Court File and Parties
COURT FILE NO.: C-650-13 DATE: 2017-06-27 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PATRICK ROBERT CLINE, ANNE CLINE and JEFFREY MICHAEL PATRICK CLINE Plaintiffs
Counsel for the Plaintiffs: J. Postnikoff
- and -
SUSAN ELIZABETH DRUMMOND Defendant
Counsel for the Defendant: L. Protopapas
AND BETWEEN:
SUSAN ELIZABETH (DRUMMOND) JOHNSON and CHRISTOPHER ST. CLAIR JOHNSON Plaintiffs by Counterclaim
- and –
PATRICK ROBERT CLINE, ANNE CLINE and JEFFREY MICHAEL PATRICK CLINE Defendants by Counterclaim
Counsel for the Plaintiffs by Counterclaim: L. Protopapas Counsel for the Defendants by Counterclaim: J. Postnikoff
HEARD: May 19, 23, 26, 29, 30, 31 and June 12, 2017
THE HONOURABLE MR. JUSTICE C.S. GLITHERO
REASONS FOR JUDGMENT
1These proceedings involve a protracted and acrimonious dispute as between neighbours in Kitchener.
2The plaintiffs, Patrick, Anne and Jeffrey Cline are the owners of 52 Hearth Crescent, although only Jeffrey Cline resides at that address.
3Susan Elizabeth Drummond owns the next door property at 46 Hearth Crescent and at all material times lived there with Christopher Johnson, now her husband, and is now Susan Johnson.
4The backyards of the two properties are separated by a fence. As between the street end of the fence and the sidewalk, the two properties each have a paved driveway. The driveways abut each other and are separated visually for most of the length by a paved sloped area, which runs slightly upwards from the lower Drummond driveway, to the higher Cline driveway.
5The main action was a claim by the Clines for adverse possession of part of the neighbouring driveway owned by Mrs. Johnson.
6The main action was settled by minutes of settlement signed by all parties except Jeff Cline on November 23, 2016. He finally signed on March 31, 2017. The result is that it was agreed that Mrs. Johnson owns the paved slope referred to earlier and small portions of the flat area of the Cline driveway. That sloped area is a focal point in terms of much of the dispute as between the parties and the counterclaims.
7As a result of the settlement of the main action, Patrick and Anne Cline are no longer parties to the counterclaim advanced by the Johnsons, or to the counterclaim advanced by them and their son.
8Accordingly, what is before me for trial are the counterclaim by the Johnsons as against Jeffrey Cline, and his counterclaim against the Johnsons.
9The Johnsons’ counterclaim is for general damages in the sum of $50,000 for harassment, nuisance, intimidation, invasion of privacy, intentional infliction of emotional distress and malicious prosecution. They also claim aggravated damages in the amount of $30,000, punitive damages in the sum of $20,000 and special damages estimated at $5,000. They also claim injunctive relief restraining the defendant from interfering with or obstructing their reasonable use of the disputed area of the driveways, and an injunction restraining Mr. Cline from all forms of communication with them.
10Jeffrey Cline counterclaims against the Johnsons seeking $200,000 in damages for invasion of privacy, nuisance and negligence, as well as an injunction restraining the plaintiffs from pointing video cameras at any portion of his property or taking any visual or audio recordings of he, his family or guests.
11The initial action was brought under the Simplified Procedure provided in Rule 76. Mr. Cline objected to proceeding under the Simplified Procedure set forth in Rule 76 because the Johnsons’ counterclaim was not compliant with Rule 76.02(1). Accordingly the action proceeded under the ordinary procedure.
12The accusations of wrongdoing are numerous, varied and exchanged between the parties in a crossfire manner. All three parties testified as did several witnesses. Many of those gave evidence which related to more than one accusation or issue.
13Mr. Cline has resided in the Cline home since June 30, 2000. The Johnsons have lived in their house since August 1, 2008, and the two of them were married on June 28, 2014. The Johnsons purchased a dog in November of 2010.
14Mrs. Johnson now works part-time as an office manager in a physicians’ group, but previously worked for 30 years as a director of customer services with Manulife and had 150 customer service representatives reporting to her. Mr. Johnson is currently the automotive services manager for a Canadian Tire store, but prior to February of 2012 worked for 8 years as a guard with Brinks Armoured Car.
15Jeffrey Cline has worked for Kitchener Utilities since October of 2004 and deals with water main and gas main problems. He works a regular shift but is sometimes on call and can be called out at any hour to attend to reported problems. When he is on call he brings home a City of Kitchener truck, which is equipped with a loud beeper system, which is engaged when the truck is in reverse, such as when he backs it out of his driveway.
16Credibility is a prime issue in this case. I think it best assessed after recounting in summary form the nature of the various allegations.
17It appears from Mr. Cline’s perspective that problems arose shortly after the Johnsons purchased their dog, and he began documenting them in February of 2011. The first contact between the parties evidencing any tension occurred in March of 2011, when Mr. Cline put a note in the Johnsons’ mailbox complaining about the barking of their dog.
18Exhibits 1 and 2 in this trial contain 746 pages of handwritten journal notes compiled by Mr. Cline between February 9, 2011 and April 11, 2017. These notes document, on almost a daily basis, various observations allegedly made by him, together with a running commentary by him containing his theories, his complaints and his opinions as to the Johnsons, the police, crown attorneys, justices of the peace, the Attorney General and others who in one way or another have had anything to do with this dispute.
The Dog Barking
19Mr. Cline testified that when the dog was a puppy it did not bark and didn’t bother him. His first noted concern about the dog barking was on February 9, 2011. A note complaining of the dog barking written by him and placed in the Johnsons’ mailbox was dated March 17, 2011 and complained that the dog had awakened him 16 times in the past 45 days. Mr. Cline testified that he has an irregular and poor sleep pattern as a result of his employment.
20The parties agree that in response to the note in the mailbox, the Johnsons obtained a collar for the dog. The collar emitted citronella when the dog barked and the collar was designed and intended to curb the barking. In their opinion, it did. Mrs. Johnson testified that aside from obtaining the dog collar, she and her husband have always been careful to try and be outside when the dog is outside so as to curb any barking. She testified that the dog only barks if it hears someone coming to the Johnsons’ door or a car stopping in the driveway and that even then the dog stops barking when one of them appears. Her evidence is that when the dog is let out of the house, other than when being walked by one of them, it is tied to a rope which does not permit the dog to go onto the Cline property, but does permit it to go into the Johnson backyard and onto the Johnson driveway. She identified a notice from the Kitchener by-law office dated August 27, 2011 relating to dog barking “disturbing the inhabitants” and directed that they keep the dog from barking in excess. No further proceedings were initiated to enforce the by-law, a copy of which was not provided to the court.
21Mr. Johnson testified that there had been no notice of any concerns about the dog barking until the note placed in his mailbox. His evidence is that they undertook dog training as well as buying the dog collar. His evidence is that the dog barking decreased. Mr. Johnson testified there are other dogs in the neighbourhood including, in particular, one which is usually outside of a home to the other side of Mr. Cline’s house and that that dog barks all the time.
22Mr. Cline testified that the dog’s rope was so long as to permit the dog to come right up to the side door of his house which opens onto his driveway. He claims that on one occasion Mrs. Johnson was on the driveway when her dog came and wrapped its rope around Mr. Cline’s legs and his evidence continues that Mrs. Johnson told him that he’d better learn to jump rope. He testified that on another occasion, Mr. Johnson was outside when his dog came to Mr. Cline’s side door and that he told Mr. Johnson about it. Mr. Cline’s evidence is that when the dog wrapped its rope around Mr. Cline’s leg he suffered rope burn on his legs and ankles and that those injuries bled and pussed for weeks or months and reopened every time he put his work boots on. He never sought any medical treatment. He confirmed that it was he who complained to the Kitchener by-law office about the dog barking.
23In his detailed daily notes for the six year period between February 9, 2011 and April 11, 2017, Mr. Cline noted the dog to be barking approximately 182 times, or approximately 30 times per year. He agrees that he has no photographs of the injuries alleged to have been caused by the dog’s rope.
24Karen Priebe was called to testify by the Johnsons. She is a registered nurse but for some time has been unable to work because of serious work related injuries. She testified that her first meeting with Mr. Cline occurred in January of 2011 when she was out walking and he asked her into his home. Her evidence is that she thought it was odd in that he began to question her about neighbours in such a way that she got the impression that he was trying to ascertain what she thought of the Johnsons, in terms of whether or not she would align with him against them. During this conversation she knew he felt the Johnson dog was barking too much. Her evidence is that she had no complaints about the Johnsons’ dog, although she lived right beside them on the opposite side of Mr. Cline. She felt that the Johnson dog was in fact quite quiet, more so than her own dog. She confirmed that there are lots of dogs in the neighbourhood, that the Johnson dog does not bark much, and that she has never shut a window because of the dog barking.
25Her evidence is that Mr. Cline told her that he did not like the Johnsons’ dog and that the Johnsons should watch out and be careful about their dog and that in her opinion he was saying that in a menacing way. She confirmed that she advised the Johnsons that she felt they should be worried about their dog being harmed as a result of the way Mr. Cline spoke about it. She indicated that her concern was about the dog possibly being poisoned or in some other way harmed, but agreed that Mr. Cline never expressly said that. On cross-examination she agreed that in giving evidence on an application for a peace bond, made by the Johnsons as against Mr. Cline, that on October 22, 2012 she testified that Mr. Cline had threatened to kill the dog and she agreed that, on that date in cross-examination, she indicated she had learned of the possible poisoning from the Johnsons. She testified that her present recollection is that we discussed it, but I agree I said in the transcript that the concern about poisoning emanated from the Johnsons.
26In the evidence at trial there was a discrepancy in the recollection of Ms. Priebe, as compared to that of Mr. and Mrs. Johnson. Whereas they remembered her as saying Mr. Cline threatened to poison the dog, she doesn’t recall saying that but rather recalls that it did come up in the conversation between she and the Clines, but more in the context of poisoning perhaps being a method that Mr. Cline would use to carry out the suggestion that he would harm the dog.
27Patrick Cline was called by his son to give evidence and in respect of the dog barking testified that he knew that it was an issue for his son but that it was not an issue to him.
28Betty Warren was called by Mr. Cline to give evidence. She testified that she is currently a friend of his, although admits they used to have an intimate relationship. She testified that she has seen the Johnsons’ dog on Mr. Cline’s driveway approximately six times and that one time she had to pick up her own dog in order to enter through Mr. Cline’s side door because the Johnsons’ dog was right there at his door. She also testified that she did not see the rope around the leg incident but saw the dog’s rope around Mr. Cline’s car. She also testified that she saw, initially, scabs on Mr. Cline’s ankle, and later scars in the same location, but also testified that the injuries she saw on his ankle were lower down than where it would be rubbed by his work boots and reopened as a result.
29Mr. and Mrs. Johnson both denied the rope around the leg allegations, maintaining that their dog was not permitted on the Cline property at any time and never went there.
Horn Blowing
30One of Mr. Cline’s prime complaints was that Mr. and Mrs. Johnson would blow their horn frequently and disrupt his sleep. The explanation from both Mr. and Mrs. Johnson is that both of their vehicles, when locked using the key fob which came with the vehicle, would emit a short beep of the horn. One of the videos played in evidence captured one such event. The noise emitted by the vehicle is, in my assessment, not very loud, is of very short duration, and might properly be termed a “chirp”. It is no louder than the noise similarly emitted when many of the current automobile models are locked using a remote. At one point Mr. Johnson had the fob for his vehicle re-programmed so as to eliminate the chirp. It eventually started chirping again. He did not bother returning to the dealer again. Whereas Mr. Cline testified that these sounds were created by the Johnsons by way of a deliberate attempt to harass, annoy and intimidate him, the Johnsons deny these allegations and maintain that they are caused by what in today’s day and age is normal vehicle locking behaviour and occurred no more often, and no more noisily, than it is reasonable to expect in any neighbourhood where vehicles are parked.
31There is no evidence from anyone else as to having heard this horn chirping or being bothered by it.
32Mr. Cline in his journal notes recorded approximately 140 such horn chirping incidents between December 19, 2011 and April 11, 2017, some 64 months, or approximately 2.2 times per month. His notes indicate the time of day these incidents would occur, and on reviewing them I note that all are within normal waking hours for most people, although Mr. Cline’s evidence is that he sometimes would be called out at night, and was a troubled sleeper.
Trespass by Parking
33Mr. Cline complains that both of the Johnsons would frequently park on his driveway. His journal notes are replete with countless such incidents. The Johnsons deny it. Mr. Cline sought to substantiate his claims by pointing to photographs in evidence, which he claimed showed tire treads on the sloped paved portion which extends part of the length between the flat parts of the Johnson and Cline driveways. On examining the photographs and videos available, in my opinion that is impossible as the tire could not be in such an angle as to leave a flat tread mark on the slope in question, and at most could leave some kind of a rub mark if the portion of the tire where the sidewall and the tread meet travelled over the sloped portion.
34Moreover, the survey as obtained by the Johnsons, and more importantly the minutes of settlement as concluded between the parties, particularly the last page thereof, shows that the entire sloped portion and portions of the flat part above the slope are agreed to be the property of Mrs. Johnson. Accordingly, where Mr. Cline may have believed that any use of the sloped paved portion was a violation of his property line, it is now established and agreed that it was not. Those constant complaints by him are accordingly ill founded.
Trespass by Person
35Mr. Cline complained that Mr. Johnson had left fresh footprints in the snow on the Cline driveway as he allegedly walked from his own property to the front of Mr. Cline’s property. Mr. Cline involved the police who spoke to Mr. Johnson. Mr. Johnson produced to the police surveillance video footage showing the newspaper boy following the same path and testified that he routinely did so. At the time the officer spoke to Mr. Johnson, the officer did not have a specific date, but the December 29, 2015 video produced by Mr. Johnson, showing the paperboy crossing the driveways, was in the same time period. When this information was relayed by the police to Mr. Cline, he then indicated that the specific date was January 1, 2016. Mr. Johnson initially agreed with a police request to look through his video footage to see if he had anything for that date relevant to the complaint. He subsequently advised the police he was sick and tired of having to respond to ill-founded complaints by Mr. Cline and he was not prepared to spend any more time looking through days of tapes to find footage relevant to the perceived wrongs. In testimony it is clear that he also was suspicious that Mr. Cline picked a date, after being advised by the officer of the December 29th footage. Mr. Johnson advised the officer in writing that he was not prepared to review more hours and hours of videos but that the police were welcome to do so. Mr. Johnson, and Mrs. Johnson deny ever walking on the Cline property.
36Mr. Cline took photographs of the footprints on the driveway. There was no evidence with respect to the size of the footprint or how it would correspond to any footwear of the Johnsons in terms of size or tread. Mr. Cline did not see who left the footprint.
37In Mr. Cline’s evidence there were complaints that the Johnsons, in alighting from one of their vehicles on the passenger side, would step out onto his driveway. He also complained that in brushing the snow off their vehicles, Mr. or Mrs. Johnson would brush snow onto his driveway. The Johnsons deny doing so, explaining that if in alighting from their vehicle they stepped on the paved slope between the driveways, they were in fact stepping on Mrs. Johnson’s property. They deny brushing snow as alleged, indeed testify to backing the car down the driveway so as to be able to safely brush it off without so offending Mr. Cline, or even putting it out on the road to do so.
Particular Snow Clearing Incident
38A video was shown in court depicting an incident which occurred in January of 2017 and was captured on the surveillance camera mounted at the back corner of the Johnson home and pointed towards the driveways. Mr. and Mrs. Johnson are clearing snow. Mr. Cline comes out of his home and moved up and down the driveway as the Johnsons did. There is no audio. The Johnsons claim that Mr. Cline was taunting them with being afraid of him. Mr. Cline appears to come right to the edge of the disputed property line. He appears angry and upset. Mr. Johnson agrees that he told Mr. Cline that if Mr. Cline crossed the line that he, Mr. Johnson, would defend himself. Mr. Johnson called 911 as he was afraid of Mr. Cline’s behaviour.
39Mr. Johnson denied the allegation of Mr. Cline that he had been banging his shovel on the driveway deliberately to annoy Mr. Cline before Mr. Cline came out of the house. He agreed that he could have preserved a portion of the video preceding that which was shown in court, which would have shown whether he banged the shovel or not. His evidence is that he didn’t save that part because he was not banging his shovel and at that point in time had no way of knowing that would be a complaint that Mr. Cline would make up.
The Boat Incidents
40Mr. Cline complained that the Johnsons would put their large boat on its trailer in their driveway in the spring and in the fall and that on one occasion they also put a dinghy on a trailer on their front lawn. He testified that these boats would be so placed for weeks. He complains that on occasion Mr. Johnson would have a beer while working on the boat in the driveway. He complains that on one occasion a beer bottle was left on the windowsill of the Johnson home on the side of the home facing his home. He claims that was a deliberate attempt to bait him because the Johnsons would have known that he previously had a problem with alcohol. He complains that on one occasion he observed a ratchet tool with a long handle in connection with the boat work and surmised that it could be used as a weapon. On one occasion, because the boat filled the driveway, Mr. Johnson parked overnight on the street and was ticketed as a result of a complaint by Mr. Cline, although no other neighbours parking on the street were ticketed.
41Mr. and Mrs. Johnson testified that indeed, for approximately two weeks in the spring and two weeks in the fall, they would have the boat in their driveway, so as to service it for summer use in the spring and before putting it away in the fall. Mr. Cline also complains about various sounds associated with working on a boat bothering him. All such complaints are within normal daylight hours.
42Mr. Cline complains that on one occasion in 2012 that Mrs. Johnson stood on his driveway while giving directions to Mr. Johnson as he backed the boat into the driveway. Her evidence is that she was standing on the top of the slope of the driveway which is her property. Mr. Cline testifies that she was standing squarely on his driveway.
The Tree Chopping Incident
43Mrs. Johnson testified that on October 23, 2011 they heard the noise of Mr. Cline chopping at tree roots in his backyard but close to the fence separating his backyard from the Johnsons, and that Mr. Cline was swearing while he was doing it and was visibly upset. The tree was on the Johnson property and was shaking in response to the chopping of the roots of the tree that had extended under the fence to Mr. Cline’s property. The trunk of the tree was up against a fence board on the Johnson side of the dividing fence, but did not affect the fence board on the Cline side of the property. A responding police officer advised Mrs. Johnson that it was a civil matter, no charges were laid, and the officer suggested the installation of surveillance cameras as being a way of avoiding the “he said – she said” problem that permeates neighborhood disputes of this type.
44Mr. Johnson gave evidence to the same effect as that of his wife. Mr. Johnson agreed in cross-examination that Patrick Cline had offered in approximately October of 2011 to remove the tree for him, but that he declined Mr. Cline’s offer. Mr. Johnson also testified that a few weeks after the root chopping incident he took the tree down himself as the leaves were changing colour and the tree was obviously in distress.
45Mr. Cline testified that on October 23, 2011, at approximately 9:00 or 9:30 a.m., he heard Mr. Johnson pull into his driveway, get out of his vehicle and chirp the horn four or five times, so Mr. Cline went into the backyard and started digging up the roots of his tree. He denied swearing. He testified he did so because he was frustrated by the behaviour next door. He agreed that the tree and its roots had caused no damage to his side of the property, but felt that it would as it continued to grow. He agreed that of the two officers who responded, the one who spoke to him told him that the tree was a civil issue.
The Flashlight Incident
46Mrs. Johnson testified that in March of 2012, she and her husband returned home from a hospital visit and Mr. Johnson took the dog into the backyard. She heard a commotion, went out, and saw Mr. Cline holding a flashlight by the lens end and brandishing it and that he was upset and told her to “shut up bitch”. She testified that she was frightened by his actions, and that closing a car door or locking it with a resulting chirp of the horn was just part of life.
47Mr. Johnson testified that this incident occurred on March 24, 2012 after they had returned from his sister’s birthday party. When he took the dog into his backyard, Mr. Cline opened his back gate and starting yelling and swearing at him and threatened to “punch my teeth down my throat” and was obviously extremely agitated. Mr. Johnson indicated he said something in response to the effect of “what’s your problem” at which point Mr. Cline told Mrs. Johnson “shut the fuck up bitch” and said to Mrs. Johnson that he needed complete silence. Mr. Johnson’s evidence is that he wanted to phone the police about this but did not, as his wife was in tears so he didn’t want to argue about it with her. This was prior to the installation of any surveillance cameras.
48Mr. Cline swore that this incident occurred on November 9, 2011 and that he had been asleep and was awakened when the Johnson horn honked. He came out of his sliding back door and told Mrs. Johnson to stop honking her horn, which caused Mr. Johnson to yell at him. He testified that Mr. Johnson asked what Mr. Cline had in his pocket, so Mr. Cline pulled out the flashlight and lit the lens end so that they could see what it was. He denies making any threats or swearing. He denied threatening to punch Mr. Johnson’s teeth down his throat. Mr. Cline’s journal notes contain no such entry for November 9, 2011, but indicate he was washing his dishes that night when he heard the horn honk. Mr. Cline’s journal notes show nothing for March 24, 2012.
The Surveillance Video Cameras
49Mr. and Mrs. Johnson installed four such cameras on their house in response to a suggestion by a police officer that it would be advisable. Her evidence is that two were placed in May of 2012 and the other two in July of 2012 and that each camera captured images which could be viewed, if one wished, on the Johnson television screen, with one quadrant showing what was being observed by each camera. The evidence is that one of the cameras showed the side of the property opposite to the Cline side and is of no significance. Her evidence is that none of the cameras have motion sensors in the sense of causing a camera to move, and that there are no outdoor microphones. She testified that she would only look at the video tapes if the police came and asked or called about some event complained of by Mr. Cline. She agreed in cross-examination that the camera mounted above the back porch showed the two driveways between the two houses, and that Mr. Cline’s side door can be seen beyond any parked cars but she denied that any person can be seen through the glass in his side door as there are curtains on the inside of that window.
50Mr. Johnson testified that the video cameras have no audio component and they were not set up to utilize any internet capability that such cameras may have, but rather were linked so as to be visible on the television in the house, with one quadrant of the screen reflecting what was being captured on each of the four cameras. His evidence is that initially two cameras were mounted but not made operable immediately. The second two cameras were then installed. One of the cameras, the one alleged to be the most serious violation here, pointed from the back corner of the Johnson home towards the street, showing the two driveways and beyond the Cline driveway, the side door of the Cline home. Mr. Johnson testified that that camera was initially mounted to the brick wall of his home but proved ineffective there because there was glare from the finish on the brick which distorted the picture. Accordingly that camera was moved to a position on the eaves and made operable. Later it had to be moved again as the eaves were replaced, but was reinstalled in approximately the same location. His evidence is that the other three cameras were never moved in terms of location, or adjusted to change the angle being captured on film. His evidence is that it would be possible to adjust the aim of the camera by undoing a nut on the machine and manually turning it up or down.
51His evidence is that these cameras operate on a loop system whereby after a camera has reached the limit of its storage facility the contents are erased automatically by being taped over. Mr. Johnson swore that the only time he looked at any of the hours of video coverage was when he thought it necessary to do so to assist in answering some complaint made by Mr. Cline with respect to some kind of activity that would be caught by one of the cameras. Once some footage had been taped over it was not recoverable. He denied that any of the cameras were moved, once they were mounted and made operational, other than the one corner camera being relocated as discussed above. He denied the allegation that the cameras were being re-aimed from time to time so as to show more of the Cline property. In terms of his ultimate refusal to provide more video footage of the alleged footprints in the snow incident to the police, he explained that he would have to view such footage as would be available on a real time basis and was just not interested in investing more hours to watch videotape over and above what he had already invested when looking and finding the portion on December 29th.
52Mr. Cline’s evidence is that the cameras were continually moved or refocused so as to show more and more of his house and then turned back to an original position for occasions when the police attended.
53Mr. Cline and his father, Patrick Cline, both testified as to the movement of the cameras and claimed to be supported in their evidence by several photographs taken of the cameras by a photographer standing in various positions. They have no photographs of the cameras actually being moved or re-aimed.
54The cameras apparently did have an infrared system, such that motion caused them to go bright in hours of darkness.
55Mr. Cline’s witness, Betty Warren, also testified that the cameras were regularly moved in terms of their focus.
56Constable Matt Halliday testified. He attended as a result of a complaint by Mr. Cline that the Johnsons were baiting him by means of their video surveillance cameras. He testified that he was told by Mr. Cline that if the police had not laid a charge of mischief against the Johnsons by July 29th that Mr. Cline would himself do so. The officer spoke to Ms. Johnson. He had not told her ahead of time that he was coming so that she would not know to move the cameras as was being alleged by Mr. Cline. He viewed the cameras and found them all to be pointing at the Johnson property, although one camera captured a side of Mr. Cline’s property. He also looked at the four quadrants on the Johnsons’ television, each showing what was captured by the different cameras. He confirmed that channel 2 showed a side door of Mr. Cline’s property in the background, but testified that was not of concern to him as it captured mainly the Johnsons’ own property.
57This officer was also called by Mr. Cline and attended on August 20, 2012 to investigate a complaint that the Johnsons’ truck window was down an inch and Mr. Cline believed that a camera pointed through the opening at his house. The officer found that indeed the window was down an inch, but there was no camera in the truck.
58In January of 2013, the same officer investigated a complaint by Mr. Cline that the cameras were motion sensitive. The officer advised him the cameras had been inspected and were not motion sensitive and furthermore that any incidental brushing of snow off a vehicle, which landed on the Johnson side of the Cline’s side of the driveway, was not a trespass.
59This officer estimates that he has spent between 3-4 days of time investigating complaints with respect to this property and concluded there were no grounds for laying any charges against anyone.
60Constable Julie Sudds is a police officer with 22 years’ experience and became involved incidentally with this dispute as a result of being assigned the duty of investigating Constable Bourne, the officer who took one of the early complaints by Mr. Cline, and then became romantically entwined with him. Her evidence is that on July 25, 2012, Mr. Cline came to headquarters, met with her, and showed her photographs of the Johnsons’ cameras and complaining that they were aimed at his house. She advised him that the cameras did not show what he claimed, in her opinion.
61Detective Andy Abra of the Waterloo Regional Police was a Community Resource Officer (CRO) for part of the relevant time period. The evidence is that the CRO has referred to him all calls relating to a particular dispute, once it has become marked one which is of an ongoing nature. The aim is to reduce the number of police officers involved in these frequent complaints, and to avoid a situation where every new officer who arrives has to start all over again trying to understand the history of the matter. One of Detective Abra’s visits to the property occurred on November 10, 2015. He looked at the four surveillance cameras mounted by the Johnsons, concluding that they viewed mostly their own property but that some portions of Mr. Cline’s driveway and front yard were captured in the background, as well as part of the side of Mr. Cline’s house showing in the background of one camera. The officer was unable to remember whether he had advised the Johnsons to use these cameras, but agreed that he may have, as such cameras do help in these types of investigations. His evidence is that if he did so recommend, he would have told the Johnsons to be careful about respecting the neighbours’ privacy.
62Constable Andrew Sharren has been a police officer for 13 years and was a CRO for another portion of the relevant time period. He attended on March 29, 2013, as a result of complaints by Mr. Cline, and inspected what Mr. Cline claimed to be a surveillance instrument mounted on the wall of the Johnson house. The officer inspected it and found it to be the exterior component of a weather station which transponds weather conditions to a unit inside the Johnson house. He also inspected the four cameras and found them not to be equipped with motion detectors. After intervening calls to the house by Mr. Cline on April 19, 2011, May 18, 2013 and May 21, 2013 he spoke to Mr. Cline again on December 2, 2013, with Mr. Cline still maintaining that the weather station was a monitoring device. His evidence is that the Johnsons were cooperative throughout.
63Constable James Mitchell was another CRO who oversaw the complaints with respect to this dispute towards the end of the time in question. On February 22, 2016 he and the Waterloo Regional Police Service legal officer got together and wrote to Mr. Cline laying out for him the guidelines of when to call the police, and when not to. Thereafter, there were more than a dozen complaints by Mr. Cline. They involved the shovelling of snow onto his driveway, the noise, the security cameras, a lawn mower running, parking near the edge of the driveway, that Mr. Johnson was audio taping him, horn honking complaints, door slamming complaints, and a dog bark. The officer testified that he advised Mr. Cline that these were all normal urban sounds and were expected in a setting like this. As Mr. Cline would not accept this, the officer went and interviewed Karen Priebe, who confirmed that she had heard none of the noises complained of and advised the officer that she felt intimidated by Mr. Cline. The officer also interviewed the neighbour to the other side of Mr. Cline’s house. As a result, no charges were laid against the Johnsons.
Chunks of Pavement
64Mr. Cline testified that the Johnsons would remove chunks of pavement from the slope portion of the driveway and put them across the street on a boulevard. He testified that some such damage was done by Mr. Johnson using a shovel to bang on the sloped portion of the pavement. He also claims other parts of the damage were done by the Johnson vehicles parking on the slope. Patrick Cline testified that he went and collected some of the chunks of pavement from the boulevard across the street, brought them back, and matched them up in size to corresponding holes in the slope portion of the driveway, and photographed them and showed the photograph to the police.
65The Johnsons deny any deliberate destruction or damage to the slope portion of the driveway, and the shovel banging.
66As was subsequently determined by survey, and eventually agreed between the parties, the paved slope was Mrs. Johnson’s property in any event.
Barbeque Lid Slamming
67Mr. Cline testified to, and recorded in his notes, several instances where he alleges that Mr. Johnson deliberately slammed the lid of his barbeque just to harass and annoy Mr. Cline. Mr. Johnson denies doing so and maintains that he simply used his barbeque in a normal way and caused no more noise than one normally makes by closing those metal lids.
Slamming of Car Doors
68Mr. Cline testified that repeatedly the Johnsons would slam their car doors, or their house doors, so as to annoy him. He recorded such instances in his journal notes. The Johnsons deny any such deliberate slamming and maintain that they took extra caution to be quiet because of their desire to avoid annoying Mr. Cline and thereby engaging any of his outbursts or complaints to the police.
69Mr. Cline testified that on one occasion Mr. Johnson slammed shut the tailgate of his truck so violently that it caused glassware on the shelves in Mr. Cline’s kitchen to rattle. Mr. Johnson denies any such conduct or that it is even possible.
The July 2016 Incident
70The evidence is that Mr. and Mrs. Johnson in separate vehicles, and Mr. Cline in his, all arrived home within moments of each other. Mr. Johnson testified that within moments Mr. Cline was out of his truck yelling at the Johnsons that they were criminals, liars, and taunting Mrs. Johnson of being afraid of him. Mr. Johnson called the police and offered the police the opportunity to go and look at the videos from the Johnson surveillance cameras, which the police did. Karen Priebe, the neighbour on the other side of the Johnsons, was interviewed by the police and gave a statement identifying Mr. Cline as the individual who was doing the yelling. No charges were laid, either way.
The Car Unloading Incident
71Mr. Johnson testified that he and his wife arrived home one evening after being away for their wedding. As it was late, they did not unpack the car. The next morning Mr. Johnson drove his wife to work and then returned and commenced to unload the car of the items that had been packed from their trip. The date was July 9, 2014. The video, Exhibit 9, demonstrates that Mr. Cline came out and was appearing angry and voicing his opinion about something. Mr. Johnson testified that Mr. Cline was calling him an asshole and asking him if he was happy with himself. Mr. Cline is shown still standing at the edge of his driveway four minutes later and appears to be yelling and acting in an intimidating manner. There is no audio tape of that occasion. Mr. Johnson called the police.
The Cigarette Butts
72Mr. Cline complains that he would find cigarette butts on his driveway and he alleged they had been placed there by Mr. Johnson to annoy and harass him. He produced a photograph of one such cigarette butt. That photograph was taken in August, 2015. Mr. Cline testified that he did not see who put the cigarette butts in the locations where he found them. Mr. Johnson denies throwing any cigarette butts on the Cline property and always put his cigarette butts in an ashtray by his back door, and swore that in fact gave up smoking in March of 2014, over a year before Mr. Cline’s photograph was taken. Mr. Cline testified that he and his father have picked up approximately 100 cigarette butts and thrown them onto the Cline property. Mrs. Johnson did not smoke. Mr Cline does.
The Peace Bond
73In May of 2014 the Johnsons applied for a peace bond which was granted for a period of six months. The evidence of Mr. and Mrs. Johnson is that when they attended at the court they sat together on a bench in the hallway awaiting their case. Their evidence is that Mr. Cline came, sat directly across from them, and “blew a kiss” in a mocking manner at them. They felt intimidated and reported the matter to the police.
74Mr. Cline’s evidence is that when he attended, the hall was very busy. He sat down, did not blow a kiss, but later went outside to have a cigarette. His evidence is that he learned while he was outside that the Johnsons had complained to the police. Once he returned to the area, with that knowledge, he admits that he did then blow them a kiss. His father, Patrick Cline, testified that the hallway was so busy that there was not any room for him to sit near the others, so he didn’t see any kiss being blown.
75Mr. Cline testified that he was convinced that the Attorney General’s department had preconceived his guilt in the sense of the granting of the peace bond. He attributed their attitude to the fact that he had a record and a prior history with another neighbour.
Reports to the Police
76The Johnsons reported the actions of Mr. Cline to the police on four occasions. The first was the tree chopping incident as referred to in paragraph 41. The second time was when Mr. Cline is alleged to have blown a kiss at them at court during their attendance for the peace bond as referred to in paragraph 71. The third time was the July 2014 incident when Mr. Johnson was unpacking the car as referred to in paragraph 69. The next time was the snow clearing incident on January 8, 2017, as described in paragraph 36.
[76A] The Johnsons allege, Mr. Cline agrees, and his journal notes show that he called the police in excess of 30 times complaining about parking, dog barking, slamming of doors, surveillance cameras and the other things referred to in these reasons. Those complaints spanned the period from August 27, 2011 to September 7, 2016. These complaints necessitated the involvement of numerous officers who either attended at one or both of these residences, or interviewed the parties, or spoke to the parties by phone.
77There were so many that this dispute was referred to a Community Resource Officer (CRO) who changed from time to time. That officer was charged with the responsibility of dealing with ongoing problems such as this one with the aim of the police force being to avoid having different officers attend to complaints every time and learning of the history of the problem over and over again.
78As a result of all these complaints, no charges were laid by the police. It is very obvious from the testimony of Mr. Cline, from the journal notes he kept, and from the evidence given by the police officers that Mr. Cline was entirely dissatisfied with the investigative efforts of the Waterloo Regional Police, and for their failure to ever lay charges against the Clines.
The Private Complaints
79Mr. Cline tried twice to lay a private complaint, the first for criminal harassment, and the second for mischief. The earlier one contains a statement signed by Mr. Cline dated April 21, 2012. The Notice that a private informant is told to read and sign to signify that he has done so was dated May 7, 2012. In his statement, Mr. Cline documents many of the same concerns detailed in the foregoing paragraphs.
80The second private complaint bears four different dates on the form the complainant is told to read and sign as acknowledging. The last date appears to be July 23, 2012. It too details many of the above described complaints.
81The documentation as produced at trial is in many respects unclear on its face as to what happened.
82David Faulds is a retired Crown attorney, who at the time worked out of the Regional Crown’s office in London and who had a supervisory role with respect to matters in Kitchener. He testified that he was assigned Mr. Cline’s private complaint of mischief against the Johnsons. He testified that he reviewed the information available to him, focusing on what Mr. Cline said during the pre-enquette hearing. He testified that Mr. Cline wanted access to the criminal justice system because he had been brought to court on the peace bond, so he wanted to bring the Johnsons to court. Mr. Faulds testified that he concluded that there was a reasonable prospect of conviction but that there was no public interest served in continuing with the charge, so he had it withdrawn. He testified that the term ‘reasonable prospect of conviction’ did not equate to proof beyond a reasonable doubt, but was simply a conclusion that there was sufficient evidence to allow the prosecution to proceed.
Recycling Bins
83Mr. Cline testified that the Johnsons would drop their recycling bins and kicked them so as to deliberately make noise to annoy him. This suggestion was not put to the Johnsons.
Physical Surveillance by Mr. Johnson
84Mr. Cline alleges that on occasion Mr. Johnson would follow him. On one occasion he testified that Mr. Johnson followed him down Queens Boulevard and when Mr. Cline noticed him that Mr. Johnson turned right so as to suggest he was not following Mr. Cline. But when Mr. Cline arrived home, Mr. Johnson pulled in seconds after him which, Mr. Cline testified, proved Mr. Johnson was following him the whole time. On a different occasion he testified that Mr. Johnson observed Mr. Cline’s truck, while Mr. Cline was on a laptop, his evidence is Mr. Johnson pulled up and ”gave me his patented death look” and then drove away. He reported this matter to the police. Mr. Johnson denies these incidents or ever having followed Mr. Cline.
Looking in the Cline Windows
85Mr. Cline testified that both of the Johnsons would look in his house windows many many times. When questioned so as to clarify this, he indicated that usually Mrs. Johnson would be sitting in the passenger seat of her truck when she would look over towards his house. On other occasions, Mr. Cline testified that he could see Mr. Johnson’s reflection in the glass of the Cline storm door showing that Mr. Johnson was watching Mr. Cline enter his house through the storm door, and that Mr. Johnson was looking out through his kitchen window when doing so. Mr. and Mrs. Johnson deny ever looking in Mr. Cline’s windows, as that phrase is commonly understood and used. They agree that from time to time, over the years, they would look at his house, but never in the sense of going up to the window and looking inwards. Mr. Cline testified that on another occasion a different neighbour “looked in his window”, but when asked to explain, indicated that she did so while on the street driving by his house.
The Driveway Monitoring Alert System
86Mr. Cline testified as to his belief that the Johnsons had a driveway monitoring alert system in operation. One part of that he believed to be a metal box mounted to the exterior wall of the Johnson house. He had a police officer examine it and was told that it was the exterior unit of a weather monitoring system. Mr. Cline testified that the other part of this monitoring system was a black box mounted on a post which is part of the Johnson rear porch. He maintained this position despite the police evidence that it was not the case. Mr. Johnson took close-up photographs of both the metal box on the wall and the black box on the porch post. On being shown those, Mr. Cline finally agreed the metal box on the wall indeed appeared to be the exterior portion of a weather monitoring system. The photographs of the black box were taken in sequence showing the lid being lifted, exposing a keypad, which when opened then exposed a key. He finally agreed that this was, as the Johnsons had indicated, a drop box for a key.
The Kitchen Window Webcam/Sun Catcher
87Mr. Cline maintained that the Johnsons had a webcam on the interior of their kitchen window aimed directly at his side door and he reported this to the police. He maintained that his photograph showed not only the web camera but a wire leaving from it. As these allegations of Mr. Cline had been known for some time, Mr. and Mrs. Johnson produced during their case photographs of a glass sun catcher, which hung in their kitchen window, and produced the actual sun catcher in court. In his reply evidence, I permitted Mr. Cline to introduce a photograph of the sun catcher viewed from the inside of the home looking out through the window, and it shows the sun catcher hanging on a cord, which in turn is draped around a window locking device on the top of the sash. The sun catcher has a bluish or purplish offset area within the larger glass object. That configuration seems to be reflected in what can be seen in the Cline photographs. Nevertheless, Mr. Cline maintains that that is a web camera aimed at his house.
The Cline Action Against the Waterloo Regional Police
88Mr. Cline’s evidence about the alleged Webcam, as detailed above, included revelation that photographs have been taken by a private investigator in August 2016, in support of a civil lawsuit commenced by Mr. Cline against the Waterloo Regional Police Service in which he claims hundreds of thousands of dollars. The lawsuit is based on variously pleaded failures on the part of the police to do their job and pleads that the police acted as they did as they had labelled him as being mentally ill, and that they acted as they did because of Mr. Cline’s intimate relationship with Constable Bourne. Patrick Cline testified that the photographer hired in support of the action against the Waterloo Regional Police went on to the Johnson property to take the photographs and that they did not have the permission of the Johnsons to enter upon their property.
Findings of Credibility
89In my opinion, both Mr. and Mrs. Johnson were credible witnesses. Both answered questions from their own counsel responsively, without adding any unnecessary commentary and without appearing to unnecessarily slant their evidence in their own favour. In cross-examination, both were polite and responsive to the questions asked. They did not argue with counsel. They did not add “colour commentary” to their answers but rather directly answered the question asked.
90I also found Karen Priebe to be a credible witness. It was quite obvious that she was in an uncomfortable position in testifying. She admitted that other neighbours had advised her to stay out of the dispute rather than testifying in court. Her evidence is that it was time to stand up to a bully, Mr. Cline, and that she was prepared to do so despite her concerns for her own safety. She answered the questions fairly, regardless of which counsel was asking them. She admitted when she could no longer clearly remember certain events. While she is clearly more friendly to the Johnsons, in my opinion she testified honestly and accurately to the best of her recollection.
91I have no reason to doubt the veracity of any of the police witnesses who testified. Indeed, in my opinion, they were all in unfortunate and unenviable positions as they sought to try and bring peace between the Johnsons and Mr. Cline, and to fairly investigate the never ending string of complaints.
Findings of Credibility With Respect to Mr. Cline
92In my opinion Mr. Cline did not come across as a credible witness for several reasons. His behaviour while testifying, particularly during cross-examination, was that of an angry, cocky and combative person. When asked simple questions he would often launch into a much longer answer than required by the question, with that answer adding other pieces of information he thought helpful to his case, but not called for by the question asked. He was combative with counsel and sometimes answered questions with a question.
93One definition of “obsession”” in The Webster’s New Collegiate Dictionary is “a persistent disturbing preoccupation with an often unreasonable idea or feeling”. By that definition, Mr. Cline has an obsession towards the Johnsons.
94His 746 pages of handwritten journal notes are replete with unfounded suspicions, notations of events that would be of no importance to reasonable people, and are full of references to his dislike and lack of respect for virtually everyone else involved in this case. For instance, he notes the make of vehicle and the licence number of vehicles who visit the Johnson property without any suggestion that such people are doing anything wrong or of any significance to him. He suggests in his notes that the Johnsons may have an audio recording device in their cold cellar, a suggestion that appears to have no foundation whatsoever. Despite being advised in May of 2012 of the City of Kitchener survey showing the disputed property to belong to Mrs. Johnson (Drummond), and of the survey commissioned by the Johnsons in July 2012, Mr. Cline continues right up to the end of his notes insisting that the property is his and that the Johnsons are trespassing on it and deliberately destroying what is his property.
95While he swears that his notes were made contemporaneously with the events recorded, there are instances where this simply is not true, as for example, at the bottom of page 2 and top of page 3 where he inserts entries from May 23 or 24 or 25, 2011 under an entry for September 6.
96Occasionally his evidence was simply unbelievable, as for instance when he testified that on one occasion Mr. Johnson closed the tailgate on his pickup truck so loudly that it shook the glasses on the shelf in Mr. Cline’s kitchen. He maintained that the metal box attached to the outside of the Johnsons’ brick wall, together with the black box attached to a wooden upright of their back porch, were parts of a motion activating driveway alarm system, despite having been advised to the contrary by the police. There appears to have been no basis for his belief. It was not until he was shown close up photographs that he finally relented and agreed that the devices were exactly what they had been held out to be.
97His obsession with perceptions of wrongdoing on the part of the Johnsons permeates his evidence over and over again. For instance, he testified that a beer bottle left on a window ledge of the Johnson home was deliberately left there by them to taunt him or bait him because they knew that he had quit drinking, as a result of the fact that he used to have an alcohol problem. When asked about it, he agreed he had no reason to believe that the Johnsons knew that he used to be a drinker, and accordingly they would have no reason to believe that leaving a beer bottle on an exterior window ledge would bait him in any way.
98In Mr. Cline’s notes he recorded that on May 13, 2012, 138 empty beer bottles came out of the Johnson home. It was pointed out to him that 138 bottles is not a sum one can reach by adding various size cases of beer together. When that was pointed out to him he admitted he had somehow counted the bottles. On cross-examination he agreed he had no idea how long it had taken for that number of bottles to be accumulated. It was simply none of his business, and of no moment, and irrelevant to this action. It simply shows the scope of his obsession.
99The volume of notes he made, and the detail recorded therein, evidences to me that Mr. Cline must have spent most of the time when he was at home observing the Johnson property. On occasion he would note that one or the other of the Johnsons would arrive home and make no noise in terms of beeping their horn, or closing their vehicle door, etc. When asked how he would notice that if there was no noise to draw his attention, it became obvious that he had to be just watching for no reason to see what he could detect and record. Similarly, in his notes, Mr. Cline records occasions when Mrs. Johnson is home alone. That of course is none of his business, and only can be known to him if he’s been watching continuously and for long enough to know that Mr. Johnson has previously left the house and not returned.
100Mr. Cline disputes the evidence of Constable Halliday who testified that Mr. Cline showed him a property line which made the sloped portion part of the Cline property, and yet that is exactly the theme that goes through Mr. Cline’s notes, containing as they do complaint after complaint, about the Johnsons stepping on the sloped area, driving on it and brushing snow on it.
101Mr. Cline admitted under oath that he and Constable Bourne had an intimate relationship in June of 2012, but he swore that he never used her position as a police officer to try and stop the peace bond application initiated by the Johnsons. He also testified that he never asked his father to speak to Constable Bourne about interfering with the process. The audio tape, and a transcript of it, of a message left by Mr. Cline on the answering machine of his friend, Betty Warren, reflects that Mr. Cline told her “Dad is once again telling me to wait until tomorrow or Friday to see what she can do regarding this withdrawal of peace bond.” That message was left on June 20, 2014. Mr. Cline, in evidence, agreed that “she” referred to Constable Bourne. When it was suggested in cross-examination that this message demonstrated that he was aware efforts were being made by Constable Bourne to interfere with the Johnsons’ peace bond application, Mr. Cline refused to acknowledge that his message referred to any such thing. His denial was unbelievable and nonsensical. He had no alternative explanation.
102In his notes, Mr. Cline refers to Mr. Johnson’s mother as “criminal mom” and suggests that perhaps she is monitoring the Johnsons’ video, but agrees that he had no idea what she was doing. His answer was that he recorded it because it was possible she was doing so. At another point on page 429, he noted that “criminal mom” was at the house alone and asked himself how she can be there alone beside the neighbourhood bully who is mentally ill. His evidence is that he knew the Johnsons were away on vacation and yet his belief is that Mr. Johnson’s mother was there simply to harass him. At another point he noted that on July 2, 2016 “criminal mom” had parked in the driveway and was reading a newspaper on the Johnsons’ back porch – obviously he was spending a lot of time watching what went on at the Johnson house. There is no note, and no evidence, of Mr. Johnson’s mother ever doing anything that’s relevant to these proceedings, or anything such as to cause a reasonable person to label her as “criminal mom”.
103Mr. Cline made a note for December 7, 2015 indicating that Mr. Johnson had used a saw and a snow blower. It was at 2:23 p.m. He refused to agree in cross-examination that cutting wood or starting a snow blower in December in Canada is a normal neighbourhood activity and maintained that it was done to harass him.
104When it was pointed out to Mr. Cline that his notes contained profanities towards the police, Crowns and the Attorney General, Mr. Cline initially testified that he had respect for such people. At page 55 he notes “Thanks police & crowns, good, great fucking job. Dishonest cunts”. At page 66 for February 8, 2013 he wrote “Fuck head crowns who lie, neighbours who lie and get rewarded, cops who lie”.
105At page 241 for September 19, 2014 he wrote “Thank you very much, very much WRPS, JPs and AG. You fucking cocksuckers”. At page 438 for February 25, 2016 he wrote “Very very fine work Stooge Force, Bill Wilson & company.” Mr. Wilson was the Crown attorney for the Regional Municipality of Waterloo. I refer to these profane remarks not to suggest that I discount Mr. Cline’s credibility because of his choice of language, but rather to evidence the depth of his dislike and animosity towards everyone else involved in this case, a depth which in my estimation is unreasonable, and colours his perception and evidence.
106During cross-examination, Mr. Cline agreed that he would be relentless in his pursuit of justice regarding the Johnsons, and agreed that at page 73 of his notes he indicated that he would take this matter to the Supreme Court of Canada. At page 204 he wrote that he would tell his story and shake the Justice Department to its core, and that the police, the Crowns and the Attorney General will all face discipline and reprimand consequences. At page 315 he made a note regarding April 18, 2015 indicating that the Johnsons returned home, honked their horn and that “you will pay dearly soon”. For November 12, 2015 at page 373 he wrote “I will never stop until there are charges against these criminals and a lawsuit against the police”. At page 594 for September 28, 2016 he testified that the Johnsons returned home, to a horn honk and a door closing thud to which he added “Hope you arrested, soon criminals. Last breath of mine, I will see that it happens. Like 2 blind people trying to get into the house. So fucking exaggerated. Tough day criminals, bad news. I will make sure it gets worse. Until you are both convicted.”
107For August 25, 2016 at page 572 he recorded that Mr. Johnson returned home, parked on the edge of the driveway and honked his horn and continued “Criminal harassment at its finest. Rewarded. With such absolute sincerity I say fuck you Stooge Force & fuck AG & fuck you to Rojak. Fuck you all. Your time will come soon.” Mr. Rojak is a Justice of the Peace, and was the one who issued the peace bond against Mr. Cline, which he unsuccessfully appealed. Again, this profanity is not cited for shock value, but rather referred to to show the depth of hatred Mr. Cline has for everyone else in the process, and to show through his own words his determination to obtain what he perceives to be justice at any cost. In my assessment, his notes, as well as his evidence are all coloured, very much in his own favour, to achieve what he himself admits to be his aim. It is understandable that parties will be partial to their own cause. But when the notes and the evidence contain venomous comments about everyone else involved in the case, it undermines the credibility of Mr. Cline substantially.
108In my estimation, it is quite clear from Mr. Cline’s evidence, and from his notes, that he has his own standard as to how the people in his neighbourhood ought to behave, and his own standards as to appropriate police conduct, and his own standards as to how the justice system should operate. Anyone who acts in a way that offends his standards, or fails to live up to them, is branded as criminal, stupid, and deserving of punishment. His attitude leads me to conclude that he is in fact obsessed about his neighbours, and this case, to such a degree that his evidence is simply not credible. Wherever it differs from that of the Johnsons, or the police, or Ms. Priebe, I reject his evidence.
Mr. Cline’s witnesses
109Patrick Cline in my view shares some of his son’s views, although to a much lesser degree. I think it rather unreasonable to go about retrieving chunks of pavement from across the street and matching them to holes in the paved slope, to support a claim that the Johnsons were damaging his property, when 2 surveys clearly showed the property to be the Johnsons. Similarly, given the history between these parties, having a private investigator trespass on the Johnson property in order to take pictures to support his son’s lawsuit against the police shows an unreasonable approach to these issues. I do not accept his evidence.
110Betty Warren admits to previous amorous feelings towards Jeffery Cline, and it appears they may well persist. Her account of the “rope burns” does not accord with that of Mr. Cline. I do not accept her evidence.
Health Effects
[109A] Mrs. Johnson was seen by her family physician on August 15, 2014 reporting depression, and increased stress related to a neighbour dispute and was prescribed medication. In a follow-up visit on August 28, 2014, she reported feeling better and was noted to have improved symptoms and her mood to be stable. The prescription drug was ordered to be continued. On March 10, 2015, she reported she was still having stress relating to her neighbour and the same prescription was renewed, as it was again on November 14, 2016.
[110A] In her evidence, Mrs. Johnson testified that she had been seeing her family doctor for stress and anxiety and taking a prescribed medication for those symptoms, but she agreed that part of her stress and anxiety related to her employment position being terminated as a result of a corporate reorganization.
111Christopher Johnson testified that he had been seeing his family doctor for depression arising from the effects of the lawsuit, together with the effects of uncertainty in his employment arising from corporate downsizing of shifts, and he ventured the opinion that those two things were about equal in terms of the stress he was feeling. He testified that he was put on two types of medication, but did not like the way they made him feel so he stopped taking them shortly after starting them.
112On July 4, 2013, Mr. Johnson attended at his physician’s office and was noted as reporting worsening depression, but it was reported as being related to employment concerns. Medication was prescribed.
Discussion of the Johnsons’ Claims
113As indicated earlier, the Johnsons seek damages for harassment, nuisance, intimidation, invasion of privacy, intentional infliction of emotional distress, and malicious prosecution, as well as special, aggravated and punitive damages. In many respects, the Johnsons’ complaint is that Mr. Cline has acted in a variety of ways such as to unreasonably interfere with their use and enjoyment of their home. That sounds of nuisance.
114As to their claim for damages for harassment, as discussed in the jurisprudence, there seems to be no clear indication that harassment is a stand-alone tort, but commonly is seen as one element of some other civil wrong: Canadian Tort Law, 5th ed., Linden & Feldthusen.
115It now seems in Ontario that a claim can be brought for damages for invasion of privacy. The Ontario Court of Appeal so held in Jones v. Tsige, 2012 ONCA 32. That case involved improper and extensive interference by the defendant with the plaintiff’s banking records. At paragraph 65 the court confirmed the existence of a right of action for intrusion upon seclusion. At paragraph 66 the court noted that privacy has long been a factor in other traditional causes of action. At paragraph 72 the court noted that such claims will only encompass deliberate and significant invasions of privacy in respect of financial or health records, sexual practices, private correspondence and the like. At paragraph 87 the court indicated the appropriate range of damages to be up to $20,000 where there has been no pecuniary loss, such amount being labelled as “modest but sufficient to mark the wrong that has been done”.
116In terms of the claim based on intimidation, the plaintiffs rely on the judgment in Saelman v. Hill, 2004 CarswellOnt. 2089. That was an action for nuisance, arising out of many instances of dispute, many of which are not unlike those in this case. At paragraph 35, Hackland J. expressed satisfaction that the defendants’ actions were calculated to intimidate, upset and diminish the plaintiffs’ enjoyment of their property. At paragraph 36 he held “I am of the view that the tort of nuisance is made out in circumstances where a neighbour deliberately, significantly and unjustifiably interferes with another neighbour’s enjoyment of his or her property. This type of conduct may be labelled as harassment, intimidation or invasion of privacy and in my view, are in essence manifestations of the well-established tort of nuisance.” Usefully, at paragraph 41, Hackland J. also observed that while individual incidents may be minor and not actionable, when viewed collectively they may constitute actionable nuisance.
117Similarly, the damages in Saelman included in part, damages for mental distress as flowing from the tort of nuisance.
118In my opinion, the actions of the defendant, Jeffrey Cline, when viewed collectively, amount to actionable nuisance. These actions include the following:
- several instances of yelling and swearing at one or both of the Johnsons while they were on their own property;
- repeatedly making complaints to the Waterloo Regional Police Service in respect of unfounded or trivial allegations of wrongdoing on the part of the Johnsons. There are in excess of 30 such complaints. This in turn resulted in numerous and repeated contacts by the police with the Johnsons, none of which led to any charges;
- as evidenced from the journal notes, Mr. Cline continuously monitored events at the Johnson home which amounted to nothing more than the normal day-to-day activities of householders. This included things such as what vehicles came to visit them and their licence numbers, who came to visit them, such as family members, when Mrs. Johnson was alone in the house, the amount of beer that came into the Johnson house, or empties that came out of it, and baseless allegations that ordinary daily activities on the part of the Johnsons were done to deliberately harass, annoy and intimidate Mr. Cline;
- while much of the invasive observations made by Mr. Cline were made in his journal notes, such allegations were disclosed to the Johnsons when the police made them aware of Mr. Cline’s note making practises. Hence the Johnsons lived with the knowledge that their lives were being journalized;
- having a private investigator trespass upon the Johnsons’ property to take photographs of the Johnson house, without permission, all in support of Mr. Cline’s action against the Waterloo Regional Police Service;
- throwing in excess of 100 cigarette butts on the Johnson property;
- repeatedly making complaints to the City of Kitchener by-law enforcement officials with respect to minor and trivial matters, including parking on the street one night, having a dinghy on a trailer on the front lawn once, dog barking, which I find to have been within reasonable limits, and complaints of items being stored behind a storage shed, etc.;
- recording when the Johnsons are absent from the property;
- digging down to and chopping the roots of a tree belonging to the Johnsons which had grown under a fence onto the Cline property, such as to cause the tree to be removed;
119I accept the evidence of Mr. and Mrs. Johnson that both have lived in fear of upsetting Mr. Cline and have accordingly foregone or limited activities they might have otherwise engaged in on their own property. I accept that Mr. Cline’s actions have made them feel like “prisoners in their own home”. I am satisfied that on virtually a daily basis for 6 years they have felt it necessary to govern their actions, to an unreasonable degree, so as to avoid further outbursts from Mr. Cline or complaints by him to the authorities.
Damages
120Both Mr. and Mrs. Johnson testified as to suffering depression and anxiety as a result of the hostility demonstrated by Mr. Cline towards them and their constant apprehension that anything they did would promote further retaliatory actions by him directly towards them, or through the authorities. The medical evidence with respect to such damages is meagre. The medical records produced are not in the form of medical opinions, but are simply clinical records, which for the most part record what Mr. and Mrs. Johnson have reported to their family physicians, and the medications prescribed for them as a result. For both Mr. and Mrs. Johnson, there is the concession of each of them that their depression and anxiety also stem from other causes relating to their employment, and was not solely attributable to the actions of Mr. Cline. Mr. Johnson stopped taking the prescribed medication after a month because he didn’t like the side effects. Mrs. Johnson took the prescribed medication continuously and still does. I have no evidence that it caused any loss of income for either.
121I take into account that Mr. Cline’s interference with the Johnson property, constituting nuisance, has lasted for 6 years. It has persisted into this year despite the fact that the allegations and counter allegations in this action were before the court and on a trial list. The involvement of their family physicians began in 2014 in respect of Mrs. Johnson and 2013 in respect of Mr. Johnson.
122As observed by the Court of Appeal in Smith v. Inco Ltd., 2011 ONCA 628 at paragraph 39:
People do not live in splendid isolation from one another. One person’s lawful and reasonable use of his or her property may indirectly harm the property of another or interfere with that person’s ability to fully use and enjoy his or her property. The common law of nuisance developed as a means by which these competing interests could be addressed, and one given legal priority over the other. Under the common law of nuisance, sometimes the person whose property suffered the adverse effects is expected to tolerate those effects as the price of membership in the larger community. Sometimes, however, the party causing the adverse effect can be compelled, even if his or her conduct is lawful and reasonable, to desist from engaging in that conduct and to compensate the other party for any harm caused to that person’s property. In essence, the common law of nuisance decided which party’s interests must give way. That determination is made by asking whether in all the circumstances the harm caused or the interference done to one person’s property by the other person’s use of his or her property is unreasonable: Royal Anne Hotel Co. v. Ashcroft (Village) (1979), 95 D.L.R. (3d) 756 (BCCA) at p. 760-61.
123In my opinion, the actions of Mr. Cline, for the most part not illegal, nevertheless caused harm and interference with the Johnsons’ use of their property to an extent that it is unreasonable and actionable, and has been of such degree and persistence that the Johnsons cannot be expected to simply tolerate it. They are entitled to compensation. In my opinion this case differs from that of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 where the court, at paragraph 9, observed that “minor and transient upsets do not constitute personal injury, and hence do not amount to damage.” The plight of the Johnsons was neither minor nor transient. As recently held by the Supreme Court of Canada in Saadati v. Moorhead 2017 SCC 28, in claims for damages for mental distress, expert evidence is not required, nor must it be established that the distress rises to the level of a diagnosed psychiatric condition.
124For the foregoing reasons, I award Susan Elizabeth Johnson $15,000 for the interference with and enjoyment of her home and $3,000 for the mental distress caused thereby. I award Christopher St. Clair Johnson the sum of $15,000 for the interference with and the loss of enjoyment of his home and the sum of $1,500 for the portion of his mental distress attributable to the conduct of Mr. Cline.
125The claim for damages for malicious prosecution is not subsumed in the tort of nuisance. As established in Nelles v. Ontario, [1989] 2 S.C.R. 170, the elements of this tort are set out at paragraph 42 as follows:
(a) the proceedings must have been initiated by the defendant; (b) the proceedings must have terminated in favour of the plaintiff; (c) the absence of reasonable and probable cause; (d) malice, or a primary purpose other than that of carrying the law into effect.
126The requirements in subparagraphs (a) and (b) are obviously made out here. As to the requirement set forth in subparagraph (d), I am satisfied it is made out here. I rely on both the actions of Mr. Cline throughout and on his assertions in his journal notes that he will not rest until he has made the Johnsons pay. The requirement in subsection (c) is somewhat more problematic in this case, that is the “absence of reasonable and probable cause”. It is made more difficult by the opinion of Mr. Faulds when he indicated in his letter to Mr. Cline that there was a “reasonable prospect of conviction”, but that he was withdrawing the charge by reason of it not being in the public interest to continue.
127The term “reasonable prospect of conviction” comes from the Attorney General’s Advisory Committee on Charge Screening Disclosure and Resolution Discussions (the Martin Committee Report). It specifies that it is to be an objective assessment and that the standard is higher than that of a “prima facie” case meaning that it is not enough if there is some evidence that could result in the conviction. But the test is not so high as to require that a conviction would be probable. Mr. Faulds was of the view that on the material as available to him at the time that the standard of whether there was a reasonable prospect of conviction had been established. I am not bound by Mr. Faulds’ assessment of the situation as it existed when he dealt with the matter. He did not have the evidence of Mr. Cline’s rants as outlined in paragraphs 105-109.
128Mr. Cline’s journal notes make it clear that he bears malice towards the Johnsons and that he intends to make them pay for what he perceives to be the wrongs done towards him. Many of his complaints are trivial and in my assessment could not amount to reasonable and probable cause to justify his private complaint. Insofar as he complains of the surveillance cameras utilized by the Johnsons, while I am not prepared to find that they constitute a foundation for damages against the Johnsons, I am not persuaded that an absence of reasonable and probable cause has been established within the requirements as set forth in Nelles. Paragraph 47 stresses the difficulty facing a plaintiff in making out a case of malicious prosecution.
129I dismiss the claim of the Johnsons for damages for malicious prosecution, and the claim for special damages in the form of legal fees incurred in answering the complaint.
130In my opinion the claim for aggravated damages should not succeed as in my view there are no intangible losses left unaddressed by the above awards. Similarly, I would not award punitive damages as the damages awarded above are sufficient. This case does not in my view meet the stringent requirements established in Whiten v Pilot Insurance Co., 2002 SCC 18 for punitive damages.
Discussion of Mr. Cline’s Claims
131The claims of Mr. Cline are based on invasion of privacy, nuisance and negligence. At least in the case of a dispute as between neighbours, in my opinion, invasion of privacy falls within the tort of nuisance. I find that all but one of Mr. Cline’s complaints are clearly unreasonable as they pertain to actions, or perceived actions, on the part of the Johnsons which were exercised as part of their lawful enjoyment and use of their property. Mr. Cline’s numerous complaints about the noise of horn chirping, vehicle door closing, vehicle radios, snow shovelling and blowing and the like, I find to be all within the reasonable limits of expected and acceptable noise within a residential community.
132The complaint relating to the surveillance cameras requires more consideration.
133I am not unmindful of Mr. Postnikoff’s submission that I should draw an inference against the Johnsons because they only produced approximately 13 minutes of video out of the thousands of hours the cameras were in operation, and that I should thereby infer that if preserved, the balance of the videos would substantiate his client’s position. I do not draw such an inference. The more reasonable inference in this case is that the videos were not watched at all, except in instances pertinent to the complaints of Mr. Cline. The Johnsons invited the police to view the videos if they wished to expend the time.
134Nor am I unmindful of counsel’s submission that I should find spoliation in respect of the failure to save and preserve all the video tape which was lost when automatically taped over. Leon v. Toronto Transit Commission, 2016 O.J. No. 2805 makes clear that it only applies when intentional destruction of evidence is proven to have occurred so as to rid a case of evidence unfavourable to the destroying party. I find the opposite to be the case here, namely that the vast majority of the video was never watched, and that what was relevant was produced.
135Counsel relies on Heckert v. 5470 Investments Ltd., 2008 BCSC 1298, [2008] B.C.J. 1854 as authority for damages for invasion of privacy in a surveillance camera situation. There, the dispute was between a plaintiff tenant and a defendant landlord, who had installed just one surveillance camera in the entire apartment building, and it was aimed so as to record close-up images of people coming and going from the plaintiff’s apartment. It was held to be an invasion of her privacy. The case turns on a B.C. statute, the Privacy Act. That statute makes invasion of privacy a tort, and held that in determining whether such an invasion is actionable, one must consider the degree of privacy to which a person is entitled as being reasonable in all of the circumstances, including the lawful interests of others, and the relationship between the parties. A subsection of the statute provides that such conduct is not a violation of privacy if the act was incidental to exercise of a lawful right of defence of person or property. In my opinion the case is not applicable here, and in any event the videoing would not be actionable here even if that statute applied. The Johnsons installed these cameras as a result of the threatening actions of Mr. Cline. They were installed in defence of threatening behaviour.
136Similarly, in my opinion the case of Lipiec v Borsa, [1996] O. J. No. 3819 does not assist here. The plaintiff was awarded $3,000 for nuisance based on several wrongs, one of which was that the defendant mounted a surveillance camera directly at the plaintiff’s backyard. At paragraph 16 it was held that the sole purpose of the camera was to keep the plaintiff’s under constant surveillance. There was no defensive or other purpose offered for the camera. It showed nothing of the defendant’s property. Such is not the case here.
137Counsel also relies on Suzuki v Munroe, 2009 BCSC 1403, [2009] B. C. J. No. 2019 where a plaintiff was awarded damages of $6000 in nuisance for several different actions of his defendant neighbour. One such action was the installation of a surveillance camera which viewed the plaintiff’s front yard, entrance and driveway, but not the area of the defendant’s property, said to be in need of protection from vandalism. It was found as a fact that there was no useful purpose in having the camera aimed as it was. At paragraph 99 it was found as a fact that the camera was installed to provoke and annoy the plaintiffs. I find otherwise here.
138Considering all of the circumstances in this case, I do not find that the installation and use of the cameras to be unreasonable. The evidence that I have is that the police recommended the use of the cameras, understandably, so as to avoid the ‘he said – she said’ type of situation which would confront a police officer called to investigate this type of dispute. I find it is a fact that the Johnsons did not view the contents of the surveillance cameras other than on occasions where they sought evidence of wrongdoing on the part of Mr. Cline. I accept their evidence and I see for myself on the video clips played in court, that it was not possible to see inside the Cline home by means of these surveillance cameras. Their only purpose was to capture the abutting driveways, which was the source of so much dissension between the parties, and the activities which took place there.
139Insofar as the claim is based in negligence, in my opinion the evidence does not disclose any duty on the part of the Johnsons to act other than as they did, nor any breach of duty on their part.
140Mr. Cline complains that he has been baited, taunted, and otherwise mistreated by the Johnsons to the extent that he feels that he is a prisoner in his own home. I reject those complaints. In my opinion, Mr. Cline is the victim of his own obsession and unreasonable expectation that everyone else in his world will act in accordance with his perceptions of what is reasonable.
141I dismiss his counter-claim for damages.
142If I am in error is so doing, I would assess his damages in nuisance for the claimed invasion of his privacy at $3,000. While he claims to feel like a prisoner in his own house and to have found his situation intolerable, I note that there is not a shred of medical evidence.
Competing Claims for Injunctive Relief
143As I pointed out on several occasions to these parties, at the end of this case, regardless of the result, they remain neighbours until such time as one or both decide to move.
144In an effort to try and assist in the maintenance of a peaceful truce, I order that Jeffrey Michael Patrick Cline be restrained from interfering with or obstructing in any way the Johnsons’ exclusive reasonable use of their property registered in the name of Susan Elizabeth Drummond, including the portion of the paved driveway awarded her by the settlement of the main action herein, and grant an injunction restraining Mr. Cline from all forms of communications with the Johnsons, except by their written invitation or agreement.
145I do not think it appropriate to grant any injunctive relief as against the Johnsons, as in my view they have done nothing wrong. I am quite satisfied that they would be very happy to have nothing further to do with Mr. Cline, and that no order is required to ensure that they will not initiate any communications with him or to ensure that the peace continues to be kept on their part.
Costs
146If the parties cannot agree on costs, written submissions may be made, with those on behalf of the Johnsons to be delivered within 21 days of the release of these reasons, and those on behalf of Mr. Cline to be delivered within 15 days thereafter. Such submissions are not to exceed 10 pages, exclusive of offers to settle, bills of costs, and relevant authorities. In the event that submissions are not received within the above time limits, or such extensions as may be sought and granted, costs will be deemed to have been settled as between the parties.
C.S. Glithero J.
Date: June 27, 2017
COURT FILE NO.: C-650-13 DATE: 2017-06-27 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: PATRICK ROBERT CLINE, ANNE CLINE and JEFFREY MICHAEL PATRICK CLINE Plaintiffs – and – SUSAN ELIZABETH DRUMMOND Respondent AND BETWEEN: SUSAN ELIZABETH (DRUMMOND) JOHNSON and CHRISTOPHER ST. CLAIR JOHNSON Plaintiffs by Counterclaim - and - PATRICK ROBERT CLINE, ANNE CLINE and JEFFREY MICHAEL PATRICK CLINE Defendants by Counterclaim REASONS FOR JUDGMENT C.S. Glithero J. Released: June 27, 2017
