ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
NIJOLE ARDAVICIUS
Plaintiff
(Respondent)
- and -
MARY KAIRYS AND JULIUS KAIRYS
Defendants
(Appellants)
- and -
IVAN GRBAVAC
Third Party
(Respondent)
Nijole Ardavicius in person
Joseph Markin for the Defendant Appellant
Julius Kairys In person
HEARD at Toronto: April 20, 2009
janet wilson J.:
The Appeal
1The defendants/appellants, Mary and Julius Kairys are neighbours of the plaintiff Nijole Ardavicius and her tenant, Ivan Grbavac. They appeal the Small Claims Court judgment of Winer D.J. dated December 18, 2006, granting the plaintiff $6,300.00 plus interest and costs. This sum represents the costs incurred by the plaintiff to build a retaining wall between the properties.
Background Facts
2The plaintiff has lived in her house since 1986. The appellants bought the house next door in 1992. The grade of the plaintiff’s property is higher than the appellants’.
3Starting in 2000, a dispute arose over the fencing between the properties because the plaintiff refused to help pay for a new fence. The appellants brought in a fence viewer, who determined that the existing fence was adequate.
4In 2001, the plaintiff noticed that her backyard near the fence was sinking in parts. The plaintiff arranged for a small retaining wall to be built for $1,500 but alleged that the appellants had deliberately removed soil from their side of the fence, causing changes to the lateral support of her land. The appellants blamed this change on natural erosion owing to the difference in grade between the properties, since the respondent’s land was one-and-a-half feet higher than the appellants’.
5In 2003, the appellants decided to erect the privacy fence, and causing further changes to the lateral support to the plaintiff’s property. These changes required a second, more substantial retaining wall to be built by the plaintiff at a cost of $6,300.00.
6The disagreement about the fences and the subsidence of the plaintiff’s land became so acrimonious that it resulted in instances of threats and vandalism, causing the police to be called on several occasions.
7The matter came before Winer D.J. when the plaintiff sued the appellants for the cost of the two retaining walls, and for punitive damages. The appellants issued a counterclaim, which included a claim for malicious prosecution after a charge of mischief was laid against Mr. Kairys by the plaintiff, but not pursued by the Crown.
8Both the plaintiff and the appellants filed facta before this court acting as self-represented litigants. On the morning of the appeal, Mr. Joseph Markin appeared on behalf of the appellants. During argument, Mr. Markin raised for the first time an issue that was not raised in the factum of the appellants, that an action for loss of support of land is not available where the land is not in its natural state. I heard argument on all issues, but allowed the parties to file supplementary submissions to deal with this new issue which was raised before me without the benefit of submissions based upon the relevant case law.
9I will therefore respond to all the issues raised.
Sufficiency of Reasons
10The appellants argue that the reasons for judgment do not make it clear why the credibility findings were made against them, and suggest that the reasons are not sufficient. There is no merit to this argument. The reasons are clear, and the trial judge heard evidence from 16 witnesses over a period of four days. When there was a conflict in the evidence between the parties, the trial judge preferred the evidence of the respondents. He was entitled to do so.
11As explained above, this case has a lengthy and bitter history between warring neighbours, involving calls to the police and criminal charges, as well as this proceeding. The trial judge was discrete but clear in his findings of credibility, and his findings are fully supported by the evidence. The Supreme Court of Canada is clear that credibility findings should be afforded the greatest deference, and judges are not expected to provide precise written explanations for the process of determining credibility: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 28.
Dismissal of claim for malicious prosecution
12The trial judge dismissed the appellants’ claim for malicious prosecution. He concluded that the appellants had failed to provide proof to meet the elements of the test of malicious prosecution as outlined in Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170 at 192. The appellants claim that the trial judge erred by applying a subjective test, rather than a subjective-objective test, in determining whether the plaintiff had reasonable and probable cause to believe the appellants had committed the mischief alleged.
13As the trial judge states, malicious prosecution is a difficult tort to prove. He concluded that the plaintiff and her tenant “honestly and reasonably believed” the appellants were guilty. He noted that “the trial, covering a decade, took three days, sixteen witnesses, and many exhibits. There was a thorough airing of grievances and incidents. These parties have been nasty to each other”. From the language of the reasons and the evidence he considered, it is clear to me that Winer D.J. applied a subjective-objective test and found sufficient evidence to support the reasonableness of the plaintiff’s belief. The appellants have therefore failed to prove that the trial judge erred in dismissing the claim for malicious prosecution by applying the wrong test.
Arguments with respect to the findings of fact
14In the appellants’ factum, the findings of fact are challenged. There is no merit to these arguments. The trial judge heard the evidence and made findings of fact which are fully supported by the evidence. Deference is owed by an appellate court to findings of fact made by a trial judge, and an appellate court should not intervene unless there is a palpable and overriding error. Stein v. The Ship "Kathy K", 1975 146 (SCC), [1976] 2 S.C.R. 802 at 808; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 10. There is no such error in this case.
The right to lateral support of abutting land
15The trial judge found that the plaintiff was entitled to recover the cost of building a retaining wall which she was required to construct due to the appellants’ undermining of the support to her property.
16The following are the relevant findings of fact and law of the trial judge:
I conclude that the defendants are liable to the plaintiff in nuisance, negligence, and trespass for causing the loss of support, undermining, and seepage of earth necessitating the building of the retaining wall. The first wall wasn’t very effective. I award $6300.00 against the defendants I award no damages for stress. There is a short letter from a family physician, but this aspect was not fully developed. Litigation in itself is stressful.
The case of Monroe v. Emerson is applicable 1992 838 (B.C. S.C.). In that case the slope of land was also from the plaintiff’s property to the defendant’s. The defendant excavated on their lands causing an even steeper slope. Wetmore J. stated at page 2 of the report as follows:
The law is clear that an owner of land has an easement of what is usually called lateral support to the boundaries of his property to the extent that the natural state of the land adjoining provided. The removal of that support becomes actionable when damage occurs to the dominant lands…
The court awarded as damages the cost of the building a retaining wall.
In the case of Masciolli v. Betteridge et al. 1965 231 (ON SC), [1965] 1 O.R. 627 per Moorehouse J. a similar conclusion was reached, but on the basis of nuisance. At page 3 of the Quicklaw report there is a quotation from a decision of Schroeder J. as follows:
Broadly speaking, nuisance is a wrong done to a man by unlawfully disturbing him in the enjoyment of his property, and the wrong is in some aspects analogous to trespass.
At page 5 of the report there is a quotation from Watson B.
The same rules of law apply in such a case as to the right of lateral support of adjoining land, which is not an easement. If by digging, the adjoining land is let down, the right of compensation is on the ground that the adjoining owner could not use his own land to the prejudice of his neighbour, not on the ground of disturbance of an easement.
As mentioned above liability of the defendants in this case can also be founded on the basis of negligence and trespass.
17As noted above, the appellants argued that recovery for loss of support is barred where the plaintiff’s land is not in its natural state. I would dismiss this ground of appeal.
18Firstly, if the appellants wished to make this argument, they should have done so before the trial judge. The cases referred to by the appellants involve situations where the nature of the land, and whether it was in a natural state, was a clear issue in the trial.
19Secondly, there was sufficient evidence before Winer D.J. to find that the plaintiff’s land was in its natural state. The plaintiff testified that her property was as she had purchased it in 1986. The trial judge accepted the plaintiff’s evidence.
20Since there was evidence to support the conclusion that the land of the plaintiff was in its natural state, the respondent had a right of support as an incident of her property right, and no easement was necessary. Loss of the right is actionable in nuisance: Anne Warner La Forest, Anger & Honsberger Law of Real Property, looseleaf, 3d ed., (Toronto: Canada Law Book, 2008) at §17.20.40(a); Mascioli v. Betteridge-Smith Construction Co. Ltd., 1965 231 (ON SC), [1965] 1 O.R. 627-636 (H.C.J.); Boyd v. Toronto (City), [1911] O.J. No. 143, 23 O.L.R. 421 (H.C.J. (Div. Ct.); Hunt v. Peake (1860), 70 E.R. 603 (Q.B.).
21The trial judge reached his conclusions based first on the loss of lateral support caused by the appellants’ actions, but also reached the same conclusions with respect to the remedies of negligence or trespass. These alternative conclusions are also supported by the evidence.
22For these reasons the appeal is dismissed.
Costs
23As the plaintiff/respondent is self-represented there should be no order as to costs.
JANET WILSON J.
RELEASED:
COURT FILE NO.: 14/07
DATE: 20090608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
NIJOLE ARDAVICIUS
Plaintiff
(Respondent)
- and -
MARY KAIRYS AND JULIUS KAIRYS
Defendants
(Appellants)
- and -
IVAN GRBAVAC
Third Party
(Respondent)
REASONS FOR JUDGMENT
JANET WILSON J.
RELEASED: June 8, 2009