Rainbow

Rainbow

Monday, July 21, 2014

Dead lawn points to neighbour's herbicides, but standard of proof not met

The Plaintiff in a Saskatchewan small claims suit alleged that the Defendant applied a substance in the back alley next to his property that caused damage to the Plaintiff's lawn.  The judge hearing the case was satisfied on a balance of probabilities that a substance from the back alley did migrate to the Plaintiff's lawn, either through run-off or leaching, and killed it.  This finding was supported by viva voce testimony, an investigation report, and photographs.  However, the judge was not satisfied on a balance of probabilities that the Defendant had anything to do with putting the substance into the back alley or that the substance came from the Defendant's property.

Of course, the judge accepted that the Plaintiff's suspicions about the Defendant's involvement were not unwarranted.  The Defendant was employed by a crop production services company and the Plaintiff's wife had seen the Defendant dump liquid in the back alley.  The Defendant told the Plaintiff that he has used glyphosate and Ally, and may have "mixed one a little strong".  The Defendant's yard is directly across the back alley from the Plaintiff's yard, and the alley slopes from the Defendant's yard to the Plaintiff's yard.  And there was no plant kill in any other yard in the area.

In spite of this circumstantial evidence, the judge did not find for the Plaintiff.  There was no evidence of what substance had actually killed the Plaintiff's lawn, and no samples had been taken from the back alley to test for chemicals in that area.  The Plaintiff suggested that the cost of testing for numerous substances until the correct one was found would be prohibitive, but it appears to have left the Plaintiff without the evidence necessary to prove the claim.

The Court dismissed the Plaintiff's claim, but (perhaps tellingly) made no order as to costs. 

Read the decision at: Charbonneau v Statchuk.