2012 BCPC 548, 2012 BCPC 548

Citation: The Owners, Strata Plan BCS 1389 v. McArthur Date: 20120921 2012 BCPC 0548 File No: S70873 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: THE OWNERS, STRATA PLAN BCS 1389 CLAIMANT AND: SUSIE McARTHUR DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Appearing for the Claimant: Alan MacFarlane Appearing in person: Susie McArthur Place of Hearing: Surrey , B.C. Date of Hearing: September 17, 2012 Date of Judgment: September 21, 2012

[ 1 ] The Claimant, the Owners, Strata Plan BCS 1389, is suing the Defendant, Susie McArthur, for damages caused to two trees on the strata corporation’s common property when the Defendant’s son and another boy stripped almost all the bark from the trunks of the trees in the summer of 2010. The strata corporation’s bylaws make the owner of a strata lot responsible for damage caused by occupants of their unit and the Claimant relies on its bylaws in this case. [ 2 ] A judge can never know all the facts but must decide cases based on the admissible evidence presented in court during the trial.

In order to obtain a judgment against the Defendant, the Claimant must prove its case on the balance of probabilities; in other words, there must be sufficient evidence in the trial to establish that it is more likely than not that the facts are as the Claimant contends.

Where the evidence on a disputed fact does not “tip the scales” in favour of the Claimant, it will not have met its burden to prove that fact on the balance of probabilities. [ 3 ] The issues in this trial are the extent of the Defendant’s liability for the damage to the trees and the “ quantum of damages” or the amount of money required to compensate the Claimant for the damage.

The Defendant says the sum the Claimant paid to replace the trees is unreasonably high, and any award to the Claimant should also be reduced because the trees were previously damaged; they were poorly located; and her son caused less damage than the other boy. I will deal first with apportionment of liability and then with the quantum of damages proven by the evidence.

Liability [ 4 ] Although the Claimant did not call an expert witness to establish that stripping almost all the bark from a tree trunk between the roots and the branches would kill the tree, I consider this a matter of common experience that doesn’t require the opinion of an expert. The Claimant’s Strata Council was justified in replacing the damaged trees in anticipation of their death; it was not required to wait until the trees died to act. Moreover, stripping their bark left the trees with bare wood trunks.

This changed their appearance sufficiently that the Strata Council was justified in replacing them to maintain the appearance of the common property. [ 5 ] I reject the Defendant’s submission that her liability should be reduced because of pre-existing damage to the trees. Her son testified that there was a hole in the first tree from which the boys stripped bark, and she provided photographs showing damage to the second tree in 2009 and more recently to various other trees on the common property.

However, there was no evidence to establish that any pre-existing damage to the trees had any effect on their life expectancy. Whether or not they were planted in spots where they risked being struck by cars is irrelevant, since there was no evidence that any damage done by cars affected the trees’ health. The photographs of pre-existing damage are not clear enough to permit that inference. Nor does the fact that pre-existing damage made it easier for the boys to strip the bark reduce the degree of fault of the Defendant’s son.

He intentionally took advantage of a break in the bark to strip it away and his actions caused damage to the trees that necessitated their replacement. [ 6 ] However, liability should be apportioned between the two boys responsible for the damage. The Claimant is suing the Defendant for 50% of its cost to replace the trees. Her son testified that before he did anything the other boy threw rocks at the first tree and tore strips of bark from it. He said they then both stripped bark from both trees. I found the Defendant’s son to be a credible witness who has acted honestly in admitting his foolish actions.

At his mother’s suggestion he acknowledged responsibility, wrote a letter of apology, and delivered it to a member of the Strata Council shortly after doing the damage. His account of the boys’ actions was not contradicted. He did not blame the other boy or minimize his own degree of responsibility. He estimated it to be 40%, and his uncontradicted testimony supports that assessment. I therefore accept that the Defendant is 40% liable for the damage to the trees. [ 7 ] I note that the other boy’s father has settled with the strata corporation.

Because he is no longer a party to this lawsuit and did not participate in the trial, my judgment does not affect any agreement between them. Nor does the amount he paid affect the Defendant’s liability to the Claimant or the amount the defendant should pay. Quantum of damages [ 8 ] The Claimant is entitled to reasonable compensation for the damage it suffered. It was entitled to replace the damaged trees with similar trees of equal maturity and size. In fact, the trees that were planted by the Claimant’s landscaper appeared from photographs to be smaller than the trees near them.

They appear to have trunks with smaller circumferences and to have considerably fewer and less full branches. I therefore find the size of the replacement trees to be reasonable. [ 9 ] However, there is no evidence to establish that the $2475 plus HST that the Claimant paid its landscaper was a reasonable price to replace the damaged trees. The Claimant did not call a witness from the landscaping company. The landscaper’s invoice says only “Replacement of maples.” It does not specify the portion of the price paid for the trees or the cost of labour to remove the old trees and plant the new.

It contains no details about the type of trees provided, although an email from the landscaper dated September 20, 2011 indicates they were “10 cm caliper Scarlet Sentinel Red Maple Trees” “approximately 20’ high.” (This email was admitted as evidence without objection from the Defendant, and it was disclosed to her before the trial.

I accept it as some evidence of the description of the replacement trees but its reference to an opinion agreed between the landscaper and “their arborists” amounts to double hearsay evidence that is not admissible.) The Claimant provided no other quotes or estimates from other businesses of the cost of supplying and planting trees similar to the damaged ones. [ 10 ] Thus, the Claimant has proved that it paid $2772 to replace the damaged trees. That is some evidence I can consider in

assessing a reasonable dollar value for damages, but it is certainly not conclusive. I understand that the Strata Council accepted the advice of its trusted landscaper; did not obtain an arborist’s report because it would have been expensive; and did not consider it necessary to obtain more than one quote for an expenditure under $5000. While those may all have been sound business decisions for the strata corporation, the requirements to prove a case in court are different from the requirements of governing the strata.

My task in this trial is not to review the Strata Council’s decisions; I must assess the evidence it offered in court to determine whether it has proven its claim. [ 11 ] The Defendant provided estimates that she relied on to establish a much lower cost for replacing the trees. None of the estimates stated that it was to supply and plant 10 cm caliper Scarlet Sentinel Red Maple Trees approximately 20’ high, but some of them appeared to be for generally similar trees. I will not consider the Home Depot ads because they involved shorter trees.

However, David’s Tree service quoted $175 plus tax for the labour to plant two trees; Jovak Landscape and Design quoted $750 plus HST to remove and replace two Sunset Maple trees; Morris the Arborist indicated a charge of $400 per tree plus the cost of the tree to remove and replace red maples; and Cedar Rim horticulturists quoted $369 to $398 as the cost of a 7 to 8 cm caliper red maple. [ 12 ] The Defendant also provided a photograph showing that one of the replacement trees had a circumference of 8.75” (22.225 cm) a year after it was planted.

Using mathematical calculation, the diameter of a circle with that circumference would be 7.076 cm. I have no evidence about the meaning of “10 cm caliper” or how and where on its trunk a tree is measured. I assume that a 10 cm caliper tree is larger than an 8 cm caliper tree.

However, in the absence of evidence explaining the sizing of trees and without a witness to testify to the size of the damaged trees and the size of replacement trees supplied by the landscaper, the Defendant’s photograph raises a possibility that the replacement trees could have been smaller than the 10 cm caliper mentioned in the landscaper’s letter. In the absence of evidence to the contrary, I consider an 8 cm caliper tree to be within the range of acceptable replacements for the damaged trees. [ 13 ] As I said before, a judge must decide cases on the evidence presented in court during the trial.

When I assess the Defendant’s estimates and the price actually paid by the Strata Council I consider the charge of $400 per tree to be reasonable for removing damaged trees and planting new ones and $398 per tree to be a reasonable price to purchase the trees.

These figures are neither the highest nor the lowest of the actual cost and suggested costs but are in the middle of the range. [ 14 ] Based on the evidence provided in the trial I therefore find a reasonable cost to replace the damaged trees to be as follows: $ 800.00 for labour $ 796.00 for trees $1596.00 $ 191.52 HST $1787.52 total cost [ 15 ] The Defendant’s portion of that cost, being 40%, is $715. The Claimant’s original Notice of Claim contained errors and it was slow in providing the Defendant with details of the work done by the landscaper.

This prevented the Defendant from properly assessing the claim and considering settlement. In these circumstances, although I must include Court Order Interest, it will be at the reduced rate of .03% from February 7, 2011, the date of the landscaper’s invoice tendered in evidence, until September 21, 2012. [ 16 ] I therefore make a payment order that the Defendant pay $715 plus Court Order Interest to the Claimant at the rate of not less than $100 a month commencing October 1, 2012 and continuing on the first of each month thereafter until the amount ordered is paid in full.

If she defaults on any one monthly payment the entire balance owing becomes due and owing immediately and the Claimant may pursue its collection options. However, if the Defendant sells her strata lot before the debt is paid, the entire balance owing must be paid on or before the date the sale closes. [ 17 ] Because the parties each had partial success it is appropriate that they bear their own expenses for filing and service. The Claimant’s claim for indemnity for legal fees as provided by its bylaws is dismissed for lack of evidence of any legal fees paid.

The Defendant’s request for payment of legal costs is dismissed because this cannot be ordered under the Small Claims Act . [ 18 ] On September 19, 2012, the Defendant filed a letter asking to introduce additional documents, provided to her in disclosure by the Claimant, as evidence in the trial because she overlooked them during the trial. I reject that request for two reasons. First, a judge cannot accept evidence from one party after the close of evidence in a trial because the other party would not have an opportunity to comment on it. It would be unfair.

Second, even if the documents had been introduced during the trial they would not have been admissible because they are not relevant to an issue in the trial. As I understood the Defendant’s submission during the trial, she sought to prove that Canadian Lawn Care Services is related to the Claimant’s landscaper, Weedbusters Ltd., because she heard someone in a Canadian Lawn Care Services truck say something about the trees. As I told the Defendant, what she heard someone else say is not admissible evidence; it is hearsay.

In order to introduce evidence of what that person said she would have to have them testify in court. Thus, any relationship between Weedbusters Ltd. and Canadian Lawn Care Services has no relevance at all to any issue in this trial. For these reasons I will not consider the additional evidence the Defendant tendered after closing submissions in the trial.

___________________________________ A.E. Rounthwaite Provincial Court Judge