2018 Pull

2018 Pull

Wednesday, May 30, 2018

Reminder: Check the property boundary before cutting down (your neighbour's) trees

A Superior Court case heard in April, 2018 involved rural neighbours and the unauthorized removal of trees.  Neighbour O sold trees on his property to the owner of a local sawmill, T.  T apparently had a permit to remove the trees from Neighbour O's property, and took the timber that he had purchased.  T did not, however, have a permit to remove trees from Neighbour M's property, and neither Neighbour O nor Sawyer T had permission from Neighbour M to take down any trees at all on her property.  Unfortunately, T removed 98 mature white cedar trees from a forest area on Neighbour M's property.

Neighbour M sued Neighbour O for damages in trespass.  The trespass was admitted.  However, the parties disputed two issues: 1) a limitation period defence put forward by Neighbour O; and, 2) the amount of damages to be awarded for the trespass, if the limitation period defence did not eliminate the claim entirely.

The Court rejected the limitation period defence.  The trees had been removed by T in February, 2011.  Although Neighbour M did not commence her claim until October, 2013, some 32 months after the trees had been removed from her property (beyond the 2-year limitation period applicable to most damages claims in Ontario), Justice Gordon accepted Neighbour M's explanation that she did not become aware of the tree cutting until November, 2011 (less than 2 years before the action was commenced).  The limitation period did not begin to run until Neighbour M had discovered her claim; Justice Gordon accepted her explanation that she had not visited the area of her property where the trees were located (which was a 15 minute walk from her residence) during the period from February to November, 2011.

As for damages, Justice Gordon decided that, in addition to an award of $8,000 as compensation for the value of the timber taken by T, the cost of restoration was the appropriate measure of damages for the trespass in this case.  He noted that the 98 trees taken had been growing for decades and could not be replaced, and further decided that the natural forest area should be left to re-seed itself.  Replanting was not found to be warranted.  Justice Gordon awarded Neighbour M a further $30,000 plus HST for the cost of "appropriate restoration", which would involve removing broken tree limbs in the canopy and on the forest floor, removing tree tops from timber removed, removing damaged, leaning and spring pole trees, chipping and spreading chips on the forest floor, and cutting stumps to ground level.

Read the decision at: M v. O.

Thursday, May 24, 2018

Subsequent agreement doesn't necessarily cancel out pre-existing prescriptive easement

"Good fences do not always make good neighbours." 

I wonder how many court decisions begin with that line or something like it - it seems like it must be a lot.  Madam Justice Gomery of the Ontario Superior Court opens her reasons with that line in a recent case involving a claim for a prescriptive easement in Ottawa.  Neighbours were in court disputing the space between their houses, each built sometime prior to 1928.  The houses are just over 14 feet apart, and a shared driveway runs between the houses.

Neighbour E had lived in the one house since 1980.  Neighbours P moved into the other house in 2003.  Notwithstanding that the driveway had been between the houses for the entire time Neighbours P had occupied their property, they went ahead in November, 2016 and built a fence down the middle of the driveway, just inside their own property line.  Of course, they were still able to use the driveway with the fence in place because they had sufficient space on their side.  On Neighbour E's side, a retaining wall was in place and the space between that wall and the fence was insufficient to allow him to use the driveway.

As noted above, the actual property line ran down the middle portion of the shared driveway.  Neighbour E brought an application for an order recognizing his right to use the full width of the (previously) shared driveway and requiring Neighbours P to remove their fence.  Neighbour E claimed that he had a prescriptive easement (one that arises through use over a period of time) over the driveway.  At issue was whether Neighbour E's enjoyment of the driveway (and that of his predecessors in title) had been with the permission of Neighbours P (and their predecessors in title).  In order for an easement to arise by prescription, the use of the land must be without the permission or objection of the owner of the land involved. 

To succeed in his claim, Neighbour E had to show that the owners of his property had used the shared driveway for a period of at least 20 years prior to 1996 (when the lands were converted into the Land Titles System, which no longer permits the creation of easements by prescription), with the knowledge of the neighbouring landowners, and without their objection or permission.  While Neighbour E had evidence showing such use prior to 1996, he had to deal with the fact that a previous owner had entered into an agreement in 1980 in which each neighbour (predecessors in title to the current owners) had given the other a right to use the shared driveway, and had agreed to share expenses, for a period of 21 years less a day.  Did this agreement mean that use of the driveway was with permission and could not, therefore, give rise to a prescriptive easement?  If an easement had been established prior to 1980, did the agreement cancel the easement out?

Justice Gomery found that the agreement did not erase the prescriptive easement that she found to have existed prior to the agreement made in 1980.  She reasoned that where parties neglect to record an easement on title, that does not defeat the claim for the easement where the Court finds that it exists.  Likewise, the failure by the parties to have recognized the pre-existing easement in the 1980 agreement did not extinguish the pre-existing prescriptive easement.  Justice Gomery ruled in favour of Neighbour E.

Read the decision at: E et al. v. P et al.

Friday, May 11, 2018

Normal Farm Practices Protection Board dismisses application by landowner whose farm tenants clear-cut trees

A corporate landowner in Grey County applied to the Normal Farm Practices Protection Board for a ruling that the County's Forest Management By-law restricted a normal farm practice.  The landowner was effectively seeking a ruling that would eliminate a charge that had been laid against the landowner under the By-law after the landowner's tenants cleared a large portion of the landowner's property that was covered "with a young ash tree stand".  The landowner contended that the clearing operation was a normal farm practice.

Neither the tenants nor the landowner had obtained a minor exemption or permit under the Forest Management By-law, which was required for the clearing work.  However, the Board could make a ruling under the Farming and Food Production Protection Act, 1998 that the By-law did not apply to the clearing operation on the basis that it was a normal farm practice carried on as part of an agricultural operation.  The Act provides that no municipal by-law applies to restrict such a practice.

The Board had three issues to determine:
1.      What is the specific practice the Applicant claims is being restricted by the by-law?
2.      Is that practice a normal farm practice in the circumstances of this farm operation?
3.      If the practice is a normal farm practice, is it restricted by the Forest Management By-Law No. 4341-06?

On the first issue, the specific practice in question in this case was the clear cutting of trees from the landowner's property to permit land to be farmed. 

On the second issue, the Board noted that the landowner, the Applicant, had the onus of proving that the clear cutting was a normal farm practice in the circumstances of its specific farm operation.  Here the landowner's case failed.  The Board found that the landowner failed to prove on a balance of probabilities that the tree cutting was a normal farm practice.  The only witness for the landowner, the corporation's president, submitted no evidence that the clear cutting was a normal practice or innovative technology.  And no expert evidence was presented on that issue either.

In the absence of any evidence, the Board dismissed the application.

Read the decision at: 759501 Ontario Limited v Corporation of the County of Grey.

Friday, April 27, 2018

Court orders sale of farm property, rejects co-owner's request to split up the land

In Ontario, the Partition Act allows a co-owner of property to apply to the Court to break up the co-ownership.  If two or more parties own a piece of land, and one wants out, that co-owner is generally entitled either to an order dividing the property itself or, more often, an order requiring the sale of the jointly held property and the division of the proceeds.

In a recent decision of the Ontario Superior Court of Justice, two former brothers-in-law were in court disputing how their co-ownership of a 100-acre farm parcel should be ended.  The property consisted of 64 acres of agricultural land, and 36 acres of woodlot.  Brother-in-law O made the application to the Court for an order to sell the property and divide up the sale proceeds.  Brother-in-law M lived part of the year in a small house on the woodlot portion; he asked the Court to divide up the land itself.  M proposed that he receive the 36-acre woodlot along with a continuing interest in the 64-acre balance.  The 64-acre section would then be sold with O receiving the largest portion of the proceeds of sale.

As is the case in most partition applications, the Court ordered that the entire property be sold and the proceeds of sale divided between the two co-owners because the land could not be reasonably partitioned.  Firstly, the municipality would impose restrictions on the land if it was severed that would affect the value of the land.  Secondly, M's proposal would result in a forced sale by O to M, something that the Court does not have jurisdiction to grant.  Thirdly, M's proposal would compel the two co-owners to continue, at least for a time, in an "ongoing, untenable relationship".  Avoiding that situation is the purpose of the Partition Act.

The Court also ordered that O's costs of the application be payable out of M's share of the proceeds from the sale of the property.

Read the decision at:  O v. M.

Monday, December 18, 2017

Court decides ownership interest in land had been transferred to Railway; ownership did not revert to surrounding owners when railway discontinued

What happens when a railway is abandoned or discontinued?  More specifically, what happens to the rail line property itself?  In a recent decision, the Superior Court in Ontario had to decide whether a Railway had acquired the land for its now discontinued rail line as a full fee simple parcel (ownership of the land) or simply as an easement or right-of-way.  The line had been acquired in 1871 and discontinued in 2002.  In 2004, the Railway agreed to sell the rail line land to the County in which the line was located.  The neighbouring landowners, the successors in title to the original landowners from whom the rail line land had been acquired, challenged the sale.  They took the position that the Railway had acquired nothing more than a right to use the land for a railway; once the railway was discontinued, the land reverted to the neighbouring owners and could not be sold to the County.

The case came to court because the County alleged that the neighbouring landowners had interfered with the County's attempted use of the land (to be incorporated into a recreational trail).  The neighbouring owners intended to use the land for agricultural purposes, and made a counterclaim for a declaration that they were the rightful owners of the land.  The question was whether the original grant in 1871 was a grant of a fee simple interest in the land or of something less, such as a limited grant of rights to use the land.

Registered in 1871 in the Land Registry was a "Conveyance of Line of Way".  As stated in the conveyance, in consideration of the payment of $345.80, the original owners did "hereby ... grant and confirm to the [Railway Company], its successors and assigns for ever" an 8.67 acre portion of the owners' property.  Was that registration sufficient to transfer ownership of the land, such that no interest in the land would revert to the original owners or their successors?  The Court decided the issue on a motion for partial summary judgment brought by the neighbouring landowners.

Justice Grace reviewed the applicable railway legislation in place at the time of the conveyance and determined that the conveyance was a transfer of the fee simple ownership of the land:
The statutory provisions applicable in this case are, in my view, similar to those considered in Lowe.  As long as the acquisition of real property was for a purpose related to the establishment, maintenance and/or operation of a railroad, Canada Southern was statutorily empowered to acquire a fee simple interest in land.  The company could do so by negotiating an agreement with a land owner or in the event of an unwillingness to sell, through a process akin to expropriation. 
Although the conveyance document itself did not specify that fee simple ownership had been "sold" to the Railway, that was the effect of the language in the document in the context of the applicable legislative regime.  

And Justice Grace did not accept the alternative argument of the neighbouring landowners that, even if a fee simple ownership interest in the land had been transferred, that interest would be subject to reversion in the event that use of the rail line was discontinued.  There was no language to that effect in the conveyance document.

Read the decision at: Corporation of the County of Oxford v. Vieraitis.

Thursday, December 14, 2017

Private Prosecution by Neighbour over Boundary Tree - Tree By-law Conviction Upheld on Appeal

Disputes between neighbours about boundary trees are not uncommon; private prosecutions by neighbours against neighbours, especially concerning boundary trees, are uncommon.  In a recent decision, Justice Libman of the Ontario Court of Justice upheld a lower court conviction obtained on a private prosecution with respect to a violation of the Forestry Act, R.S.O. 1990, c. F-26.  One neighbour contended that the other neighbour cut down a shared Norway maple tree without consent, which is generally a requirement of Section 10(3) of the Forestry Act.  He brought forward a charge against his neighbour in the Provincial Offences Court.

Although there was a permit or Certificate of Exemption issued by the City of Toronto for the removal of the tree (granted on the basis of concerns that the tree posed a hazard), the permit made it clear that the determination of the ownership of the tree was the responsibility of the party applying for permit.  In other words, the permit itself did not relieve the applicant (the neighbour who wished to cut down the tree) of any responsibilities he might have at Common Law or through legislation like the Forestry Act.

And although there are cases in which a neighbour might remove a tree without the other neighbour's consent. such as a case where the tree is causing a nuisance or where the removal is needed urgently and consent cannot be obtained in a timely manner, Justice Libman found that this was not such a case.  Where it was already well known that the neighbours opposed the removal of the tree, the other neighbour, permit or not, could not simply go ahead and have the tree removed.  For these reasons, the appeal from the conviction was dismissed.

The penalty that had been imposed by the trial justice was a fine of $5,000. 

Read the appeal decision at:  Gross v. Scheuermann.

Read the trial decision at: R. (ex rel. Scheuermann) v. Gross.

Read the sentencing decision at: R. (ex rel. Scheuermann) v. Gross.

Thursday, August 31, 2017

Claim for contamination damages against MOECC allowed to proceed

In September, 1990, an oil spill occurred on a property owned by Shell.  The spill released approximately 9,000 litres of oil, and clean-up measures were undertaken.  Nearly 23 years later, in the spring of 2013, a neighbouring landowner whose property was 100 feet away from Shell's property became aware of the spill.  The landowner had the soil and groundwater on his  own property tested for contamination;  testing confirmed that his property was contaminated with petroleum and that the source of the contamination was the Shell property.

The landowner has since sued the Ontario Ministry of the Environment (now the "MOECC") for negligence on its part in the clean-up of the original Shell spill.  The landowner alleges that the MOECC is liable for damages because it "decided to get involved in the oil spill on the Shell property, made the decision as to where the excavation of contaminated should stop, erred in failing to ensure that the contaminants were contained; as a result the plaintiff’s property became contaminated; and the plaintiff sustained damages."

In response to the lawsuit, the MOECC brought a motion to strike the claim against it on the basis that it is "plain and obvious" that there is no reasonable cause of action that can be sustained against the MOECC.  The argument by the Ministry was that it owed no duty of care to the neighbouring landowner.  The Ministry argued that it was under no duty to perform any of the tasks described in the Environmental Protection Act, as they were discretionary only.  Therefore, any failure to perform those tasks could not form the basis of a negligence claim.

In deciding the motion, Justice Ray of the Superior Court of Justice accepted that the powers of the MOECC under the Act are discretionary, but ruled that the fact that the powers were discretionary did not preclude a finding that the MOECC owed the neighbouring landowner a duty of care.  As noted by Justice Ray:
Once the [MOECC] embarks on a course of action (whether obliged to do so under a legislative scheme, or has chosen to do so under discretionary powers) the [MOECC] is obliged to carry out that course of conduct without negligence.  There is then a sufficient proximity for the basis of a private law duty of care.
The MOECC's motion to strike was dismissed and the negligence claim against the MOECC is allowed to proceed.

Wednesday, July 26, 2017

Supreme Court dismisses First Nation's appeal of Enbridge Line 9 Reversal

The Supreme Court of Canada released its decision today in the Chippewas of the Thames First Nation (COTTFN) appeal of the National Energy Board ("NEB") approval of the Enbridge Pipelines Inc. Line 9 Reversal Project.  The Court has dismissed the appeal on the basis that a federal board or tribunal can, under certain conditions, provide the process through which the federal Crown discharges its duty to consult with First Nations.  In this particular case, the Court found that the NEB process, in which the COTTFN participated, was sufficient to discharge the Crown's duty.

Read the decision at: COTTFN v. Enbridge and NEB et al.