ] The Defendant personally prepared and filed her Reply without a counterclaim on March 22, 2012.

In it she disputed the existence of any verbal contracts for the tree removal or cutting undertaken by the Claimant and her cohabitant partner, disputed the claim for removal of the 37 trees that existed prior to the Claimant’s lot purchase, denied the assertion that the trees completely obscure sunlight for six months of the year given weather, environmental conditions and geographic profile of the Claimant's lot, denied damage to the Claimant's property and asserted "ongoing harassment and bullying against myself, a senior widow living alone" by the Claimant and her two cohabitant partners. [ 32 ] On October 16, 2012 I granted the Defendant an order to permit her to amend her Reply to include a Counterclaim against the Claimant for damages arising out of alleged trespasses that occurred when the Claimant cut trees located on the Defendant’s property.

Although the bringing of such an action for trespass may have been statute barred in the ordinary course, I determined that the Defendant could rely upon section 4 (1) of the Limitation Act RSBC 1996 c. 266 which was then in force. [ 33 ] On October 30, 2012 the Defendant’s solicitor filed a Counterclaim on her behalf alleging trespasses by the Claimant, by herself or by her servants or agents, on the Joughin Property and the wrongful cutting of seven Douglas Fir trees on December 19, 2004, eight Douglas fir trees on February 26, 2006 and the wrongful cutting of overhanging Douglas fir branches on December 20, 2011.

It is alleged that these cut branches were then discarded on the boulevard in front of the Joughin Property. [ 34 ] The Defendant also claimed trespass by the Claimant in connection with the entering upon the Joughin Property and the discarding of debris collected from the Wallace Property or from the Joughin Property on each of May 17, 2012 and June 11, 2012 and since March of 2012 the continuation of the discarding of rocks and debris collected from the Wallace Property onto the Joughin Property, for which damages are particularized and claimed. [ 35 ] The Defendant’s Counter Claim also alleges wrongful, intentional and serious hostile acts of harassment and intimidation against the Defendant by the Claimant, personally or by her servants or agents, that has continued since about September 2004.

It is alleged that this has caused the Defendant great discomfort, loss of enjoyment of her property and a loss of security. [ 36 ] The Defendant particularizes her claims for various compensatory damages and charges and expenses arising out of the proceedings, punitive damages for the alleged trespass and harassment and the following relief: “Permanent order restraining the Claimant, her servants and/ or agents from entering on to the lands and premises on [sic] the Defendant and from contacting or communicating with the Defendant, directly or indirectly." Issues Raised in Written Submissions [ 37 ] Following the conclusion of the trial evidence, the parties were directed to provide written submissions.

In the course of doing so, several more issues have been raised by the parties including:

a) the sufficiency of each other's pleadings;

b) the admissibility or the weight to be given to expert evidence called during the trial,

c) the entitlement to recover the costs of the expert reports;

d) the application of the rule in Browne v. Dunn and the alleged failure of the Defendant to put the critique of the Defendant’s expert evidence to the Claimant's expert witness;

e) the Claimant's reliance upon prior consistent statements based on allegations of recent fabrication;

f) limitation arguments relating to the various claims;

g) the applicability of section 59 (3) of the Law and Equity Act as it relates to the alleged verbal agreements;

h) the applicability of the Apology Act , S. B. C. 2006, ch.19;

i) laches as a defense to a claim for specific performance;

j) failure to mitigate damages;

k) lack of jurisdiction for the Provincial Court to grant either a restraining order or injunctive relief sought by the Defendant. Sufficiency of the Pleadings [ 38 ] The sufficiency of pleadings has been raised as an issue, as noted above. Actions brought under the Small Claims Act R.S.B.C.

1996 c. 430, are intended to provide lay litigants with a more informal and more accessible civil dispute resolution process than may beavailable in the Supreme Court of British Columbia. [39] Accordingly, the sufficiency of pleadings are to be reviewed in a manner consistent with the purpose of the Small Claims Act setout in s.2(1) namely: The purpose of this Act and the rules is to allow people who bring claims to the Provincial Court to have them resolved and to haveenforcement proceedings concluded in a just, speedy, inexpensive and simple manner. [40] The case authorities recognize that it is not intended that there be the same level of “precision or procedural exactitudedemanded in the Supreme Court.” Therefore pleadings prepared by lay litigants are sometimes characterized as at best “inelegant” andsometimes “seriously deficient”.

But given that this “forum remains a court of law” the informal process is still “constrained” by thenecessity to “apply the substantive law formally”. [41] As an overriding principle, Small Claims pleadings must therefore “place the other party on notice generally of the claim ordefence they would need to meet” at trial. Thus the settled approach on the basis of fairness and justice is to dismiss applications orclaims or to not try an issue if such issues have not been properly raised in the pleadings. [see: Cappos v. Zurich Canada, [1996] B.C.J.No. 2552 (Q.L.) (British Columbia Prov.

Ct.) at para 14-16, followed in Priority Building Services Ltd. v. Ali, (BCSC).] [42] In Priority Building Services, Madam Justice Stromberg-Stein summarizes the approach to considering the sufficiency ofpleadings issue as follows: 17 In this case, Mr. Ali was an unrepresented lay litigant, who obviously drafted his own pleadings. Proceedings in Small ClaimsCourt should be conducted as informally as possible to permit lay litigants to have access to the Courts, and so that matters may beconcluded in a "just, speedy, inexpensive and simple manner".

However, a party is entitled to have proper notice of the claims beingmade against it. In the interests of fairness and justice, a party is entitled to know the case to be met. It is inappropriate, and perhapsunjust and unfair, to try an issue that has not been properly raised in the pleadings since a party will not have proper notice of the issueand will be unprepared and disadvantaged at trial.

Unrepresented parties in a Small Claims action are given some leeway to rely on"inelegant" pleadings so long as the opposite party is put on notice of the issues and of the necessity to adduce relevant evidence at trial. [43] In the present case, as noted above, the original pleadings were drafted by the lay litigants, being the parties themselves. Thusto an extent the original pleadings suffer from the expected inelegance.

However, each party’s respective legal counsel had theopportunity to supplement, identify or clarify the issues by way of amendments to the pleadings that they each undertook on behalf oftheir respective clients.

There was also an opportunity to formally communicate between each other prior to the trial about any of therelevant issues that would be advanced at trial. [44] I will presume the pleadings have sufficiently notified the other party of the relevant issues and I will be consider all issues to beproperly before the court and also presume that the other party has not been surprised in the raising of an issue, unless I otherwisespecifically so state in these reasons,.

The Disputed Alleged Verbal Agreements Relating to the Fir Trees and the Arbutus Tree Theme of the Evidence of the Claimant [45] The theme of the evidence of the Claimant is that she was attempting to deal with the historical disputes between neighbourscentred around the Arbutus Tree and the Fir Trees by addressing the parties’ mutual concerns and by getting the Defendant to agree on acourse of action. [46] It is asserted that a series of separate verbal agreements were reached between the Claimant and the Defendant.

They arealleged to form the basis for the Claimant’s right to cut or remove the Fir Trees and to enter upon the Joughin Property. A further themeis that every time an agreement was reached between the parties, the Claimant thereafter acted upon the agreement. But the Claimantwas then met with an objection from the Defendant who denied the existence of any of the agreements and in particular denied that anypermission had been granted to deal with the Fir Trees in accordance with any of the alleged agreements or at all.

In other words theDefendant presented a general obstructionist and uncooperative approach towards implementing any of the agreements. Theme of the Evidence of the Defendant [47] Throughout her testimony, the Defendant rejects the notion that she ever accepted or became bound by the various allegedagreements asserted and relied upon by the Claimant. She admits that verbal exchanges took place between the Defendant and theClaimant at various times.

However she paints a picture of the Claimant as being very demanding of and aggressive towards theDefendant, all with a single purpose aimed at getting her own way as it related to the Fir Trees. The Defendant holds fast to her positionthat even though the Fir Trees were the topic of various discussions, she never entered into any agreements with respect to the removal orthe topping of the Fir Trees. Rather what took place was a continuing presentation by the Claimant of her suggestions, demands or anindication of her intended course of action, none of which was agreed to by the Defendant.

The August 2004 Alleged Agreement [48] The Claimant testified that the Claimant and the Defendant reached a verbal agreement about the Fir Trees and the ArbutusTree during their first impromptu introduction and meeting. Their discussion that took place across the property boundary between theWallace Property and the Joughin Property in early August 2004 resulted in an agreement (the “August 2004 Alleged Agreement").

[ 49 ] The Claimant’s evidence is that notwithstanding her love of arbutus trees generally and in particular the Arbutus Tree in question, she offered to remove the contentious Arbutus Tree if she would be permitted by the Defendant to allow the Claimant to cut the Fir Trees. [ 50 ] The Claimant further testified that the Defendant told her that the Claimant could “ do whatever she wanted to the fir hedge once the Arbutus trees is removed”. [ 51 ] According to the Claimant's evidence, as part of the August 2004 Alleged Agreement, the Defendant invited the Claimant to take all of the Fir Trees out. [ 52 ] The claimant testified as follows about these discussions: "I felt like we had an agreement and that we had reached a consensus on what to do about her hedge and my Arbutus tree and it felt like it was an amicable agreement between neighbors.

One neighbor promises to do one thing in exchange for another. ” [ 53 ] The Claimant says that thereafter she had her very much prized Arbutus Tree professionally removed on September 9, 2004. [ 54 ] As part of the Claimant’s case, the Claimant called two of her neighbours. Janice Gillard is a 33 year resident of the Leask Road neighborhood where the Claimant and the Defendant reside. Ms. Gillard is familiar with both the Claimant and the Defendant. Ms. Gillard resides immediately north of the Wallace Property.

As a result of her lengthy tenure in the neighborhood she was familiar with the long standing dispute about the Arbutus Tree and the Fir Trees and the historical disagreement between the Peppers and the Joughins. [ 55 ] Ms. Gillard testified to the effect that during a casual conversation with the Claimant in the spring or summer of 2004, but definitely prior to the removal of the Arbutus Tree, the Claimant told her that the Claimant had reached an agreement with the Defendant to remove the Arbutus Tree “in return for having the other trees trimmed” [see Feb. 13, 2013 Transcript at page 58 lines 10 and 11].

In cross examination she indicated that the intended work on the Fir Trees originally was to prune them. [ 56 ] Based on her knowledge of the historical dispute about the Arbutus Trees and the Fir Trees, Ms. Gillard also testified that she told the Claimant that she hoped the Claimant had in writing what the Claimant had reported as being the agreement with the Defendant, that is to permit the Claimant to do what she wanted with the Fir Trees. [ 57 ] The Claimant did not follow that advice about obtaining the agreement in writing. The Claimant never told Ms. Gillard that she prized the Arbutus Tree. Ms.

Gillard was never present for any of the discussions between the Claimant and the Defendant. Therefore her only knowledge about any agreement is based upon what the Claimant told her. [ 58 ] Stewart Hutton resides below the Wallace Property and the Joughin Property on property which is therefore closer towards the ocean.

He was familiar with the Arbutus and the Fir Trees and knows the Claimant through their art group. [ 59 ] Prior to the removal of the Arbutus Tree in or around the summer of 2004, during an art group meeting at the Claimant’s house, and in response to his compliments about the Arbutus Tree, which he very much admired, the Claimant told him that she had agreed with the Defendant remove the Arbutus Tree in exchange, for what Mr. Hutton understood from the Claimant, to be an agreement with the Defendant to remove some of the hedge trees towards the ocean view in the east.

These blocked some sun and partially obscured the ocean view for the Wallace Property. [ 60 ] Notwithstanding Mr. Hutton’s specific compliment about the Arbutus Tree, the Claimant never told Mr. Hutton that she too prized the Arbutus Tree. Again Mr.

Hutton was not present for any discussions between the Claimant and the Defendant and his knowledge about any agreements is substantially based upon the self-reporting of the Claimant. [ 61 ] Thereafter followed a phone voice mail message to the Defendant to inform her of the Claimant’s intention to proceed with cutting the Fir Trees pursuant to the August 2004 Alleged Agreement and a return call back from the Defendant acknowledging this information and authorizing the Claimant to proceed.

The Claimant further testified that she and Gene Windsor then cut four of the Fir trees on the most easterly portion of the boundary towards the water view in mid-November of 2004. [ 62 ] The Claimant and Mr. Windsor continued to cut an additional three Fir Trees on the easterly portion of the boundary on December 19, 2004. During this December 19, 2004 tree cutting event, the Defendant confronted the Claimant and Mr. Windsor and told them to stop cutting the trees and the Defendant further denied the existence of any agreement to permit any cutting to occur. [ 63 ] The Defendant’s version differs considerably.

She agrees that she met the Claimant for the first time in the summer of 2004. However, she says that the actual discussion concerning the Fir Trees took place sometime after the first meeting. The Defendant testifies that the Claimant raised the question of topping the Fir Trees.

The Defendant says that she responded by saying "yes I would consider topping them," but then goes on to testify that such discussions did not go any farther. [ 64 ] The Defendant further testifies that there were no discussions or interaction between the Claimant and the Defendant about the removal of the Arbutus Tree but rather the Claimant told the Defendant that she was going to cut it down and complained to the Defendant that the Claimant disliked the Arbutus Tree because of the fact that it was so messy and filthy. [ 65 ] The Claimant says that there was no link made nor discussions between the parties about the topping of the Fir Trees and the removal of the Arbutus Tree.

In fact the Defendant says that the Claimant approached her to pay half of the cost of the removal of the Arbutus Tree, but that the Defendant rejected the suggestion. [ 66 ] The Defendant does go so far as to admit she was agreeable to the notion of topping all the Fir Trees and to “looking into” the

Fir Tree topping but says there were no necessary discussions about any of the required details that would go into an agreement including the timing of necessary discussions with an arborist. [ 67 ] The Defendant does concede that there was a further roadside discussion at the beginning of September of 2004 between herself and the Claimant in which the Claimant approached the Defendant about the Claimant’s partner taking a ladder to go up the Fir Trees to top them. Since the Defendant was in the company of a friend, it was not convenient for the Defendant to discuss this suggestion and she told the Claimant so.

Therefore, according to the Defendant’s evidence, no details were discussed nor agreed to at that time. The Defendant testified that she assumed that the Claimant would contact her to discuss various issues concerning topping of the Fir Trees.

The Defendant says that did not ever occur. [ 68 ] Therefore, the Defendant in her testimony rejects the notion that any agreement was reached between herself and the Claimant allowing the topping or removal of any of the Fir Trees and in particular denies that the August 2004 Alleged Agreement was ever made. [ 69 ] She specifically denies that she ever gave any indication that the Claimant was free to do what she wanted with the Fir Trees if the Arbutus Tree was removed. She also says that she would be “an addlehead” to make such a statement and by inference to agree to such a term.

Nothing went beyond a general discussion about topping the Fir Trees, and no specifics were addressed and no terms agreed upon. Although topping was discussed there were no discussions about the actual removal of any of the Fir Trees. [ 70 ] The Defendant denies that she was aware that the Claimant and her partner Mr. Windsor started removing some of the Fir trees in November of 2004. She indicates that she was away from the Joughin Property engaged in her numerous activities during that timeframe.

She denies ever receiving a voice message from the Claimant and she further denies that she returned the call authorizing the Claimant to start removing or topping the Fir Trees. [ 71 ] The Defendant testifies that she was therefore very much taken aback when on December 19, 2004 her visiting brother, Robert Joughin, observed through her window, Mr. Windsor using a chainsaw to cut down some of the Fir Trees on the east end of the property boundary to a height of about 3 1/2 to 4 1/2 feet. [ 72 ] She immediately confronted the Claimant and Mr.

Windsor and instructed them to stop, telling them that they did not have any permission to cut the Fir Trees. The Claimant asserted to the Defendant that she had permission from the Defendant. The Defendant describes that a heightened confrontation then ensued when Mr. Windsor became involved and was rude and aggressive to the Defendant. [ 73 ] Thereafter followed a quarrel between the Claimant and Mr. Windsor as to the extent of the cutting and the height to which the Fir Trees were to be cut. Mr.

Windsor wanted to cut them to a 10 foot height and the Claimant wanted some or all of the Fir Trees that were subject to the cutting to be entirely removed. [ 74 ] The Defendant did not report the December 17, 2004 cutting incident to the police nor did seek compensation from the Claimant for the removal of 7 of the Fir Trees. [ 75 ] Rather she reported the matter to her insurer and apparently received a loss payment from them of approximately $6,000.00. and was subject to a $500.00 deductible amount. She did however lose her claims free status and ended up paying an increased annual premium for her insurance.

The insurer apparently did not pursue a subrogated claim against the Claimant The December 2004 Alleged Agreement [ 76 ] The Claimant testifies that during this December 19, 2004 confrontation over the August 2004 Alleged Agreement, further discussions ensued between the Claimant and the Defendant leading to a further agreement (the "December 2004 Alleged Agreement"). It permitted the Claimant to cut an additional four of the Fir trees in exchange for the Claimant planting a Cyprus hedge on the Wallace Property, adjacent to where the Fir Trees had already been removed on the Joughin Property.

The Claimant did not proceed with the cutting of four additional Fir Trees but did proceed with the planting of the Cyprus hedge in February of 2005. [ 77 ] The Defendant denies that she spoke to the Complainant or agreed to any of the terms of the December 2004 Alleged Agreement, and specifically did not agree to the cutting of any more of the Fir Trees on the condition that the Claimant would plant replacement Cypress trees on the Wallace Property or otherwise. [ 78 ] In fact, the Defendant delivered a hand written notice to the Claimant’s residence on December 24, 2004 stating that seven trees had been cut without permission and that there was to be no further tree cutting allowed.

That notice makes no mention of any of the terms of the December 2004 Alleged Agreement. [ 79 ] Neither does the responding hand written note dated December 24, 2004 from the Claimant to the Defendant make reference to any terms of that agreement but does opens with: “I‘m sorry that you feel the trees were cut down without your permission” [ 80 ] This responding note then seeks to remind the Defendant about the following statement attributed to her: “I need to remind you that your exact words were ‘you can do whatever you want’ to the hedge; once the Arbutus tree is removed.” and then significantly goes onto further to state:

“I spent over $1000.00 (dollars) on removal of the arbutus & hoped that it would help us develop a more neighborly relationship than you had with Tom & Betty Pepper. An easy to maintain evergreen hedge would be more neighborly & I’ve offered to put one in. Lets (sic) talk.” September 2005 Alleged Agreement [ 81 ] The Claimant testified that in September 2005, the Claimant approached the Defendant regarding the removal of the additional four Fir trees in accordance with the Alleged December 2004 Alleged Agreement.

The Claimant says that the Defendant rejected that request and then proposed a different agreement to replace the Alleged December 2004 Agreement whereby the Defendant would allow the Claimant to cut the Fir Trees to the height of the Defendant’s roofline and to remove branches from the Fir Trees that were pushing into the Claimant's wire fence (the “September 2005 Alleged Agreement”). [ 82 ] The Defendant denies the existence of the September 2005 Alleged Agreement.

She says that from the December 19, 2004 tree cutting incident and throughout 2005, the relationship between the Claimant and the Defendant was "frosty and distressful". [ 83 ] The Defendant testifies that there were several incidents when the Claimant told the Defendant that she wanted various trees to be removed. In one of those discussions, likely in the fall of 2005, the Defendant says that the Claimant spoke about cutting branches from the Fir Trees that were pushing the Claimant’s fence. The Claimant demanded to remove four more of the Fir Trees.

The Defendant told the Claimant in "no uncertain terms" that the Fir Trees were not to be removed. [ 84 ] In November 2005, according to the Defendant’s testimony, the Claimant arrived unannounced in the late afternoon at the Defendant’s residence on Joughin Property in the presence of a person named Carl Woods, described as a tree trimmer. The Claimant told the Defendant that she intended to have Mr. Woods proceed with the cutting of the Fir Trees. The Defendant told the Claimant in the presence of Mr. Woods that there was to be no tree cutting. Mr.

Woods "backed away" from the situation and the Claimant then became rude and abusive to the Defendant. The Defendant denies any agreement was reached about further removal or topping of the Fir Trees in 2005 and in particular denies the September 2005 Alleged Agreement was ever made. [ 85 ] The Claimant followed up with a letter delivered in person, with a small rose, to the Defendant dated January 10, 2006. That letter opens with the following paragraph: "I would like to express my sincere apologies to you for the misunderstandings surrounding your hedge.

I would like this to become a win/win situation for both of us.

I’m seeking a mutually beneficial solution that will be better for us than keeping silent." [ 86 ] The January 10, 2006 letter goes on to express a recognition of the Defendant’s underlying concerns for privacy and aesthetics and the Claimant's underlying concerns for safety, preventing damage to her property, getting more sunlight in the winter months and aesthetics. [ 87 ] A number of suggestions were outlined including lowering the height of the hedge by a third, spiral pruning the tops of the trees to retard growth, lowering the height of the hedge by 10 feet and removing some the trees near the Claimant’s studio to prevent liability from arising in case of trees or branches falling.

Enclosed also was an Internet

article from the Washington State Department of natural resources concerning tree thinning and its benefits. This letter makes no mention of any of the alleged agreements between the Claimant and the Defendant. The Defendant did not respond to this letter. [ 88 ] The January 10, 2006 letter was followed up by a further letter from the Claimant to the Defendant dated February 21, 2006.

It provides formal notice of the possibility of future damage to the Claimant's property resulting from the Fir Trees and expresses concern about the forms of detritus emanating from the Fir Trees and the resulting adverse impact on the Wallace Property and her residence. [ 89 ] The February 21, 2006 letter states that the Claimant seeks the Defendant’s permission to lower the height of the hedge by at least one third and to remove 4 or 5 of the Fir Trees beside her studio. She offers to replace the trees removed with a cypress hedge on her property, "maintaining and ensuring your privacy".

No mention is made of any agreements between the parties. [ 90 ] The Defendant testified that she considered these letters to be part of an orchestrated plan of harassment rendered upon her by the Claimant which included a number of phone calls made by the Claimant to the Defendant outlining the Claimant's “wants” with respect to the Fir Trees.

The February 2006 Alleged Agreement [ 91 ] According to the Claimant’s evidence, although the Claimant proceeded quickly with the removal of the branches pushing into her fence in accordance with the September 2005 Alleged Agreement, it was not until February 26 2006 that the Claimant and Mr. Windsor proceeded with the topping of the fir trees to the roofline height pursuant to the September 2005 Alleged Agreement. [ 92 ] A total of seven of the Fir Trees had been topped on the westerly boundary near to Leask Road at which point the RCMP arrived in answer to the call placed by the Defendant.

The Defendant stated that no permission to top to trees had been granted to the Claimant. [ 93 ] The Defendant says that on February 26, 2006, while she was ill in bed, she was notified by her neighbour Brian Kabaluk that the Claimant and Gene Windsor were in the process of topping 7 or so of the Fir Trees from the front of the Joughin residence up to the road by an amount ranging from 1/3 to 1/2 the height of these Fir Trees. [ 94 ] The Defendant confronted the Claimant and Mr. Windsor demanding that they stop the cutting and saying they did not have any

permission to do so. The Defendant and Mr. Windsor failed to stop. The Defendant called the police resulting in the attendance of Constable Bulman and the ensuing shuttle diplomacy. [ 95 ] Through the mediation efforts of Constable Bulman, who acted as a go between while the Claimant and the Defendant remained in their respective residences, the Claimant asserts that it was agreed that the Defendant would provide instructions to an arborist by March 2, 2006 for the topping of the Fir Trees. This would be done by the arborist at the expense of the Claimant (the “February 2006 Alleged Agreement").

Ultimately says the Claimant, the Defendant wrongly rescinded the February 2006 Alleged Agreement. [ 96 ] According to the Defendant’s evidence, Constable Bulman met initially with the Claimant and then met with the Defendant; he told the Defendant that the Claimant wanted to cut the Fir Trees down to about 10 feet.

The Defendant says she rejected that “ultimatum”. [ 97 ] Constable Bulman returned to the Claimant's residence for further discussions and then phoned the Defendant back to discuss cutting the Fir Trees to a 25 foot height, to which the Defendant testifies: "I gave an interim okay to it because I didn't know what my rights were so later that day I phoned Lawyer Referral." [ 98 ] In her testimony, the Defendant says there was not a “firm agreement” in place, she did not get prior legal advice (other than to later speak to Lawyer Referral to learn about her rights) and she felt pressured by the situation and the involvement of the police.

She concedes that she “sort of agreed” to the 25 foot height but that she was not aware of any other details of the February 2006 Alleged Agreement. [ 99 ] However, what is ultimately conceded by the Defendant in the Defendant’s submissions is as follows: "The Defendant concedes that on February 26, 2006 she agreed to a suggestion made by an RCMP officer that she would instruct an arborist with respect to trimming the Fir Trees.

The Defendant did not obtain legal advice prior to agreeing to the RCMP officer’s suggestion and she testified that based on her conversation with the officer, she felt she had no choice but to agree with his suggestion.

The Defendant, shortly thereafter sought legal advice from a Lawyer Referral with respect to this agreement and her rights of rescission." [ 100 ] The Defendant testified that she was unclear about the details of this arrangement facilitated by Constable Bulman. [ 101 ] It is also somewhat unclear how or if the Defendant notified the Claimant that she was exercising any of her rights of rescission. She did not do so directly. The Defendant does admit that she was contacted shortly thereafter by Troy Soderstrom, an arborist from Davey Tree service for instructions.

She told him he was putting the matter on hold in order to obtain legal advice. She never did seek that legal advice and never provided further instructions to Mr. Soderstrom. Analysis Regarding the Alleged Agreements The Burden of Proof [ 102 ] The burden of proof in a civil case rests with the Claimant to prove her case on a balance of probabilities. The Supreme Court of Canada in F.J.v. McDougall 2008 SCC 53 (CanLll, [2008] 3 S.C.R. 41 at para [49] states: “[I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred." [ 103 ] Therefore the Claimant must prove the existence of one or more of the Alleged Agreements on a balance of probabilities. Assessment of Credibility [ 104 ] An assessment of credibility will be essential in determining the outcome of this case. The only witnesses who were actually in attendance at any of the discussions purportedly giving rise to any of the Alleged Agreements were the parties themselves.

Robert Joughin was present at the time the Alleged December 2005 Agreement would have been discussed. He was unable to say whether or not those discussions actually took place but he was able to testify as to the heightened emotional level that was present at that time between the parties and Mr. Windsor. [ 105 ] Mr. Windsor, Mr. Harris and Constable Bulman were not called by either of the parties. [ 106 ] As the trier of fact, I am not required to accept or reject everything that a particular witness says.

I may decide to accept some of what a witness says and reject the rest or I may decide to accept or reject everything that a particular witness says. I need not reject evidence of a particular witness because of minor or innocent discrepancies.

Where there is conflicting evidence it is important that I look to see if the evidence of one witness is supported by the evidence of another witness or by other available evidence. [ 107 ] When I am assessing the credibility of these witnesses I must remind myself that some of these events date back almost a decade. [ 108 ] I must therefore be very cautious in accepting without question overly precise recollection of details of certain events and

relevant discussions alleged to have occurred, their precise times and the details of existing weather conditions when such events arealleged to have occurred. [109] In her submissions, the Claimant suggests that Claimant was able to make these types of recollections with this level of precisionand accordingly her credibility is much greater than the Defendant. [110] I reject the Claimant’s suggestion that the Defendant's memory of events should be treated as less reliable given her age and herrecent health issues.

In my view she demonstrated an appropriate ability to recall important events and details. [111] In assessing the credibility of the parties and the reliability of their evidence, it is important for me to determine what makessense on the whole of the evidence before me know that. The Use of Prior Consistent Statements Made by the Claimant [112] The Claimant submits that statements made by the Claimant to Ms. Gillard and Mr. Hutton about the August 2004 AllegedAgreement shortly after its formation should be admissible as prior consistent statements to refute an allegation of recent fabrication.

It issaid that has been “impliedly or expressly stated in [the Defendant’s] pleadings and evidence namely that the [Claimant] has fabricated orexaggerated the occurrence of the August 2004 [Alleged] Agreement”. [113] The Defendant’s counsel did not object to the admissibility of the evidence of the Claimant’s discussions with Ms Gillard andMr. Hutton provided by those two witnesses.

However, the Defendant denies that there is any allegation of recent fabrication of theAugust 2004 Alleged Agreement saying further that the Defendant does not deny that the discussions took place but “disagrees that anyagreement was reached at that time.” Accordingly, the Defendant says that it is unnecessary to consider the utility of the prior consistentstatements. [114] As noted in Sopinka Lederman & Bryant, The Law of Evidence in Canada [Third Edition]

(2009) LexisNexis (“SopinkaLederman”) there is a general exclusionary rule against the admission of self-serving evidence to support the credibility of a witnessunless his or her credibility has first been made an issue (see at paragraph 7.1, p.395): [115] “Recent fabrication” is generally raised in cross examination as a challenge to a witness’s account of some incident or set of factsas being a recent invention of that witness. Such a challenge presents a clear issue of whether at some previous time that witness aid orthought that which the witness has been saying at trial.

In that case the witness may support themselves by providing evidence of earlierstatements made by that witness to the same effect as the evidence presented at trial. [See Sopinka Lederman at paragraph 7.6, page 397citing Fox v.

General Medical Council, [1960] 3 All E.R. 225, at 230 (P.C.)] The prior consistent statement is therefore used by awitness to impact credibility in a positive way by refuting an improper motive to fabricate or lie in their evidence. [116] Recent fabrication is accepted as one of the limited permissible exceptions to permit a prior consistent statement, generally to beused to bolster credibility. However it is not permissible for that evidence to be used for its truth. [see Sopinka Lederman at paragraphs7.8 and 7.9 pages 397 and 398, citing R.v. Stirling 2008 SCC 10 , [2008] 1 S.C.R. 272,

(2008) S.C.J. No 10 (S.C.C.)] [117] Sopinka and Lederman confirm that an allegation of recent fabrication can also be made in pleadings and in the evidence ofanother opposite party witness and may be implied from the circumstances of the case or the way in which it is presented [seeparagraphs 7.11 and 7.12 at page 399.] [118] As noted in Fox v.

General Medical Council at 230 which is cited by Sopinka and Lederman at paragraph 7.6 at p 397: Plainly the rule that sets up the exception cannot be formulated with any great precision, since its application will depend on the natureof the challenge offered by the course of cross- examination and the relative cogency of the evidence tendered to repel it.

Its applicationmust be, within limits, a matter of discretion, and its range can only be measured by the reported instances, not in themselves many, inwhich it has been successfully invoked. [119] Therefore the aforesaid use of prior consistent statements must be limited to situations that actually fall within the variousexceptions. This is not one of those cases. [120] Having reviewing my bench notes and the transcripts of the evidence and the pleadings, I do not find that that an implicit orexplicit allegation of recent fabrication has been made by the Defendant.

Therefore the I do not find what the Claimant submits are herprior consistent statements made to these two witnesses to be of any use in bolstering the credibility of the Claimant as to the existence ofthe August 2004 Alleged Agreement. I certainly do not accept them as being evidence used for its truth as to the existence of thatAlleged Agreement.

Has the Claimant Proven the Existence of Any of the Alleged Agreements [121] The first major issue that I must determine is whether or not any of the Alleged Agreements amount to a legally enforceablecontract between the parties and thereby serve as a satisfactory basis for the Claimant cutting or topping the Fir Trees. [122] In other words I must determine whether the required elements to form a contract were present in each or any of the AllegedAgreements. [123] The obvious challenge in this case is that the Alleged Agreements, if they exist, are all oral in nature.

To her own detriment theClaimant took no steps to have any of any of the Alleged Agreements reduced to writing. [124] The Claimant relies upon the often cited elements of an enforceable agreement namely: offer, an acceptance of the offer and an

exchange of valuable consideration. [ 125 ] The absence of anything in writing makes it necessary for me to consider some other elements beyond these three important traditional elements to determine if the parties have entered into a legally enforceable contract. These other elements are canvassed in Versailles Building & Design v. Encore Entertainment Services and Products Inc. [2012] B.C.J. 392 ; 2012 BCPC 54 at para 49 : “The elements necessary for the formation of a contract are: 1. Making an offer - has an offer been made to enter into an agreement on certain terms? 2.

Acceptance to the offer - has each term of the offer been accepted by each party, either by words or by conduct? 3. Is there consideration - has one party given a benefit or has the other suffered a detriment or loss? 4. Do the parties to the agreement intend to create legal relations? 5. Are the terms of the agreement certain and not vague? 6.

Is the agreement complete - are there any terms left outstanding to be agreement upon later?” [ 126 ] In my view, the three traditional essential elements of an enforceable contract, and in particular the elements of offer and acceptance, are most applicable to the analysis as to whether or not the first three Alleged Agreements were created. [ 127 ] The February 2006 Alleged Agreement engages some of the other elements identified in Versailles Building.

Analysis of and Conclusions Reached With Respect to the August 2004 Alleged Agreement [ 128 ] The Claimant has not discharged her burden to prove that the August 2004 Alleged Agreement was concluded and that it is a legally enforceable agreement. I accept the Defendant’s evidence that she and the Claimant engaged in discussions but that she never agreed to accept the Claimant’s offer with respect to the terms of this Alleged Agreement. [ 129 ] Clearly the Claimant was aware of the unsuccessful negotiations that took place between the Peppers and the Joughins.

She incorrectly concluded that by proceeding to remove the contentious Arbutus Tree, as had been suggested by the Joughins to the Peppers, that the Defendant would be then obliged to permit her to cut or remove some or all of the Fir Trees. She relied upon a set of prior unsuccessful negotiations between the Defendant and the Claimant’s predecessor in title in her attempt to gain some rights to cut or remove the Fir Trees. [ 130 ] The historical nature of the dispute between neighbours and the length that it continued is significant.

The Claimant must have known of the significance of the Fir Trees and the importance of them to the Defendant given the subject matter and the length of the disagreement that predated the Claimant’s arrival in the neighbourhood. [ 131 ] If the proposal that the Claimant said she made as part of the August 2004 Alleged Agreement, and as the consideration benefit for the Defendant namely to remove what she says was her prized and valuable Arbutus Tree, it is most puzzling that Claimant did not follow the advice of Ms.

Gillard to confirm this important agreement in writing. [ 132 ] This would be especially important if she believed that the Defendant had agreed to allow the Claimant an absolutely free-hand to deal with the Fir Trees. The actions of the Claimant in not confirming the Alleged Agreement in some written form, her delaying in taking any action on the Alleged Agreement for several months, and the inconsistencies in what she told Mr. Hutton and Ms.

Gillard as to her rights under the August 2004 Alleged Agreement all undermine her assertions that an agreement had been reached. [ 133 ] On the other hand, the actions of the Defendant are consistent with her contention that there was no August 2004 Alleged Agreement. She reacted very negatively to the observed tree cutting and confronted the Claimant and Mr. Windsor on December 19, 2004 and told them to stop.

She then sent a written notice to that effect and subsequently followed up with a claim against her insurance policy for the loss that she had sustained from the cutting. [ 134 ] Her claim against her insurance policy in my view cannot and should not be interpreted on the facts as having any basis as a false claim. This was unfortunately suggested in the Claimant’s submissions, notwithstanding the attempt to place that in the context of it being “false” if the Claimant had permission to cut the trees, which I have found not to be the case.

Analysis of and Conclusions Reached With Respect to the December 2004 Alleged Agreement [ 135 ] Similarly the Claimant has failed to discharge her burden of proof with respect to the December 2004 Alleged Agreement. Given the high emotions that surrounded the discovery by the Defendant on December 19, 2004 of the tree cutting and in particular the harsh verbal responses of the Claimant and Mr.

Windsor directed at the Defendant when she told them to stop cutting, it is most unlikely that a conducive environment, both in terms of sufficient time and restrained and rationale emotions, existed for constructive negotiations and discussions to continue between the parties, much less for them to conclude the December 2004 Alleged Agreement. [ 136 ] The correspondence exchanged between the parties also undermines a favourable conclusion as to the existence of such an agreement being achieved.

Analysis of and Conclusions Reached With Respect to the September 2005 Alleged Agreement [ 137 ] Again I am not satisfied that the claimant has proven the existence of the September 2005 Alleged Agreement. [ 138 ] First of all, the evidence supports the conclusion that the disharmony between the Claimant and the Defendant continued at

heightened levels and therefore it was not conducive to any positive negotiations or agreement being reached in September of 2005. [139] Again, the Claimant takes no steps to confirm the terms of the September 2005 Alleged Agreement with the Defendant inwriting, notwithstanding that it was clear by that time that there were significant on-going difficulties between the parties even agreeingabout the existence of any of previous Alleged Agreements. [140] As potentially self-serving as it might have been, the Claimant's January 10, 2006 letter does not make it apparent that theClaimant was relying on the existence of the September 2005 Alleged Agreement or even that such an agreement had been reached.

None of the subsequent letters from the Claimant to the Defendant are premised on the existence of an agreement but rather containvarious suggestions from the Claimant as to means to resolving the existing differences between the parties. [141] The February 21, 2006 letter from the Claimant in fact seeks permission to do what the Claimant and Mr. Harris essentially startto proceed with in connection with the Fir Trees on February 26, 2006.

The February 21, 2006 letter thereby contradicts the Claimant’sassertion that permission had already been granted to the Claimant as part of the September 2005 Alleged Agreement. [142] Therefore I cannot conclude that any discussions that may have been engaged in between the parties resulted in the September2005 Alleged Agreement amounting to an enforceable contract. Offer and acceptance are lacking. Therefore the Claimant did not havepermission to proceed as she and Mr. Harris did, to cut the Fir Trees, several months later in February of 2006.

Analysis of and Conclusions Reached With Respect to the February 2006 Alleged Agreement [143] The February 2006 Alleged Agreement arises from Constable Bulman’s attempt to resolve a highly difficult continuing disputebetween the parties. On February 26, 2006 it had further erupted because the Claimant and her partner proceeded on the basis that theycould cut the Fir Trees in accordance with the September 2005 Alleged Agreement or possibly on the basis of any of the other AllegedAgreements.

I have found that this cannot be the case because the September 2005 Alleged Agreement and the other preceding AllegedAgreements are not enforceable contracts. [144] The Defendant makes certain admissions about the February 2006 Alleged Agreement noted above: that she would instruct anarborist about trimming the Fir Trees and that it would centre around cutting the trees to a height of around 25 feet. [145] If I accept that there was something in the nature of an offer from the Claimant in certain terms and the acceptance of each of thecertain terms of that offer by the Defendant and the Claimant, I must still be satisfied that there was some consideration to support themaking of the enforceable contract.

What was that consideration? Has one party given a benefit or has the other suffered a detriment ora loss? [146] The consideration certainly was not the surrender or modification of any right that the Claimant held with respect to cutting theFir Trees or trimming them beyond the portions encroaching on the Wallace Property. The Claimant possessed no such rights. [147] Perhaps it could be said that the consideration flowed from the Claimant abandoning her rights to take an action against theDefendant for the alleged nuisance caused by the First Trees.

That is not supported by the evidence. [148] In this case, I see nothing in evidence to support the notion that the subject matter of the February 2006 Alleged Agreement wassupported by any consideration. The burden is on the Claimant to prove all of the essential elements of an enforceable contract. TheClaimant has failed to do so. [149] If I am wrong, there is still the question about the February 2006 Alleged Agreement and whether or not the parties got beyonda contract to negotiate or an agreement to agree.

A contract to negotiate or an agreement to agree is not enforceable [see Bos v.Springmann 2012 BCSC 637 , [2012] B.C.J. No 866, 2012 B.C.S.C. 637 at para. 47 and the case authorities referred to therein]. [150] In Bos v. Springmann Mr. Justice Powers continues at para 47 to say as follows: Uncertain terms lead to an agreement to agree, which is unenforceable. However, merely uncertain details necessary to flesh outascertained terms could still lead to a common intention to be bound, and thereby could lead to an enforceable agreement.

InSussexinsuranceagency.com Inc., [2005 BCSC 58] the court stated at para. 74: [74] The key consideration appears to be whether the facts of the case show that the parties intended to be bound and merely delayedsettling the details, or whether the parties only agreed to continue negotiations.

In other words, only where the uncertainty relates merelyto the details will the contract be enforceable; otherwise, it is an agreement to agree and the courts will refuse to enforce it. [151] On the whole of the evidence before me I have concluded that what was really achieved by the discussions between the partieson February 26, 2006 aided by Constable Bulman was only an agreement to continue negotiations involving a trained arborist with aview to concluding an agreement to reduce the Fir Tree height to an appropriate level, thought to be in the range of 25 feet. [152] It is reasonable to draw the inference from the whole of the evidence that a topic for the future negotiations between the partieswas to reach an agreement on the appropriate height to which the Fir Trees could be topped, without that topping being detrimental totheir health and survival.

No legally enforceable contract having been reached through the negotiations, the Defendant chose towithdraw from those further negotiations as she was entitled to do. [153] Therefore the February 2006 Alleged Agreement has not been proven by the Claimant to be an enforceable contract. [154] Accordingly the Claimant cannot rely upon the February 2006 Agreement as the basis for any permission or a right tosubsequently trim or to cut the Fir Trees on the Joughin Property.

The Applicability of s. 59(3) of the Law and Equity Act . [ 155 ] If I am incorrect and any of the Alleged Agreements meet the necessary requirements to be found to be a contract, I must also consider the Defendant’s submission that s. 59(3) of the Law and Equity Act , R.S.B.C. 1996, c. 253 applies. She says that the Alleged Agreements, which are argued to be “a contract respecting land or a disposition of land” are not enforceable unless as stated in subsection (3) (a) (with respect to any such contract): (

a) there is, in a writing signed by the party to be charged or by that party’s agent both an indication that it has been made and a reasonable indication of the subject matter. [ 156 ] This

section of current the Law and Equity Act finds an earlier ancestor in section 2(1) of the Statute of Frauds R.S.B.C. 1960 c. 369 which read as follows: No agreement concerning an interest in land shall be enforceable by action unless evidenced in writing, signed by the party to be charged or by his agent and a more recent ancestor within the same wording in s 54(3) of the Law and Equity Act, RSBC 1979 c244. [ 157 ] The British Columbia Law Reform Commission Report on the Statute of Frauds(1977) provides a useful review of the complexity surrounding this particular section. [ 158 ] It would appear that there is a historical lack of clarity about the application of this part of the Statute of Frauds or its present incarnation in the Law and Equity Act . [ 159 ] If the parties actually did reach an agreement with respect to any of the Alleged Agreements, having considered the whole of the nature of the substance of the various Alleged Agreements, I would have to conclude that such agreements pertained to only a mere licence or permission to trim, top or perhaps remove some of the Fir Trees for husbandry purposes and accordingly related only to the Fir Trees and not to the lands comprising the Joughin Property. [ 160 ] Therefore I am of the view that s 54(3) of the Law and Equity Act has no application to this matter.

In doing so I am declining to follow the decision of this Court in Walker v. Leverman , [2004] B.C.J. 2585 which takes a different view as to the operation of that section. I note that a distinguishing feature of the Walker case is the alleged agreement asserted by the defendant in his counterclaim, whereby his land would be used for the construction of a fence in exchange for the cutting of the Claimant’s trees. [ 161 ] Parenthetically, I am also mindful of the decision in 387903 B.C. Ltd. v.

Canada Post Corp . 1995 CarswellBC 273 , BCSC in which Melnick J. says as follows at paragraph 58: 58 More importantly, s. 54(3) cannot properly form the basis of arguments attempting to prove the existence of a contract. It is clear that the provision deals with the separate issue of when a contract can be said to be enforceable. In other words, it applies in circumstances where a contract has been made and does not provide criteria for the determination of whether a contract has been formed. [ 162 ] Similarly, it seems to me this

section should not be relied upon to form the basis of arguments to deny the existence of a contract, but again only as to its enforceability.

Order With Respect to Claimant’s Remedies for the Alleged Breach of Contracts [ 163 ] Given my findings with respect to the Claimant failing to discharge the burden of proof of any of the Alleged Agreements, the Claimant is not entitled to any of the relief being sought with respect to the specific performance of any of the Alleged Agreements or with respect to any damages claimed by the Claimant against the Defendant for breach of contract, and including without limitation, any damages for the value of the Arbutus Tree, said to have been removed as part of the August 2004 Alleged Agreement.

These claims are therefore dismissed. Claims Brought By the Claimant In Nuisance [ 164 ] Having determined that the Claimant has no remedy in contract, I must now consider whether or not the Claimant can succeed in private nuisance. Position of the Claimant With Respect to the Claim in Nuisance [ 165 ] The Claimant says that she has demonstrated that the Fir Trees have resulted in an unreasonable and substantial interference with her use and enjoyment of the Wallace Property.

She further says that there are two types of this interference namely: 1) material injury to her and to the Wallace Property, and 2) detrimental effects on her enjoyment of life Alleged Material Injury to the Wallace Property

[ 166 ] With respect to the first type of interference the Claimant points to several things forming part of the evidence and to which she testified and which were detailed in the Mumby Report. [ 167 ] The Claimant testified about large branches periodically breaking off of the Fir Trees and landing on the Wallace Property. In 2009 a large fir branch pierced the roof of the Claimant’s house during a windstorm. The Claimant testified that this branch was about 3 feet long and 1 inch in diameter. It apparently caused some minor leaking. The roofing repairs were completed by the Claimant’s common-law husband.

Two separate repair estimates were obtained a considerable amount of time after the fact ranging from $173.60 to approximately $300. The Claimant apparently did not notify the Defendant of this damage nor she claim any restitution for it from the Defendant prior to the commencement of this action. [ 168 ] The Claimant suggests that the Fir Trees present a continuing hazard to the Wallace Property. The concern characterized by the Claimant is risk of damage triggered by high winds from broken branches and upper stems falling onto the Wallace Property and the improvements located thereon.

In that regard reliance is placed upon the Mumby Report. [ 169 ] In addition, the Claimant testified about fir needles, cones and small branches from the Fir Trees falling onto her lawn, the flat roof of her artist’s studio, and the pitched roof of her house. The resulting alleged nuisance is that extra maintenance is required to clean up her yard, the extra cleaning and the alleged shortening of the lifespan of the roof on the artist’s studio caused by sweeping and the necessity to frequently clean the gutters on her house.

No evidence was adduced about the financial costs of these matters. [ 170 ] She further asserts that the overhanging branches of the Fir Trees are the cause of what is characterized as a “ dead strip” along the property line on the Wallace Property where no living grass survives. This so-called “dead strip” was the subject of some comment in the Mumby Report which identifies a negative impact on the Wallace Property caused by the increased height and width of the Fir Trees.

Specifically it says that there is a reduction of sunlight and a reduction in water penetration for the lawn caused by the overhanging branches and the resulting extended drip line of the Fir Trees.

In addition a pH imbalance results from the dropped needles thereby causing the so called “dead strip”. [ 171 ] No evidence was provided by the Claimant as to what remedial steps if any have been explored or taken by the Claimant to deal with the remediation of the lawn or the expense of any type of remediation. [ 172 ] Evidence was also given by the Claimant about alleged damage to her wire fence as a result of the encroachment from the Fir Trees, as its branches pushed against that wire fence.

The Claimant did take steps to cut back the encroaching branches to the boundary between the Wallace Property and the Joughin Property and apparently removed some of the encroaching branches. [ 173 ] The Claimant also testified about what she considered to be excessive shade cast on her property by the Fir Trees for a period from August until April of each year. The suggestion is that the southern three-quarters of the Wallace property is shaded from approximately 9 AM onward.

The negative effect suggested by the Claimant is that she is prevented from personally using her deck during the months of September through to April since it is cold and that she cannot use her deck for gardening purposes. In

summary the Claimant says that the shade condition has significantly diminished the use and enjoyment of her property, the size of her usable lawn area and the portion of Wallace Property that can be used viably for gardening in a sustainable way. [ 174 ] She further suggests that the shade increases the cost of heating her house in the winter months but again no evidence was adduced as to what this extra cost might be or how any removal or reduction in the canopy of the Fir Trees may alleviate the complaints.

Alleged Detrimental Effects on the Claimant’s Enjoyment of Life [ 175 ] Evidence was adduced by the Claimant that she suffers from an autoimmune skin disease. She stated that she has difficulty regulating her body temperature and therefore she spends winters in her residence feeling very cold. She attributes this to the shade cast by the Fir Trees.

No independent medical evidence or other evidence was introduced to corroborate or support this suggestion. [ 176 ] In addition, the Claimant testified about her general loss of enjoyment of the Wallace Property which she says flows from the inability to garden or to enjoy sunshine while in her yard.

Position of the Defence With Respect to the Claim in Nuisance [ 177 ] The Defendant denies that the Fir Trees create a private nuisance and say that the evidence does not support any allegations that they have caused material injury to the Wallace Property nor has the evidence established that there has been any detrimental effect on the Claimant’s enjoyment of life as a result of Fir Trees.

Simply put having regard for the requisite elements and considerations to be applied the Defendant says that Claimant has not been able to demonstrate that that the Fir Trees amount to a nuisance and their existence and their preservation by the Defendant on the Joughin Property is not unreasonable nor actionable. [ 178 ] In particular the Defendant’s evidence and submissions suggest that the Fir Trees are part of the natural characteristic of this semi-rural neighbourhood that pre-dated the Claimant’s purchase of the Wallace Property.

Therefore says the Defendant there has not been any loss of the use and enjoyment of the Wallace Property by the Claimant. [ 179 ] Reliance is also placed by the Defendant upon the Lush Report and in particular the conclusion that the Fir Trees do not pose an imminent threat to the Wallace Property. [ 180 ] The Defendant challenges the assertion made by the Claimant and the Claimant’s evidence as to the amount of shade on the Wallace property caused by the Fir Trees.

The Defendant notes that there is the suggestion in the Claimant’s pleading that the Fir Trees “completely obscures sunlight onto [the Wallace Property] for 6 months of the year”. This it is said is an exaggeration and unproven as is the Claimant’s written submission that sunlight is blocked by the Fir Trees for an 8 month period to the southern three quarters of the Wallace Property. [ 181 ] The evidence of Mr. Lush is that he explained to Mr. Harris (and possibly also to the Claimant) during a discussion on the

Wallace Property that took place when he first attended to view the Properties that the failure of the grass to grow in the shade of the Fir Trees could be easily remedied by using lime to correct the pH balance and top dressing and using a shade resistant grass seed. Alleged Detrimental Effects on the Claimant’s Enjoyment of Life [ 182 ] The Defendant suggests that the Claimant is ignoring seasonal characteristics of winter, the lower position of the sun, and the lower overall temperatures in the winter when she attempts to attribute her feelings of being cold solely to the shade caused by the Fir Trees.

Rather the Defendant suggests that the feelings are more attributable to her autoimmune disease rather than the Fir Trees. The Experts’ Reports [ 183 ] Both of the parties rely upon their respective expert’s reports in dealing with the claim in nuisance. Accordingly, it is important to understand the separate opinions reached by these two experts.

The Mumby Report and Verna Mumby’s Evidence. [ 184 ] The stated purpose of the Mumby Report was to “determine the structural stability and health” of the Fir Trees located on the Joughin Property and to “provide mitigating measures of issues that the trees may be causing.” [ 185 ] In the Mumby report it is suggested that the Fir Trees have not been maintained to a “normal height of the hedge (8 metres maximum) and [have been] allowed to grow.” In the author’s view the growth of the Fir Trees and because of their present and increasing height has reduced their effectiveness as a hedge and caused several negative impacts. [ 186 ] These negative impacts include the creation of the so-called “dead zone” in the lawn. [ 187 ] The Mumby Report also notes that the Fir Trees have grown in very close proximity to each other and have increased in height.

They have increased in height and developed a heavy elongated branching in the upper canopy. However, they have not grown in a sufficient manner laterally thereby causing an absence of an adequate “flair” at the base of the trunk. [ 188 ] It is therefore suggested that this lack of an adequate flair has decreased the stability of the Fir Tree to move in high winds and it makes them prone to potential damage occurring to branches or stems. It is further suggested that due to their close proximity, the Fir Trees cannot not move on their own in high winds but rather as one solid unit.

Thus there is a potential for damage to the branches and upper stems during high wind events. The breaking of the higher branches was identified as a potential hazard for these branches falling onto the Wallace property. [ 189 ] The author of the Mumby Report also identified what was regarded as a heavy sap flow among some of the Fir Trees. She says the sap flow can indicate that the wind load on these tall Fir Trees is causing stress in the lower part of the stem. It can also indicate the presence of butt or root rot says the report. However, Ms.

Mumby could not enter upon the Joughin Property to verify this. [ 190 ] The Mumby Report makes a series of suggestions including:

a) completing a proper assessment of the Fir Trees to determine the presence of butt or root rot;

b) monitoring the heavy sap flow in the Fir Trees on a yearly basis to determine if the Fir Trees are “showing other signs and symptoms of decay or structural weakness”.

c) instituting pruning measures for each of the Fir Trees to properly thin the upper canopy of each Fir Tree and to thereby reduce the wind load on the long side branches. It is suggested that this can be done over a two-year period “to allow the tree to respond positively but that it will be necessary for the arborist return every 3 to 5 years and to do this work;

d) remove specific trees identified in the Mumby Report described as “not being in good condition”. [ 191 ] The Mumby Report provides a guideline suggestion of reducing the height and width of the Fir Trees by “a maximum of 1/3” which is suggested “will lower the potential to for the trees to fail and cause damage but not deem the trees 100% safe”. [ 192 ] The Mumby Report makes a further general recommendation based a certain assumption stated in the following manner: “If the function of the row of trees is to provide screening and privacy.” That being the case the recommendation is to remove all of the Fir Trees and to replace them with an “appropriate planting material for hedging.” The fast growing Leyland cypress is specifically mentioned as an alternative. [ 193 ] The final conclusion is stated as follows: “The row of Douglas Fir Trees located [on the Joughin Property] has outgrown their function.

Their present height and width, health and structural condition can cause damage to the Wallace Property within the next five years. Extensive mitigating measures should be performed or removal of the row and planting of proper hedging material.” T he Lush Report and Stephen Lush’s Evidence [ 194 ] The stated purpose of the Lush Report was to provide an risk assessment of the Fir Trees and specifically to offer an informed opinion on the safety issues and potential hazards posed by the Fir Trees. [ 195 ] Unlike Ms. Mumby, Mr. Lush did have an opportunity to speak to the Claimant’s partner Mr.

Harris for about thirty minutes in the absence

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