Wednesday, February 22, 2017
In 2002, Owner B purchased a property and was aware that a fence at the back of the property might not align with the actual boundary line. In 2007, Owners K bought the property directly behind B's property. The Ks disputed the location of the fence, arguing that it was 12 feet inside their property line. The Ks had hired a surveyor. He'd already surveyed the property in 1990 and surveyed it again in 2007. In both surveys, he found that the fence was 12 feet inside the property line.
In 2008, under cover of darkness, Mr. K tore down the fence. B immediately commenced an action in trespass against the Ks. Following a summary trial, the B.C. Supreme Court found that the Ks' surveyor was correct (that the fence was within the Ks property) and dismissed the trespass claim. However, that decision was overturned on appeal. A second trial took place and the Supreme Court this time ruled in favour of B. The Court concluded that the Ks' surveyor was not correct and that the boundary was actually in the location of the fence. That decision was upheld on appeal.
As is usually the case, B was awarded part of her costs payable by the Ks, leaving her out of pocket the difference between the costs awarded and her actual legal costs. So B commenced an action against the Ks' surveyor, arguing that his errors resulted in her financial loss. In response to B's action, the surveyor made an application to strike the claim on the basis that B had no cause of action against the surveyor. That application was dismissed by the Supreme Court and the case ended up again before the Court of Appeal.
The Court of Appeal reversed the lower court decision and allowed the surveyor's application to strike B's claim on the basis that it failed to disclose a reasonable cause of action. In summary, the Court wrote: "[B]'s pleading is fundamentally flawed. It fails to advance facts that reveal the necessary relational proximity to establish a duty of care. It does not allege that she had direct dealings with [the surveyor] or relied on his representations. Nor does it set out facts that would reasonably support a conclusion that [the surveyor] inferentially assumed responsibility for her beneficial interests. [B]’s claim must therefore be struck."
To recover damages in a negligence claim, it's not only necessary for the claimant to prove that the defendant (in this case, the surveyor) fell below the required standard of care and was negligent, but the claimant must also show that there was a relationship between the claimant and the defendant that created a "duty of care". Making a mistake doesn't mean that someone will be liable to everyone in the world for any sort of loss that might somehow result from the mistake. In this case, B had not hired the surveyor. The Ks hired the surveyor in the context of an adversarial dispute with B, and the Court found that the surveyor did not assume responsibility for B's interests and did not owe her a duty of care.
Read the decision at: Burke v. Watson & Barnard (A Firm).