CITATION: Davis v. Sutton, 2017 ONSC 2277

COURT FILE NO.: DC 16/101/00

DATE: 20170411

ONTARIO

DIVISIONAL COURT

BETWEEN:

Brian Douglas Davis

Appellant/Plaintiff

– and –

Peter Sutton

Respondent/Defendant

A. Smits for the Appellant/Plaintiff

A. Butcher for the Respondent/Defendant

HEARD: March 31, 2017

REASONS FOR JUDGMENT

[On Appeal from the Judgment of Deputy Judge Thompson dated November 4, 2016]

RICCHETTI J.:

BACKGROUND

[1] This is a dispute between neighbours concerning cedars along their common backyard lot line. The neighbours could not agree on whether or what portion of the cedars should or could be cut to permit the erection of a fence on the Defendant’s property. The dispute became very acrimonious. The Defendant cut some of the cedars on the lot line and on his side of the property. The dispute got worse.

[2] Throughout the history of the dispute, City officials, the police, private charges, lawyers and experts became involved. The dispute even resulted in the harassment of third party labourers.

[3] When the Plaintiff was unable to get the City, police or private charges to deal with the issue, the Plaintiff commenced this action in Small Claims Court.

[4] The Plaintiff claimed that the Defendant committed nuisance, negligence and trespass. The Plaintiff claimed damages in the amount of $25,000.

[5] The evidentiary portion of the trial, relating to liability, was heard on April 13, 2016 before Deputy Judge Thompson. The learned trial judge adjourned the trial to September 7, 2016 should evidence on damages be necessary.

[6] On September 7, 2016, the learned trial judge dismissed the Plaintiff’s action.

[7] On November 4, 2016, the learned trial judge released reasons for the Judgment (“Judgment”).

[8] The plaintiff appealed.

[9] On March 31, 2017, the appeal was heard by this court. The appeal was dismissed with costs. Counsel were advised that written reasons would follow. These are those reasons.

THE FACTS

[10] The Appellant/Plaintiff, Brian Davis (“Davis” or “Appellant”) purchased 499 Walnut Crescent in 2008 (“Davis Property”).

[11] There were cedars growing along the backyard lot line between the Davis Property and 495 Walnut Crescent. This is not a cedar “hedge” but rather cedars which had been allowed to grow very large and tall over many years. The cedars were planted on or near the lot line - some on one side completely, some on the lot line. Some of the trunks of the cedars grew straight up. Others grew at an angle. A survey sets out exactly where the cedars were located.

[12] After Davis moved into the Davis Property, Davis cut back the cedars along the lot line by as much as 8 feet. The cedars were overgrown. Davis did this, presumably, to better enjoy his property. During this cutting, Davis also cut down one cedar on the Sutton Property (i.e. over the lot line).

[13] Davis enjoyed his property until 2014.

[14] The Respondent/Defendant, Peter Sutton (“Sutton” or “Respondent”) purchased the property at 495 Walnut Crescent in February 2014 (“Sutton Property”). The Sutton Property adjoins the Davis Property. It is along the backyard lot line that the subject cedars grow.

[15] In July 2014, Sutton’s daughter decided to have her spouse’s nephew; a 6-year-old with special needs, move in and live at the Sutton Property. Sutton decided that he needed to fence his backyard to ensure the safety of this child while playing in the backyard.

[16] Sutton advised Davis he wished to cut some of the cedars on his side of the property, including some trees on the lot line, to install a fence in his backyard. Some of the cedars on the lot line had grown out very wide extending significantly onto Sutton’s Property. Some cedars grew at angles across the lot line. One of the exhibits is a photograph which shows the cedars before any cutting. To some persons, the cedars might be considered "rustic". To others, the cedars might be considered "wild and overgrown".

[17] There is no dispute that a fence remotely on or near Sutton Property lot line would not be possible without cutting of some cedars. The Appellant's counsel submitted that this court doesn't know exactly where the cedars were before cutting and the impact on the fence. The Appellant has two problems with this submission. First, the learned trial judge found that the fence on the Sutton Property would have to be built 6 - 8 feet within the lot line - there was evidence at trial to this effect that the learned trial judge accepted. Secondly, looking at the photographs of the cut cedars S2, S3, S4 and S5, the trunks of those cedars grew at an angular level greatly intruding on the Sutton Property.

[18] Initially, Davis was prepared to let Sutton cut the cedars which went on to Sutton's airspace. For some unknown reason, Davis' position changed very quickly and very negatively to objecting to the cutting of any cedars.

[19] Early in the dispute, Sutton proposed that, after the fence was constructed, he would at his expense have new cedars planted on Davis’ side of the lot line. This was not acceptable to Davis. Davis would have none of this.

[20] Davis was prepared to take any steps to prevent cutting of any cedars or Sutton erecting a fence. For example, Davis made it clear that, even if a fence was erected near the lot line (say a foot within the Sutton property), Sutton would still have to maintain the property (such as cut the grass on the one foot strip) on the other side of the fence but Davis would not permit Sutton onto his property to maintain this strip of property. Davis was doing and saying whatever he could to prevent Sutton from cutting any cedars or the erection of a fence.

[21] Threats of litigation, hiring surveyors and calls to the municipal authorities ensued. Communications between Davis and Sutton were extensive– not always civil.

[22] By the end of July 2014, it was clear that there would be no compromise or agreement with Davis to cut any cedars.

[23] When Davis’ consent was not forthcoming to any reasonable compromise, Sutton hired a company to cut the cedars on Sutton’s side of the lot line in September 2014. The company eventually left the job site as a result of the harassment and threats by Davis.

[24] Sutton decided to cut the cedars himself. There were attempts to stop the work. There were threats. Davis called the police but no charges were laid against Sutton. When that didn’t work, Davis privately laid charges. Those charges were dismissed.

[25] Sutton cut down some of the cedars himself. It is clear that Sutton only cut cedars which were in his "air space". In some cases, the cedar’s trunk grew on the lot line but the trunk angled over onto Sutton's Property. The survey showed the location of the tree base in relation to the lot line. The survey also shows that the cuts were all done within Sutton's side of the lot line.

[26] Sutton constructed the fence along the lot line between the two properties. Despite the fact Sutton or his workers did not step onto Davis’ property, this work also became contentious. At one point Davis complained that one portion of the fence had been constructed 4 inches too high.

[27] When Davis' complaints to the City, the police and private charges did nothing, Davis commenced this action.

THE FINDINGS OF DEPUTY JUDGE THOMPSON

[28] The learned trial judge made the following findings of fact relevant to this appeal:

• The cedars on the lot line had not been trimmed or maintained. They were not in a straight line. Some cedars originated on the Davis Property but the trunks leaned into Sutton’s Property at a substantial angles;

• While initially agreeing that Sutton could cut the cedars in his airspace, Davis’ final position was that no cedars could be cut or trimmed;

• Photos of the cedars and the survey show that the cutting done by Sutton was all within his Property – in Sutton’s airspace;

• Sutton’s evidence was truthful and reliable whereas Davis’ evidence was self-serving and unreliable. Davis demonstrated a total lack of neighbourliness and selfishness;

• Sutton did his best to work out a neighbourly solution with Davis but his efforts were rebuffed over several months, more and more aggressively;

• Sutton would have had to build the fence 6 – 8 feet within his property unless the cedars were cut;

• Cutting the cedars by Sutton was his only solution given the adamant nature of Davis’ response;

• The cedars cut were in Sutton’s airspace;

• The cedars constituted a nuisance to Sutton;

• The Forestry Act did not apply as “to hold each neighbour responsible to obtain the consent of a neighbour who is unwilling to give consent, no matter what the obstacle, when the trees seriously infringe into the neighbour’s property makes no sense".

THE APPELLANT’S ISSUES

[29] Davis raises five issues on appeal:

a) The Forestry Act;

b) The cedars were not a nuisance;

c) Sutton was not entitled to cut the trees unilaterally;

d) Sutton was negligent; and

e) Damages.

ANALYSIS

General Comments

Small Claims Court Reasons

[30] The Small Claims Court is a court established to determine issues of fact and law in a summary fashion. Reasons for Judgment in Small Claims court matters are not expected to meet the level of detail expected in Superior Court. What is required is that the Reasons be sufficiently clear to permit judicial review on appeal. See Maple Ridge Community Management ltd. V. Peel Condominium Corporation No. 231, 2015 ONCA 520 at paras 33-36.

Standard of Review

[31] Davis submits that the issues to be determined involve questions of law or mixed fact and law making the standard of review correctness.

[32] This court is satisfied that, aside from the question of law whether the Forestry Act applied, the balance of the issues raised by the Appellant are findings of fact which the Appellant seeks to set aside. The legal issue as to the application of the Forestry Act when a boundary tree constitutes a nuisance was specifically decided by Justice Perrell in Freeman v. Cooper, 2015 ONSC 1373. Freedman determined that where a boundary tree constitutes a nuisance the Forestry Act does not apply to requiring the consent of both owners of the boundary tree. This court agrees with the reasons and conclusion set out by Justice Perrell in Freedman

[27] Under s. 10(2) of the Forestry Act: “every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.” In the circumstances of the immediate case, all this means is that although the tree is on Mr. Cooper’s property, he is a joint owner of the tree with Ms. Freedman.

[29] It seems that Ms. Freedman is of the view that she needs court approval to remove the tree because she and her agents would be committing an offence under s. 10(3) of the Forestry Act if she used the permit for the tree’s removal, which was issued by the City of Toronto. This view is based on the circumstance that under s. 10(3) of the Act, the consent of both Ms. Freedman and Mr. Cooper is apparently required for any removal of the tree.

[30] I disagree. I read s. 10(3) of the Forestry Act as simply not applying to the owners of the boundary tree. The owners remain liable one to another in accordance with the common law. In my opinion, s. 10(3) of the Forestry Act simply does not apply in the circumstances of this case.

[31] It is presumed that legislation preserves rather than changes the common law. It is presumed that the legislator will not change the common law without expressing its intentions to do so with irresistible clearness: Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324, 2003 SCC 42 at para. 39; Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610 at p. 614.

[32] The common law applies to the circumstances of this case.

[33] Nuisance is a common law tort, and it is a form of strict liability that is not concerned with fault or misconduct. Rather, it is a social ordering law based on imposing responsibility or legal liability when an owner’s use of his or her property unreasonably interferes with the use and enjoyment of land by others. Generally speaking, whether the landowner’s unreasonable use was intentional, negligent or innocent is of no consequence if the harm can be categorized as a nuisance. What is unreasonable reflects the ordinary usages of people living in society, and determining unreasonableness involves balancing competing rights of landowners. See Pugliese v. Canada (National Capital Commission) (1977), 17 O.R. (2d) 129 (C.A.), varied 1979 32 (SCC), [1979] 2 S.C.R. 104; Sedleigh-Denfield v. O'Callaghan, [1940] 1 A.C. 880 (H.L.).

[34] The law of nuisance also imposes responsibility on a landowner for the natural state or conditions of his or her property if the owner is aware or ought to have been aware that the state of the property is a nuisance to neighbours: Sedleigh-Denfield v. O'Callaghan, supra; Schoeni v. King, [1944] O.R. 38 (C.A.); Doucette v. Parent, [1996] O.J. No. 3493 (Gen. Div.); Hayes v. Davis, [1989] B.C.J. No. 2381 (B.C.S.C.); Leakey v. National Trust for Places of Historic Interest or Natural Beauty, [1980] 1 All E.R. 17 (C.A.); Guinan v. Ottawa (City), 2010 ONSC 807.

[36] Under the law of nuisance, property owners are entitled to resort to self-help remedies to eliminate a continuing nuisance caused by roots and branches from trees, or the court may order that the nuisance be abated or removed

[33] With respect to findings of fact made at trial, the onus is on an appellant to show there was an absence of evidentiary basis for the trial judge’s finding. In other words, the onus is on the Appellant to show that the learned trial judge made a palpable and overriding error of fact. It is not sufficient for the Appellant, as it did in this case, to show that there was other conflicting evidence which the learned trial judge could have accepted.

[34] It is clear from a review of the evidence before the learned trial judge that there was a clear evidentiary record for the trial judge's findings of fact. For example, the Appellant submits that the learned trial judge made palpable and overriding errors of fact in determining that the Respondent had no solution but to cut the cedars. A review of the comments, written communications and actions of the Appellant from July 2014 through August 2014 leave no doubt that there was ample evidence the Appellant would not consent to any cutting of the cedars. The learned trial judge’s conclusion that the Respondent had no choice but to proceed to cut the cedars is well founded and available to her on the evidence.

Bradley's Report

[35] The Appellant submits that the learned trial judge failed to consider Mr. Bradley's Report ("Report"). Mr. Bradley says in his report that the "hedge appears to be in good health and structural condition and has been well-maintained". The difficulty with this submission is that when the Report was tendered there was an objection. Mr. Bradley was not qualified as an expert. Mr. Bradley gave no evidence. The Report was marked as an exhibit because Mr. Bradley might testify later on the issue of damages. Mr. Bradley never testified. In these circumstances, no weight could be put on the contents of the Report.

The Forestry Act

[36] S. 10(2) of the Forestry Act provides:

(2) Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.

[37] The trunk of the tree is the part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage. If the trunk of the tree crosses the lot line, the tree is common ownership. In Hartley v. Cunningham 2013 ONSC 2929, [2013] O.J. No. 2304 (Sup. Ct.), (upheld at 2013 ONCA 759) the court determined, where there is common ownership of a tree, consent of all the owners is required for removal or maintenance. In that case, the ownership of the boundary tree was at issue.

[38] There is no dispute that some of the cedars cut by Sutton were “boundary trees”. In the normal course, the consent of all owners of the boundary tree is required cut or maintain the boundary tree. In this case, Davis did not consent to the cutting of the cedars.

[39] However, that does not end the discussion.

[40] In Freeman v. Cooper, 2015 ONSC 1373, the court determined that the Forestry Act did not apply where the boundary tree constituted a nuisance. In Freedman, the owner sought a court order to cut a boundary tree being concerned that, without the consent of the neighbour, Freedman might be charged under s. 10(3) of the Forestry Act for cutting a boundary tree. The court concluded that the section of the Forestry Act did not apply but rather the common law applied. Applying the common law of nuisance, the court found that the boundary tree in question was a nuisance and, pursuant to common law, the neighbour had the right to abate the nuisance but cutting the tree.

[41] Accordingly, if the “boundary” cedars were a nuisance, the Forestry Act continues to specify that the boundary tree(s) is jointly owned but the Forestry Act does not prohibit a party from taking self-help (or seek a judicial declaration to this effect) where the boundary tree constitutes a nuisance and one co-owner has refused to consent to its removal. In this case the learned trial judge found that the cedars constituted a nuisance and the Forestry Act “does not apply in this case”. Having found that the cedars constituted a nuisance, the trial judge’s conclusion by the learned trial judge is consistent with the applicable legal authorities.

[42] The Appellant relies on Centrum Land Corp. v. Institute of Chartered Accountants of Ontario (H.C.J.), for the proposition that neither party has the property right to cut boundary trees. However, Centrum, the party seeking the injunction to stop the ICAO from cutting of the boundary trees, agreed that the law of nuisance would permit the cutting of the boundary trees:

There is therefore a proprietary interest, albeit not absolute, which the plaintiff may assert against the defendant in those trees. That right is not absolute, in that the law of nuisance would permit the cutting down of limbs or roots in appropriate circumstances.

[43] The court in Centrum concluded:

Although there is a dearth of authorities on the proprietary rights of landowners with respect to trees growing on boundary lines, the respective rights of adjacent landowners are fairly well established in so far as trees growing on their respective properties are concerned. It would seem to me to be a fair analysis of the problem in this case to examine the situation that the Institute would be in if the trees which will be affected by its construction project were entirely on Centrum's land. To put it another way, I would have thought that Centrum could have no greater right in the trees on the boundary line than it would have if the trees were completely on its land.

If this were the case, the Institute would clearly be entitled, in my opinion, to remove any branches or roots of such trees which interfere with the peaceful enjoyment of its property, including the right to build on it within an inch of the boundary line: see 4 Hals., 4th ed., pp. 381-3, paras. 873-874. If the tree is so close to the boundary line that the cutting back of the offending branches or roots is likely to jeopardize the ability of the tree to survive the cut, I was referred to no authority which suggests that the adjacent owner must then suffer the nuisance. I agree with the disposition of Graham v. Da Silva which imposed no such limitations in similar circumstances.

[44] The court in Centrum dismissed the injunction application. The boundary trees could be cut down by ICAO. While Centrum dealt with the Trees Act (which only applied to trees planted with the consent of adjoining owners) which has been superseded by the Forestry Act, the legal conclusions of the judge applies in this case as the court in Centrum determined that the Trees Act did not apply to the circumstances of that case. The court applied common law principles granting ICAO the right to continue with its actions to cut down the boundary trees. The reasoning in Centrum is consistent with the reasons of Justice Perrell in Freedman.

[45] In my view, a co-owner of a boundary tree causing a nuisance to the other co-owner cannot use an unreasonable refusal to consent to cutting the tree to prevent the abatement of the nuisance.

Were the boundary Cedars a nuisance?

[46] In order for there to be a nuisance, the interference with a property owner’s use and enjoyment of their property must be substantial and the interference must be unreasonable. See Antrim Truck Centre v. Ontario (Transportation) 2013 SCC 13 paras 18-19.

[47] The law of nuisance seeks to balance the competing rights of owners - one neighbour to do what he wants and the right of the other neighbour not to be interfered with. See Yates v. Fedirchuk, 2011 ONSC 5549 at para 6 and 27.

[48] One of the issues raised by the Appellant is that the learned trial judge failed to identify the specific legal test for nuisance and negligence. The learned trial judge did not specifically articulate the test for nuisance. However, the court is satisfied that, while the learned trial judge did not specifically identify the legal test for nuisance – the appropriate test was nevertheless applied. The facts as found by the learned trial judge established a significant interference which was unreasonable to Sutton's use and enjoyment of his lands. The learned trial judge found that:

a) In 2008, the Appellant had trimmed the same cedars, including cutting at least one cedar on the Respondent’s side of the lot line, when he acquired his property;

b) The cedars did not show any signs of regular trimming or maintenance. The cedars "looked unkempt and not well maintained";

c) The Respondent had a reasonable reason for wanting to fence his property – the safety and security of a 6 year old special needs child;

d) The cedars "seriously infringed" on Sutton’s Property. A fence could only be constructed 6-8 feet within Sutton's Property lot line without cutting the cedars; and

e) The Respondent acted reasonably throughout and made reasonable proposals to replace cut cedars. Whereas, the Appellant took various positions which were not clear. The Appellant was unreasonable and aggressive in his position objecting to any cutting of the cedars;

[49] The above facts were well supported on the evidence. On any reasonable consideration of the above facts, the loss of 6-8 feet of the Respondent’s backyard due to erecting a fence inside the existing cedars would be a substantial interference with the Respondent’s reasonable use and enjoyment of his property. Equally, the position, angles, size, and condition of the cedars caused the substantial interference to be unreasonable.

[50] The Appellant, in its factum, attacks the learned trial judge's findings of fact that the cedars "seriously infringed" the Respondent's Property in what is clearly an attack on the trial judge's findings of fact simply because there was other evidence which could have resulted in different findings. This submission has no merit. There was ample evidence to support the learned trial judge's finding. This court cannot say that the finding the cedars "seriously infringed" the Respondent's Property was unreasonable or unsupported by the evidence. Quite frankly, it appears to be a very reasonable conclusion based on the trial evidence.

[51] The Appellant refers to Gallant v. Dugard, 2016 ONSC 7319 where the alleged nuisance caused by the boundary tree was dropping walnuts on the plaintiff's property during several weeks a year. Gallant has no application to the facts of this case where the inability to put up fence because of the cedars would substantially and unreasonably interfere with the Respondent's use and enjoyment of his backyard all year long. Sutton had every right, which was reasonable, to use his property for the safety and enjoyment of the 6-year-old child.

[52] The Appellants challenges the learned trial judge’s findings that the Appellant’s consent for any cutting would not be forthcoming. While the Appellant challenges this fact, the evidence clearly supports the learned trial judge's finding, including the Appellant's own words on July 26, 2014: "face it, no trees are coming out or as your "elegant" wife put it "this is going to happen"... sorry, but it’s not".

[53] The Appellant submits that boundary trees should only be considered a nuisance where there is imminent danger, has caused damage or in cases of emergency. This court sees no reason why a special category limiting common law nuisance to the suggested situation(s) should be created for boundary trees. There are no authorities, or in my view any good reason, in support of the Appellant's position.

[54] This court finds no error in the learned judge’s conclusion that the cedars constituted a nuisance.

Timing of the Conduct Considered

[55] The Appellant submits that the learned trial judge erred in looking at the Appellant’s “post cutting” conduct. In my view, the learned trial judge considered the Appellant’s conduct prior to September 2014 as direct evidence of the Appellant's position and the Appellant’s "post cutting conduct" as circumstantial evidence of the reasonableness of the Appellant’s position. I must add, there was a substantial amount of evidence prior to September 2014 to base a finding that the Appellant’s position was unreasonable in contrast to the Respondent’s attempt and desire to work out a reasonable solution to the nuisance. To put it another way, the Appellant's conduct after the cedars were cut was consistent with the Appellant's position before cutting - no cedars could be cut. Period.

[56] The Appellant also submits that the court should consider the Respondent's intended use and enjoyment when he purchased the property rather than his intended use after he had purchased the property and the six year old child was to come to live at the Sutton Property. This submission makes no sense. A person's use and enjoyment of a property may change over time. The issue is whether the intended use and enjoyment was reasonable and whether the alleged nuisance significantly and unreasonably interfered with the proposed reasonable use. In this case, the proposed intended use was to put up a fence so that the Respondent and others could safely enjoy his backyard. That is a reasonable use. For the reasons set out above, the boundary cedars were a nuisance.

[57] The Appellant suggests that the Respondent's sensitivity was not considered by the learned trial judge. Quite frankly, I do not see the Respondent's sensitivity to be an issue given that he wanted to fence his backyard to protect a six year old with special needs and was prepared to accommodate the Appellant's sensitivity for the cedars by offering to plant more cedars at his expense. If anything, it was the Appellant's unreasonable lack of "sensitivity" which led to the dispute and this action. This is not a case where the Respondent had any "special sensitivity". The Respondent wanted a fence for good reasons and acted reasonably.

[58] The Appellant submits that the learned trial judge failed to consider such factors as the character of the neighbourhood. The difficulty that the Appellant has with this submission is that when he moved in, he cut the cedars on his side of the lot line to enjoy his backyard. Character of the neighbourhood appeared to have little importance then. But now, when the Respondent wants to do the same, the Appellant states wants to preserve the very same character of the neighbourhood – now that he has use of his backyard and the benefit of the cedars which encroach on the Sutton’s backyard. This submission is rejected.

[59] Similarly, putting the protection of trees ahead of abating a nuisance, makes little sense. Clearly, protection of trees is important but this factor must be balanced against the proposed use and enjoyment of the neighbour's property and the degree to which the trees constitute a nuisance.

Abatement

[60] The Appellant goes on to submit that the Respondent failed to properly abate the nuisance, an issue which the Appellant submits the learned trial judge failed to consider and decide. The Appellant submits that the Respondent could only cut the boundary trees without consent if there was an emergency, damage has occurred, the risk of harm was imminent and on notice.

[61] The Appellant relies on the above principles set out in Watson v. Charlton, 2016 BCSC 664 but the Appellant fails to recognize that the court in Watson did not make a decision on the issue of abatement since the parties had not had an opportunity to make submissions on the issue. See para 237 Watson.

[62] The Appellant also relies on Freedman and Legris. In Freedman, Justice Perell specifically found that self-help was a remedy available to abate the nuisance. See Freedman para 36. In Legris, there was no nuisance so that the issue of abating a nuisance was not decided by the court. See Legris para 17.

[63] The difficulty is the Appellant decided that he would not consent to the removal or trimming of any of the cedars. The City would not prevent the Respondent from cutting the trees. The Appellant would not consent. In these circumstances, the Respondent had no choice but to proceed to cut the boundary trees in the fashion that he did.

[64] If the court subsequently found that the boundary trees were not a nuisance, the Respondent would be liable to the Appellant for damages. If the court subsequently found that the boundary trees were a nuisance and the Appellant unreasonably withheld his consent, the Respondent would have no liability for cutting the trees. Why take the risk? The expense and years to get the matter to trial during which time the Respondent would be prevented from using and enjoying his property. This court cannot fault the Respondent from taking the unilateral actions he did in this case.

Was Sutton entitled to unilaterally cut the cedars?

[65] Paragraph 36 of Freedman is a complete answer to this submission.

[66] Sutton attempted to be reasonable and cooperative to obtain the consent of Davis to cut the cedars which infringed on his ability to erect a fence at or near the lot line. The learned trial judge found that Davis was unreasonable and would not consent under any circumstances. In these circumstances, Davis’ unreasonable position would have resulted in the following options to Sutton:

a) to construct a fence 6-8 feet inside the lot line; or

b) not construct a fence at all.

[67] The Appellant submits that the learned trial judge erred in finding that the Respondent's solution to cut the trees as he did was “his only solution". This court rejects that submission. The Appellant refused to consent; the trees were a nuisance. Essentially, the position taken by Davis makes little sense since it would permit the joint owner of a boundary tree to irrationally and unreasonably prevent the adjoining property owner from abating a nuisance.

[68] Davis submits that Sutton could have proceeded to obtain the consent of the court in legal proceedings. The difficulty with this suggestion is that essentially it would take years for the matter to get to trial, Sutton’s enjoyment and use of his property would have been significantly interfered with until trial, and as found by the trial judge, unnecessarily so.

Was Sutton negligent?

[69] The Appellant submits that the learned trial judge erred in failing to identify and apply the relevant duty of care analysis regarding the removal of the boundary trees. It is difficult to fully understand the Appellant’s submission. It would appear the Appellant is suggesting that, despite a nuisance, a duty of care was owed to him before the Respondent proceeded to cut the cedars. There is no authority supporting the Appellant's submission.

[70] The duty of care would be in the manner the boundary trees were removed not the fact of the removal of the trees. A duty of care or a breach of a duty of care to do what the law permits a person to do, is by itself, not an actionable tort.

[71] Essentially, if the Respondent was entitled to remove the cedars because they constituted a nuisance, and the removal was done without damage to the Appellant’s property (none is alleged) then it is difficult to understand what claim for negligence the Appellant seeks to advance. The Appellant can hardly complain he didn't have notice or given an opportunity to cooperate reasonably to deal with the nuisance.

[72] To make matters worse, the Appellant submits that the alleged damage caused by the alleged negligence is the damage caused by the removal of the boundary trees. This court acknowledges that, if there was no nuisance, then the Respondent’s actions might be actionable in negligence, breach of the Forestry Act, trespass, conversion or other causes of action. Conversely, if the Respondent was entitled to remove the boundary trees at law, there can be no negligence regarding the removal of the boundary trees themselves.

[73] The Appellant submits that Legris v. Mudge sets out the standard of care that one neighbour owed to the other regarding the boundary trees, namely, that they are to act reasonably with one another. The difficulty the Appellant faces with this submission is that the learned trial judge expressly found that the Appellant was acting unreasonably and the Respondent was acting reasonably. As a result, even if there was a duty owed to Davis, the Respondent complied with the standard by acting reasonably and it was the Appellant who failed to comply with the standard of care.

[74] The Respondent only cut the cedars in his airspace without damaging or setting foot on the Appellant's Property. This court finds no basis for a finding of negligence against the Respondent.

[75] There is no merit to this ground of appeal.

What are the damages?

[76] Regardless of the outcome of this appeal, evidence was not heard on the issue of damages. This court was not in a position to assess and award damages. If the appeal had been allowed, a new trial would be required to deal with damages.

CONCLUSION

[77] Davis’ appeal is hereby dismissed.

COSTS

[78] Prior to the commencement of submissions on this appeal, counsel agreed that, if either party was completely successful, an appropriate cost award would be $15,000.

[79] Since Sutton was entirely successful, costs of $15,000 plus HST are awarded to the Respondent payable forthwith.

Ricchetti J.

Released: April 11, 2017