COURT OF APPEAL FOR ONTARIO

CITATION: Knuston v. Guilbeault, 2013 ONCA 630

DATE: 20131017

DOCKET: C56929

Hoy A.C.J.O., Laskin and Tulloch JJ.A.

BETWEEN

Martin Clifford Knuston and Dorothy Aileen Knuston

Plaintiffs (Respondents)

and

Marcel Guilbeault, Marc Guilbeault and Claudette Guilbeault

Defendants (Appellants)

Don Morris, for the defendants (appellants)

Andrew Baerg, for the plaintiffs (respondents)

Heard and released orally: October 8, 2013

On appeal from the judgment of Justice R.P. Boissonneault of the Superior Court of Justice, dated January 25, 2012.

ENDORSEMENT

[1] The appellants appeal the trial judge’s award of damages to the respondents for damage the appellants caused to the respondents’ property.

[2] The parties own adjacent cottages. The trial judge found that the appellants destroyed trees and foliage on the respondents’ property by cutting a road on the wooded property line between the appellants’ and the respondents’ properties without permission and by altering a watercourse on the appellants’ property. The alteration of the watercourse on the appellants’ upstream property had two other consequences. It changed the course of water on the respondents’ property and resulted in an extensive deposit of sand and silt on the respondents’ property.

[3] The respondents ultimately did not seek the costs of removing the sand and silt deposited on their property. The appellants’ insurer paid the respondents $90,000 to cover the costs of cleaning up the sand and silt and the respondents signed a release in favour of the insurer.

[4] The trial judge awarded the respondents damages in the amount of $42,439.15 (the “Tree Damages”) for the destruction of trees and foliage, specifying that this amount was to cover cutting and removing dead tree stumps, applying fill and topsoil, and installing cedar hedging to replace the trees and foliage that had been destroyed. The trial judge noted that installing cedar hedging was less costly than attempting to replace the trees that had been destroyed.

[5] The trial judge awarded a further $42,369 (the “Water Damages”) to cover the costs of realigning the watercourse on the respondents’ property, constructing a berm and putting a layer of topsoil back on the foreshore and around the berm.

[6] The appellants’ principal arguments are that: 1) the trial judge’s reasons are insufficient because they do not permit appellate review; 2) the trial judge erred by not concluding that the release signed by the respondents in favour of the insurer precluded the respondents from recovering the Water Damages; and 3) the trial judge erred in his calculation of the Tree Damages and the Water Damages.

[7] We do not give effect to the first ground of appeal. Read in conjunction with the record, the trial judge’s reasons are sufficient to permit review by this court.

[8] Nor do we give effect to the second ground of appeal. The release signed by the respondents specifically provides that, “… it does not include damages for the destruction of trees, the reconstruction of the stream, and building of the berm around the streambed as alleged in [this action].” The Tree Damages and Water Damages were awarded in respect of this excluded damage.

[9] We do, however, agree that the trial judge erred in his calculation of both the Water Damages and the Tree Damages.

[10] In calculating the Water Damages at para. 250 of his reasons, he may have included the $9,750 net of taxes to add more topsoil and the $2,700 net of taxes to remove dead trees and stumps quoted by Ron Lauzon at p. 2 of his report. Based on the report of Ron Lauzon, which the trial judge indicated he accepted, the Water Damages should be $26,455 plus applicable taxes, and not $42,369.

[11] We also agree that the $29,894.15 amount referred to by the trial judge in para. 248 of his reasons is incorrect. It should be the $21,000 amount estimated by Mr. Warner, whose evidence the trial judge said he accepted.

[12] Accordingly, the Tree Damages should be a total of $33,475, comprised of the $21,000 estimated by Mr. Warner plus the $9,775 and $2,700 at p. 2 of the Lauzon report, plus applicable taxes.

[13] The total damages are, accordingly, $59,930 comprised of the $26,455 plus $33,475, plus applicable taxes.

[14] The appellants are entitled to their costs of this appeal fixed at $10,000 all inclusive.

“Alexandra Hoy A.C.J.O.”

“John Laskin J.A.”

“Michael Tulloch J.A.”