Assurance B. Belliveau Insurance Inc. Claimant - v. –, 2024 NBKB 17

Before: Justice Stephen J. Doucet Date of Hearing: November 15, 2023 Date of Decision: January 25, 2024 Appearances: For the Claimant: Gaëtan Lagacé For the Defendant: Marcel Girouard

Summary: Nuisance and appeal by way of trial de novo IN THE SMALL CLAIMS COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MONCTON Citation: 2024 NBKB 017 Date: January 25, 2024 Court File No.: MC-272-23 Between: Assurance B. Belliveau Insurance Inc. Claimant - and – Blue Thunder Construction Ltd. Defendant [TRANSLATION] Doucet, J. INTRODUCTION [ 1 ] This is a claim resulting from damage caused to a fence separating two adjacent properties and seeking damages for the cost of replacing the fence. FACTS [ 2 ] The claimant is a corporation having its head office in the city of Dieppe, New Brunswick.

Gaëtan Lagacé is one of the owners of the claimant and was the sole witness for the claimant. [ 3 ] The defendant is also a corporation doing business in the Greater Moncton area. Its owner is Marcel Girouard. Mr. Girouard and Sifroi Melanson, a snow removal contractor, testified for the defendant. Mr. Melanson was not qualified as an expert witness. [ 4 ] The claimant is a company providing insurance services, and the defendant is a company providing renovation and construction services. [ 5 ] The parties are the owners of adjacent properties in Dieppe, New Brunswick.

They share a property line on which a chain link or wire fence had been installed. [ 6 ] The claimant claims that the defendant or its employees, agents or contractors damaged the fence when clearing the snow on the defendant’s side of the fence. [ 7 ] The cost of replacing the damaged fence was $2,754.25. The fence was replaced by Eastern Fence Limited on April 25, 2022. [ 8 ] The defendant argues that it is the claimant’s snow remover that caused the damage with its snow removal equipment. [ 9 ] The parties submitted several photos in support of their respective positions.

[ 10 ] Mr. Lagacé testified that significant amounts of snow were piled against the fence on the defendant’s side in 2021 and 2022. Further, the snow was so abundant that it was piled higher than the full height of the fence. Mr. Lagacé also testified that his snow remover usually pushed the snow to the back of his property and not against the fence, contrary to what the defendant’s snow remover used to do. [ 11 ] For his part, Mr.

Girouard argues that it is the claimant’s snow remover who would have damaged the fence, since the equipment used by the defendant for its snow removal could never have bent the upper iron bar of the fence. [ 12 ] Mr. Girouard also questioned the dates (year) on certain photos, but he agreed that the photos were authentic. [ 13 ] The invoice for $2,754.25 claimed by the claimant is also disputed. Mr. Girouard argues that he should have been given the opportunity to install another fence, since he is a building and renovation contractor. Mr.

Girouard’s position is that if the defendant is liable for the damage caused to the fence, the amount payable to the defendant [ sic ] should only be the cost of materials, $401.86, that is reflected in an estimate dated July 4, 2022, that the defendant obtained from Eastern Fence Limited. [ 14 ] Mr. Girouard’s position is that the claimant did not give him a reasonable opportunity to see to the installation of the new fence, since Mr. Lagacé only informed him on April 7, 2022, that he was going to have the fence installed. [ 15 ] For his part, Mr.

Lagacé submitted in evidence email correspondence exchanged with Brenda Girouard on February 7, 2022; it would seem that Ms. Girouard was able to contact Marcel Girouard, since an email dated February 9, 2022, confirms a response from Marcel Girouard forwarded by Brenda Girouard. [ 16 ] The claimant submitted the following exhibits in evidence: 1. Exhibit C-1 Aerial photo of both properties; 2. Exhibit C-2 Series of nine (9) photos taken at various times during the winter of 2021 and the spring of 2022; 3. Exhibit C-3 Email dated February 7, 2022, nine (9) pages; and 4.

Exhibit C-4 Bill from Eastern Fence. [ 17 ] The defendant submitted the following exhibits in evidence: 1. Exhibit D-1 Email dated April 17, 2022; 2. Exhibit D-2 Email, four (4) pages; 3. Exhibit D-3 Letter from Eastern Fence dated April 5, 2022; 4. Exhibit D-4 Letter from Eastern Fence dated July 4, 2022; 5. Exhibit D-5 Photo with houses; and 6. Exhibit D-6 Photo with trees. ISSUES [ 18 ] Who is liable for the damage caused to the claimant’s fence? [ 19 ] If the defendant is liable, to what amount of damages is the claimant entitled? ANALYSIS [ 20 ] This is a case in nuisance.

A nuisance is an unreasonable interference with the use and enjoyment of property. The focus is on the harm suffered rather than on the wrongful conduct. The question of whether the interference results from intentional, negligent, or non-faulty conduct is of no consequence, provided that the harm can be characterized as a nuisance. [ 21 ] In St. Lawrence Cement Inc. v.

Barrette , 2008 SCC 64 , [2008] 3 S.C.R. 392, the Supreme Court of Canada stated the following with respect to the definition of nuisance, at paragraph 77: [77] At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct (A. M. Linden and B. Feldthusen, Canadian Tort Law (8th ed. 2006), at p. 559; L. N. Klar, Tort Law (2 nd ed. 1996), at p. 535). Nuisance is defined as unreasonable interference with the use of land (Linden and Feldthusen, at p. 559; Klar, at p. 535).

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

The interference must be substantial, which means that compensation will not be awarded for trivial annoyances (Linden and Feldthusen, at p. 569; Klar, at p. 536). [ 22 ] I am guided by the photos taken by both parties, in particular Exhibits C-1, C-2, D-5 and D-6. The photos show significant amounts of snow in the area between 2021 and 2022. [ 23 ] The exhibits mentioned also show a significant amount of snow piled against the said fence, and the fence was notably damaged, twisted and bent.

[ 24 ] The crucial question is the following: who is liable for the damage caused to the fence? The evidence confirms that the snow was piled on the defendant’s side of the fence. The documentary evidence clearly shows that the snow on the defendant’s side of the fence exerted pressure on the fence, which made the fence sag and lean towards the claimant’s property. The series of photos in Exhibit C-2 shows unequivocally that the snow on the claimant’s [ sic ] side was higher than the upper bar of the fence.

Also, the photos on pages 2, 3, 4, 5 and 6 of Exhibit C-2 clearly show that the snow on the defendant’s side of the fence pushed against the fence and made it curve, bend, and fall. [ 25 ] I give no weight to Mr. Sifroi Melanson’s testimony. First of all, he confirmed that he has been friends with Mr. Girouard for many years and that he had even worked for the claimant [ sic ] or Mr. Girouard. He stated that the defendant used only plows and not loaders. Also, trucks equipped with blades could not go near the fence. He did, however, admit that sometimes the snow went over the plow’s blades.

He testified that the damage to the fence was probably caused by a loader. I disagree.

On a balance of probabilities, the evidence shows that the defendant’s snow removal trucks pushed the snow against the fence, and no care was taken to avoid the accumulation of snow that was exerting pressure on the fence. [ 26 ] The oral and documentary evidence shows and confirms that the claimant was able to have the snow on its property pushed to the back of the property; however, the defendant had no space on its property to pile excess snow. [ 27 ] On the whole of the evidence, I am satisfied, on a balance of probabilities, that the defendant is entirely liable for the damage caused to the fence. [ 28 ] Mr.

Girouard states that he had suggested to Mr. Lagacé, by email, that he call on his business to install the fence and save on the overall cost of the fence, or that he select his own contractor. However, Mr. Girouard produced Exhibit D-4, an estimate dated July 4, 2022, for materials only, two months after his email exchange with Mr. Lagacé. This speaks to a lack of urgency or importance with respect to the damaged fence and shows that it was not a priority for the defendant. [ 29 ] Mr.

Girouard argues that the claimant acted too hastily, and that he had 15 days to respond and confirm whether or not he agreed with the defendant’s [ sic ] proposal. The email containing the claimant’s proposal was dated April 7, 2022, and the defendant’s response was sent on April 19, 2022, within the 15-day period.

The defendant’s allegation in this regard is therefore without merit. [ 30 ] In this case, I find that the snow removal in the defendant’s yard caused an unreasonable interference with the use of the claimant’s land, and that the interference was the result of negligent conduct on the part of the defendant or its agents, employees, or contractors. I am satisfied that the evidence shows that the interference would have been intolerable to an ordinary reasonable person, that the interference was substantial, and that the annoyance was therefore significant.

In coming to my decision, I have taken into account the nature of the dispute, the severity, the duration over several seasons, the neighbourhood, and the utility of the activity. [ 31 ] I therefore find the defendant liable for the damage caused to the claimant’s fence. [ 32 ] With respect to the damages claimed by the claimant, I consider the estimate of $2,754.25 reasonable, as is the claimant’s approach of entering into discussions with the defendant before completing the work needed to replace the fence.

DISPOSITION [ 33 ] For the above reasons, I grant the claimant’s claim and award the claimant judgment against the defendant in the amount of $2,754.25 plus costs of $50. DATED this 25th day of January 2024, at Miramichi, New Brunswick. Justice Stephen J. Doucet Court of King’s Bench of New Brunswick