Court of Appeal for Ontario

Date: 2019-03-07 Docket: C64112

Judges: Feldman, Roberts and Fairburn JJ.A.

Parties

Between

Patrick Robert Cline, Anne Cline and Jeffrey Michael Patrick Cline Plaintiffs

and

Susan Elizabeth Drummond Defendant

And Between

Susan Elizabeth (Drummond) Johnson and Christopher St. Clair Johnson Plaintiffs by Counterclaim (Respondents)

and

Patrick Robert Cline, Anne Cline and Jeffrey Michael Patrick Cline Defendants by Counterclaim (Appellant)

Counsel

Jeffrey Michael Patrick Cline, acting in person

Les Protopapas, for the respondents

Heard: March 5, 2019

Appeal Information

On appeal from the judgment of Justice C. Stephen Glithero of the Superior Court of Justice, dated June 27, 2017, with reasons reported at 2017 ONSC 3916.

Reasons for Decision

[1] This case arises out of a protracted dispute between neighbours. The main action related to a property line dispute that was settled before trial. Accordingly, the trial judge only dealt with the Johnsons' counterclaim against Jeffrey Cline, and Jeffrey Cline's counterclaim against the Johnsons, both of which included allegations related to nuisance and invasion of privacy. Patrick and Anne Cline were no longer parties to either counterclaim as a result of the settlement.

[2] This is an appeal from the trial judge's findings on two fundamental points: (a) that the respondents' actions did not constitute nuisance or an invasion of privacy; and (b) that the appellant's actions amounted to nuisance.

[3] Although the appellant had counsel at an earlier point in these proceedings, he represented himself during oral argument. We have considered the arguments advanced in both the factum filed by his previous lawyer and the arguments he advanced in oral submissions.

Nuisance and Invasion of Privacy

[4] First, the appellant argues that the trial judge erred by concluding that he was not entitled to damages for nuisance or invasion of privacy. He says that the appellants have been invading his privacy for years by using video cameras that are pointed toward his property. The trial judge made findings of fact to which we defer. He applied the correct legal test for the tort of nuisance and addressed the substance of the correct legal test for the tort of invasion of privacy, also referred to as intrusion upon seclusion, from Jones v. Tsige, 2012 ONCA 32 and applied it to those facts. We would not interfere with his conclusion that nuisance and invasion of privacy had not been made out.

Adverse Inference Regarding Missing Evidence

[5] Second, the appellant contends that the trial judge erred by failing to make an adverse inference against the respondents on the basis that they should have produced more video surveillance than they did. We disagree. It was open to the trial judge to reject the appellant's suggestion that the respondents had destroyed evidence. It was also open to the trial judge to conclude that the missing video would not have substantiated the appellant's position in any event. As the trial judge found, it was more reasonable to infer that the videos had not been watched, except in relation to those incidents that directly involved the appellant. We see no error in the trial judge's conclusion that all relevant evidence had been produced.

Injunctive Relief

[6] Third, the appellant claims that injunctive relief should not have been awarded by the trial judge. Given the trial judge's conclusions about the appellant's malice and threatening behaviour towards the respondents, we see no error in his decision to grant an injunction restraining the appellant from all forms of communication with the respondents, except by their written invitation or agreement.

Credibility Findings

[7] Fourth, the appellant argued during oral submissions that the trial judge erred by finding police officers credible when they were clearly not. We see no such error. Although the trial judge made multiple credibility findings, he was duty bound to do so. The fact that those findings do not accord with the appellant's view of the witness' veracity is not a reason to set aside those findings.

Allegations of Bias

[8] Finally, the appellant argued that the trial judge was biased and prejudiced. We see no evidence to support that claim. The trial judge carefully, patiently, and methodically considered all evidence in this case, identified the live issues before the court, came to findings of fact and correctly applied the law.

Decision

[9] The appeal is dismissed. Costs of the appeal are to the respondents in the amount of $10,000, inclusive of H.S.T. and disbursements.

"K. Feldman J.A." "L.B. Roberts J.A." "Fairburn J.A."