Howarth v. Farguson et al., 2015 MBCA 21

Citation: Howarth v. Farguson et al., 2015 MBCA 21 Date: 20150226 Docket: AI14-30-08230 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN: HEIDI HOWARTH and ) J. B. Martens andSCOTT HOWARTH ) A. W. Boumford ) for the Appellants (Applicants) Appellants ) ) D. M.

Foerster- and - ) for the Respondents ) ) Appeal heard andMARGARET ANN FARGUSON, CORRIE ) Decision pronounced:ANN FARGUSON and BECKY LEE ) February 11, 2015FARGUSON ) ) Written reasons: (Respondents) Respondents ) February 26, 2015 MAINELLA J.A. (for the Court): [1] This is an appeal of an order of the application judge exercising his discretion under s. 28 of The Law of Property Act,C.C.S.M., c. L90 (the Act), regarding an encroachment of a cottage onto a neighbour’s property at Lake Metigoshe.

Instead of orderingremoval of the encroachment, as the appellants requested, the judge granted the respondents a statutory easement under s. 28(

a) of theAct for the life of the encroaching building and also ordered the respondents to compensate the appellants by paying a fee of $100 eachyear commencing July 1, 2014, for the duration of the easement. [2] The facts as to the encroachment are straightforward and uncontested. In July 1996 the respondents purchased land onwhich there was a lakefront cottage (legally described as “LOT 5 BLOCK 7 PLAN 718 BLTO BO DIV ….”). They immediatelyrenovated the cottage by adding an addition for a bathroom.

Instead of surveying their property before building the addition, therespondents unwisely relied on a tree line with the adjoining property to the east. The respondents’ neighbours at the time raised noconcerns as to the location of the addition to the cottage. [3] In September 2003 the appellants purchased the adjoining property to the east of the respondents (legally described as“LOT 4, BLOCK 7, PLAN 718 BLTO BO DIV ….”).

In 2005 they had their property surveyed for a cottage renovation project anddiscovered that the respondents’ cottage encroached onto their property by 3.15 feet and its eaves encroached by 5.95 feet. The partiesattempted to resolve the dispute unsuccessfully over the next nine years before the appellants sought relief under s. 28 of the Act. [4] The language of s. 28 of the Act confers on a judge a broad discretion to remedy boundary disputes based on the factsand equities of the individual case (Taylor v. Hoskin, 2006 BCCA 39 at paras. 50-53, 222 B.C.A.C. 86; and Gainer v.

Widsten, 2006BCCA 580 at paras. 7-9, 233 B.C.A.C. 313). Such a discretionary decision is entitled to significant deference and should not be variedon appeal absent a misdirection of law, a palpable and overriding error of fact or a clearly wrong decision occasioning “a truly unjustresult” (see Towers Ltd. v. Quinton’s Cleaners Ltd. et al., 2009 MBCA 81 at paras. 25-28, 245 Man.R. (2d) 70). [5] The appellants have not persuaded us that the judge’s decision to grant a statutory easement should be disturbed.

Incomprehensive reasons, the judge identified and weighed relevant factors in determining that the balance of convenience favoured astatutory easement such as: the honest error that caused the encroachment in 1996, its permanent nature, its small size and the minimalimpact it has on the appellants’ property. [6] However, we are satisfied that the judge misdirected himself on the question of the compensation for the statutoryeasement. Unless a proportionate remedy is granted under the Act to make amends for the consequences of a mistake in relation to land,a truly equitable result cannot be achieved (Welz v.

Bady et al. (1948), (MB CA), 56 Man.R. 374 at 379 (C.A.)).

[7] This is not a case where the respondents deliberately disregarded their neighbours’ property rights knowing that anencroachment would cause damage to the adjoining property. If it were, the court could address such highhanded conduct by anexemplary component to its award under s. 28(

a) of the Act to make it clear that “trespass does not pay” (Prince Rupert (City) v.Pederson et al. (1994), (BC CA), 50 B.C.A.C. 249 at para. 36; and see Hrynyk v. Kaprowy (1960), (MB KB), 30 W.W.R. 433 at 445 (Man. Q.B.)). [8] At the hearing of the application, the appellants relied on the result in Hrynyk, exclusive of the award of exemplarydamages in that case and adjusting the measure of compensation ordered for inflation, to suggest $400 a year would be reasonablecompensation for the encroachment of one lakefront cottage onto the property of another.

The respondents appropriately conceded thatthe appellants were entitled to compensation for the historic trespass plus compensation going forward for the life of the encroachingcottage. They conceded $400 a year was within the range for an encroachment of this type, however, they asked the judge to order only$300 a year and to cap the total amount of compensation at $4,000. [9] In contrast to his reasons on whether to grant a statutory easement, the judge’s reasons on the question of compensationfor granting one were brief. He made no reference to, and did not give effect to, the principle of proportionality.

He also failed tocompensate the appellants at all for the historic trespass to their land for the previous ten years (2003-2013) despite the respondents’concession. Finally, the judge failed to explain his reason for arriving at a figure for compensation far below what was suggested byboth parties. These errors cannot be said to be harmless and, therefore, require correction. [10] In light of the findings of the judge about the culpability of the respondents and the impact of the encroachment to bothproperties, we are satisfied that, for the purpose of measuring compensation under s. 28(

a) of the Act, the trespass to the appellants’property is mild as opposed to severe (Squamish Indian Band et al. v. Capilano Mobile Park et al., 2012 BCCA 126 at para. 94, 318B.C.A.C. 239). It is nothing more than a minor inconvenience to the appellants and there is no suggestion that the encroachmentmaterially affects the value of their property. The suggested compensation amount of $400 a year is, in our view, reasonable in light ofthe circumstances.

Given that the respondents have taken efforts, such as re-shingling their cottage’s roof, to extend the life of thebuilding, there is no justification to cap the amount of total compensation for the easement. [11] Accordingly, the respondents are ordered to pay the appellants the sum of $4,400 as compensation for the encroachmentfor the years 2003-2014. The annual fee payable going forward, as of July 1, 2015, for each year of the statutory easement, is varied to$400 a year plus one and one-half per cent, calculated and compounded annually for each year after 2015.

In order to preserve theintegrity of the Torrens system during the life of the encroaching building for the present owners of the two adjoining properties and anyfuture owners while the statutory easement continues, the respondents are ordered to take all necessary steps, and incur all resultingcosts, to register any interest(

s) arising from the statutory easement in the appropriate land titles office before December 31, 2015, and,thereafter, provide to the solicitor for the appellants satisfactory proof of the registration. [12] The appeal is allowed in

part in accordance with these reasons with costs to the appellants. J.A. J.A. J.A.