William and Heiderose Graw and Lorne Rockwell own adjacent forested acreage in Chilliwack, B.C. Rockwell trespassed onto the Graw property, cut down several large, mature Maple trees, as well as other smaller trees, cleared the underbrush, levelled the landscape within the approximately 690 square metre area, and created a twelve foot wide skid trail. Rockwell acknowledged the trespass and attempted to negotiate appropriate compensation and remedial measures with the Graws. When their dispute could not be resolved informally, the Graws commenced an action for damages arising out of the trespass.
The Court found the defendant’s trespass amounted to gross negligence. The defendant’s entry onto the plaintiffs’ property was a culpable trespass. Had the defendant taken the most basic precautions before cutting the trees and clearing the land, there would have been no trespass and no consequential damages. On a continuum of culpability, the Court found the defendant’s actions were closer to a deliberate, wilful act than to an unintentional accident. It was also apparent that the trespass caused more than nominal damage to the plaintiffs’ property. Thus, a more severe or wide ranging measure of damages was appropriate.
There was no dispute that the plaintiffs were entitled to damages representing the value of the timber taken by the defendant. The parties’ dispute centred upon the monetary value of the trees and whether the cost of harvesting the timber should be deducted. In the Court's view, the plaintiffs’ evidence of the value of the timber was preferable to the estimate provided by the defendant. Even if the defendant only received $300 for the trees, the plaintiffs were entitled to the actual value of the logs and should not be penalized if the defendant sold them for far less than fair market value. In addition, the defendant’s estimate only included a value for the Maple trees.
The Court was also satisfied that the cost of harvesting the timber should not be deducted from the damages awarded to the plaintiffs. The plaintiffs had no intention of harvesting these trees and are faced with the task of restoring the area. The authorities support no deduction for harvesting costs when the defendant’s trespass was culpable. Lastly, the defendant carried out the work himself and did not provide the court with any evidence of his labour costs.
The Court ruled that the plaintiffs were entitled to the reasonable costs of restoring the affected area as of the date of the trespass, subject to their duty to mitigate and awarded the plaintiffs $5,875 for the costs of restoring the affected area. The Court also awarded $2,125 for the value of the timber taken and $2,000 for loss of use and enjoyment of the land.
Read the decision at: Graw v. Rockwell.