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.

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.

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.

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.