Shared water, good neighbours?: Costs Decision

Here's the cost outcome for the shared waterline case: $153,225 awarded to the Plaintiff.  75% was payable by the vendor of the property.  25% payable by the neighbour who sought a declaration of a prescriptive easement.  The Plaintiff had claimed total costs of the matter in an amount of more than $300,000.

Read the costs decision at: Hanisch v. McKean 2.

Judge: "Shared water does not necessarily make good neighbours ..."

Justice DiTomaso's remark seems pretty obvious - shared boundaries and shared resources are quite often the subject matter of litigation.  In this case, the Plaintiff organic farmer purchased a farm from a retired dental surgeon in 1998.  In 2007, she learned from a neighbour not only that the neighbour's water was contaminated with e-coli bacteria, but also that the neighbour's water was sourced from the Plaintiff's farm.  The judge noted: "This was surprising and disturbing news to her."

 

As a result of the discovery, the Plaintiff sued the retired surgeon for fraudulent or negligent misrepresentation.  She also sought a declaration against her neighbour that the neighbour has no prescriptive easement to use the waterline that originates on the Plaintiff's property and services the neighbour's property.  The neighbour counterclaimed for a declaration that she does have a prescriptive easement and for an injunction preventing the Plaintiff from doing anything that would interfere with the quantity or quality of the water running through the (alleged) easement.

 

At trial, a number of factual findings were made, including:

• neither the dental surgeon nor anyone on his behalf disclosed the shared waterline to the Plaintiff at any time prior to the purchase of the farm in 1998
• another farmer who had looked at purchasing the property was not told about the waterline either, and testified that had he known of it, he would not have purchased the property
• the Plaintiff received absolutely no notice of the shared waterline from the vendor prior to closing, and the first notice she had was from the neighbour in 2007
• surveys of the farm did not show the shared waterline, and would not have assisted a prospective purchaser or realtor in understanding that there was a shared water system
• the assertion by the vendor's real estate agent that notice of the waterline was not included in the property listing because there was no room for it was "incredible"
• the waterline to the neighbour's property was in use since October, 1967
• the evidence of the dental surgeon was that he consented to the use of the waterline from the time he purchased the farm property in 1975

The Court dismissed the claim by the neighbour for a prescriptive easement on the basis that use of the water line had been by consent (during the period relevant to determine the easement - in this case, 1967 to 2000, when the land was converted to Land Titles) and on the basis that the use was not "open and notorious".  The waterline was not visible and could not be discovered by the Plaintiff except from disclosure by another party. 

 

The neighbour's claim for an injunction was also dismissed.  There was no evidence of irreparable harm to the neighbour if the injunction was not granted - she could drill her own well for water. 

 

Justice DiTomaso then ruled that the waterline was a latent defect in the property and that the vendor, the retired dental surgeon, "misrepresented the nature of the property for sale by failing to notify or inform [the Plaintiff] that the water supply from the Farm supplied properties and residences to the north by way of the waterline."  The judge did not find that the misrepresentation was fraudulent (i.e. intended to mislead), but did find it was negligent and gave rise to liability.  The Plaintiff was awarded $25,500 in damages plus interest.

 

Read the decision at: Hanisch v. McKean.

Court declines to require farmer to forfeit tractor over driving convictions

The Crown brought an application seeking forfeiture of a leased New Holland Tractor and Loader after the lessee was convicted of two counts of driving while disqualified under the Criminal Code.  One of the offences occurred when the lessee was observed by the OPP operating the tractor in question on a roadway.  The lessee was stopped for suspicion of alcohol consumption and because the OPP officer was aware that the lessee's driver's licence was subject to a prohibition order.  The lessee failed a breathylzer test, but before he could be arrested, he ran into a nearby bush.  He was ultimately caught.

 

At Court, all parties conceded that the tractor was "offence related property" and could be subject to forfeiture to the Crown as part of the penalty against the offender.  The father of the lessee participated in the hearing on the basis that he held an interest in the tractor, having been a partner of the lessee in a farming operation and a contributor to the down payment on the lease.  The leasing company also participated, but did not take a position on the assurance that its interest in the tractor would be protected by the Crown in the event of a forfeiture.

 

On review of the evidence, the Court determined that the forfeiture of the tractor would be disproportionate in relationship to the "offence related property".  The Court said: "The item in question is an essential component of the operation of this family farm and is relied upon by [the offender's father] and his family in addition to the offender to perform all essential farming operations.  Since the seizure of this equipment, this farming operation ... has sustained a serious economic detriment.  A forfeiture of essential farming equipment will detrimentally affect, not just the offender, but the viability of this farm.  I cannot agree that a punitive impact of forfeiture on a legitimate enterprise such as farming was the intention of Parliament as being necessary in the public interest."

 

The Court also found that the farm tractor and its operation in the offence has no logical connection to the offence of driving while disqualified. 

 

The Application for Forfeiture was dismissed.

Read the decision at: R. v. Pendleton.

Court of Appeal upholds conviction for dangerous tractor driving

The appellant in this case before the Ontario Court of Appeal was convicted of dangerous operation of a motor vehicle (in this case, a tractor) under the Criminal Code.  The evidence at trial included the following:

• the appellant was driving a tractor at 30-35 kilometers per hour along a rutted gravel and dirt road, causing the tractor to bounce along the road;

• the appellant was driving in a deliberate manner, and appeared determined to return to his property, heedless of those who were in his path or were attempting to stop him;

• without slowing, the appellant drove the tractor through a narrow opening between two trailers, one of which was moving, barely missing both;

• the appellant drove toward a police constable, ignored his motions and shouts to stop, and drove within a few of meters of his vehicle before making an evasive manoeuvre to avoid it;

• he continued along the road at top speed toward another police constable, who feared for his own safety, to the extent that he nearly drew his own service revolver, before the appellant abruptly veered away at the last minute to avoid striking him;

• he drove up onto the narrow berm, adjacent to and above a third police constable in his cruiser, putting the officer in fear for his own safety, before the tractor did in fact roll off the berm; and

• the evidence of several witnesses, including the officers, who testified that the appellant’s driving caused them to fear for their own safety.

 

The Court of Appeal granted the appellant leave to appeal the decision from a summary conviction appeal judge because the appellant had been self-represented for that appeal (and may have misunderstood the procedure).  The appellant argued to the Court of Appeal that the trial judge was wrong to find that the appellant had the required mental element or intent (mens rea) for the offence charged.  He argued that the determination of the mens rea element required a determination of whether the manner of driving was a "marked departure" from the standard of care.  The appellant submitted that a lay person, lacking specialized knowledge of the operation of a tractor, is not able to appreciate the risks of operating a tractor in the circumstances or the measures a reasonable person would take to avoid them.  This, he said, would call for expert evidence.

 

The Court of Appeal disagreed.  It found that the risks of the appellant's driving and the means of avoiding those risks were "plain and obvious" and did not call for expert evidence: "While there may be cases in which expert evidence is required to establish the standard of care in the operation of a tractor and whether the accused's driving was a marked departure from that standard, this case is not one of them."  The appeal was dismissed.

 

Read the decision at: R. v. Clare.