Introduction

1The appellant Krzysztof Conrad (“Conrad”) appeals from the judgment of Deputy Small Claims Court Judge R. Rossi wherein he dismissed his claim for damages to his fence. The deputy trial judge did not go on to assess damages in light of his finding dismissing Conrad’s claim. However both counsel on appeal agree that the claim was to recover the costs of repairing the fence. His repair invoice from his contractor, in the amount of $5,040, was filed as an exhibit. Conrad was represented by counsel at trial (not Mr. MacKenzie).

2The respondents are Massoumeh Jinchi and Jamshid Malik (“Jinchi”). The respondents were self represented at trial.

3At the conclusion of the trial on January 29, 2010 the Deputy Small Claims Judge reserved his judgment and requested that both parties make submissions on legal issues. Conrad made submissions through his counsel and the deputy judge issued his judgment on March 31, 2010.

4Conrad sets out various grounds of appeal in his Notice of Appeal. However the grounds for appeal as argued are captured in paragraph 20 of his factum: “It is respectfully submitted that the trial judge erred in his application of the law of nuisance”.

5Conrad seeks the following relief:

That the judgment of the Deputy Small Claim Court Judge be set aside;
That judgment be granted against the respondents in the amount $5,040 plus interest; and
That Conrad be granted costs of the appeal.

THE FACTS

The Facts

6A brief overview of the facts will help to put this appeal in context. Conrad is the owner of a commercial property in Richmond Hill. Jinchi and Malik are the owners of abutting property which is used for commercial and residential purposes. The property is divided by a concrete fence that is about ten years old. It is a substantial fence made up of concrete posts filled in with concrete panels stacked horizontally by way of tongue and grove joints.

7The deputy judge accepted the evidence of Conrad that a section of the fence had been damaged. After hearing the evidence he made the following finding:

I find on a balance of probabilities that the damage to the first panel was caused by a force of some kind applied from the defendant’s property to the upper portion of the fence.

8A review of the deputy judge’s decision indicates that it was the plaintiff’s theory that the damage was caused by the defendants’ snow plough operator striking the fence while clearing snow. The plaintiff’s theory of how the damage was created was rejected by the deputy judge based on the evidence before him. As he stated a paragraph 2 of his decision:

I do not accept that theory there is no credible evidence that the tractor caused the damage. Moreover, the sole operator of the tractor (who is also a tenant on the defendants’ property), gave uncontradicted evidence that he did not hit the first section, that he would not have come close to the fence, nor was it was possible for his tractor to have caused such damage. I accept his evidence, and find that his tractor did not cause the damage.

9With respect to the issue of negligence the trial judge stated at paragraph 3:

As to the alleged negligence of the defendants, the cause of the force is completely unknown. I cannot make a finding on the evidence as to who caused the damage, or when or how it occurred, or whether it was caused by an intentional act or by accident, or whether it was a result of an act of vandalism or vengeance, or whether it could have been reasonably prevented.

THE POSITION THE APPELLANT

Position of the Appellant

10The appellant argues that the deputy judge erred on his application of the law of nuisance. In his factum the appellant raises the following assertions:

a. Nuisance is not the same as negligence;

b. To prove nuisance an aggrieved party does not have to prove negligence; and

c. The case law on nuisance does not require the appellant to prove who caused the damage. It also does not require that the appellant prove that the respondents were negligent.

POSITION OF THE RESPONDENTS

Position of the Respondents

11The respondents’ position is that the appellant has not established one of the key elements with respect to the law of nuisance: the issue of causation. As the respondents set out in their factum at paras. 7 and 8:

It is respectfully submitted that the cause of the force which resulted in the fence being damaged being completely unknown, the learned trial judge could not find on the evidence that the respondents’ use of their land, or any act or omission of the respondents had caused or had anything to do with the damage to the fence in question.
It is therefore respectfully submitted that having considered the entire body of evidence before him the learned trial judge correctly determined that the appellant had failed to discharge his burden to establish (on a balance of probabilities), or that it was the respondents’ use of their land or other act or omission that had caused the damage to the appellant’s lands or otherwise interfered with the appellants use thereof.

STANDARD OF REVIEW

Standard of Review

12I am satisfied that the findings of fact of the deputy judge are owed a high degree of deference with respect to findings of fact. On this appeal the issue is the deputy judge’s determination on the issues of law based on the facts as he found them. I am satisfied that the standard of review is correctness with respect to issues of law.

DISCUSSION

Discussion

13Both counsel made reference to Gatta Homes Inc. v. St. Catharines (City) 2009 66383 (ONSC). At para. 176 Taliano J. reviewed the basic principles with respect to the tort of nuisance and stated at para. 176:

The Supreme Court in Schenck v. Ontario 1987 21 S.C.C., [1987] 2 S.C.R. 289 set out the specific elements of the modern tort of nuisance. These are:

a. Substantial interference with or damage to the plaintiff’s lands;

b. A causal link between the interference and the plaintiff’s lands and the use of the defendant’s lands; and

c. A finding that the use of the defendant’s land is unreasonable having regard to locality in question, the utility of the defendant’s conduct and the extent of the interference with the plaintiff’s interest.

14The respondent relied on Murray v. Langley Township 2010 B.C.J. No. 128 (B.C.S.C.). In that decision Adair J. reviewed the law of nuisance and stated at para. 36:

Causation is a pre-requisite to a finding of nuisance. As set out in Linden and Feldthusen, Canadian Tort Law (8th ed., 2006), at p. 569:

The onus of proof that the defendant caused an unreasonable interference with the use and enjoyment of the plaintiff’s land rests on the plaintiff, but once that is shown, the onus is on the defendant to establish that the use of the land is reasonable.

15Professor Klar’s text on tort law, Klar, Tort Law, 4th ed., (Thompson Carswell, 2008), also contains a discussion of private nuisance. The responsibility of defendant maybe more nuanced depending on the extent of the damage caused. As the author states at p. 730:

Whereas the absence of negligent conduct on the defendant’s part is not a factor when substantial damage or injury has been caused, it is a legitimate consideration in cases involving less serious interferences with the plaintiff’s use and enjoyment of his land. As well, as it has been previously discussed, reasonable foreseeability of the type of injury caused by the activity is a requirement of a successful nuisance claim.

As the author continues at p. 731:

The persons who are liable for the nuisance are those who are conducting the offensive activities in question or those who are responsible for them.

16At the request of the deputy judge the appellant, through counsel made submissions on the issue of negligence and nuisance. It is clear that the deputy judge dealt with nuisance after making conclusions that there was no negligence. After reviewing the principles of nuisance in his decision he acknowledged the importance of causation and stated: “The court then makes it clear that: ‘causation is a pre-requisite to a finding of nuisance’” [Emphasis in original]

17In his decision the deputy judge concluded his consideration of nuisance by saying:

The cause of the force which resulted in the fence being damaged is completely unknown, and I cannot find on balance of probabilities that it had anything to do with the defendants’ use of their land, or was the result of any act or omission by the defendants.

18He made reference to the plaintiff’s written submissions and stated “however, I find such submissions to be wholly speculative, and I am not satisfied on a balance of probabilities that this is what caused the fence to be damaged”.

19In assessing the merits of any appeal of a small claims court decision I remind myself about the overarching policy as expressed in the Courts of Justice Act, R.S.O. 1990 c.C.43 at para. 25:

The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as considered just and agreeable to good conscience.

CONCLUSION

Conclusion

20The deputy judge heard the evidence at trial and made factual findings. He reserved his decision until he had received and reviewed legal submissions from the plaintiff through the plaintiff’s counsel. He issued a lengthy and thoughtful written decision, made findings of fact, and considered the law both of negligence and nuisance. He made a finding that the plaintiffs at trial had failed to establish a key element with respect to the law of nuisance; that is causation. He dismissed the plaintiff’s claim both on negligence and nuisance grounds.

21I am not satisfied that the deputy judge made an error in law which would require appellant intervention. The appeal is therefore dismissed with costs to the responding parties.

COSTS

Costs

22Both counsel agreed that costs should be fixed in the amount of $2,000 all inclusive for the successful party. It is ordered that the respondents be awarded costs of $2,000 all inclusive payable by the appellant forthwith.

MULLIGAN J.

Released: January 12, 2012

C O R R I G E N D A

Corrigenda

Page 5, (second quote in para. 15), second line now reads: conducting the offensive activities in question or those who are responsible for them.

Conrad v. Jinchi, 2011 ONSC 6985

Case Summary

Introduction

THE FACTS

The Facts

THE POSITION THE APPELLANT

Position of the Appellant

POSITION OF THE RESPONDENTS

Position of the Respondents

STANDARD OF REVIEW

Standard of Review

DISCUSSION

Discussion

CONCLUSION

Conclusion

COSTS

Costs

Corrigenda

Conrad v. Jinchi, 2011 ONSC 6985

Case Summary

Introduction

THE FACTS

The Facts

THE POSITION THE APPELLANT

Position of the Appellant

POSITION OF THE RESPONDENTS

Position of the Respondents

STANDARD OF REVIEW

Standard of Review

DISCUSSION

Discussion

CONCLUSION

Conclusion

COSTS

Costs

Corrigenda