Court of Appeal for Ontario

Date: 20211209 Docket: C68513

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Judith Ann Murphy and Jason Andrew Murphy Plaintiffs (Respondents)

and

Timothy Mullen and T.S. Mullen Farms Ltd. Defendants (Appellants)

Counsel: Larry M. Najjar, for the appellants Nour Jomaa, for the respondents

Heard: September 20, 2021 by video conference

On appeal from the judgment of Justice Pamela L. Hebner of the Superior Court of Justice, dated February 26, 2020, with reasons at 2020 ONSC 1261.

Hoy J.A.:

A. Introduction

[1] The trial judge granted summary judgment in favour of Judith Ann Murphy [1], holding that the appellants, Timothy Mullen and T.S. Mullen Farms Ltd., trespassed on the Murphy property. The trial judge also scheduled a hearing on the issue of damages. Following that hearing, the trial judge ordered the appellants to pay Ms. Murphy $213,471.27 as damages for trespass.

[2] The appellants do not contest liability but do challenge the quantum of damages ordered on multiple bases.

[3] This court is not entitled to interfere with the trial judge’s damages award unless it is shown that she erred in law, she misapprehended the evidence, there was no evidence on which she could have reached her conclusion, she failed to consider relevant factors in the assessment of damages or considered irrelevant factors, or she otherwise, in the result, made “a palpably incorrect” or “wholly erroneous” assessment of damages: Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80; Michel v. Spirit Financial Inc., 2020 ONCA 398, 151 O.R. (3d) 583.

[4] I am not persuaded that there is any basis for this court to interfere with the trial judge’s damages award, and so I would dismiss this appeal.

[5] Below, I first provide some background as to the facts and the trial judge’s damages assessment. Then I outline and address what I would characterize as the essentially 12 arguments the appellants raise on appeal, which I organize in my discussion into four categories: (1) foreseeability-related arguments; (2) other arguments related to Ms. Murphy’s intention to build a house on her property and her affinity for trees; (3) drainage-related arguments; and (4) other arguments.

B. Background

Facts

[6] Mr. Mullen owns T.S. Mullen Farms Ltd. It in turn owns the farm property adjacent, to the west, to Ms. Murphy’s 40-acre property.

[7] Prior to the trespass, both the Mullen property and the Murphy property were used as farmland. They were separated by a drainage ditch and a column of mature trees. The line of trees was approximately 2,000 feet long and 60 feet deep. The drainage ditch was on the Murphy property.

[8] Mr. Mullen entered the Murphy property and cut and removed the trees. After removing the tree line, he filled in the drainage ditch beside it. He would later argue that Ms. Murphy had given him permission to do so. Ms. Murphy acknowledged that probably one half of the trees removed were on the Mullen property.

[9] The Mullen property did not have proper drainage. It had no direct outlet to two existing municipal drains. Mr. Mullen took the action he did to improve drainage on the Mullen property and make it a viable farming operation. After it was apparent that Ms. Murphy did not agree with his actions, he petitioned the town for a municipal drain to address the drainage issues on the Mullen property. The municipality eventually constructed a drain. The costs were assessed to both properties under the Drainage Act, R.S.O. 1990, c. D.17. Of the total cost of $102,000, $77,032 was assessed to the Mullen property, and $24,968 to the Murphy property.

Trial Judge’s Reasons

[10] On the appellants’ summary judgment motion, the trial judge found that Mr. Mullen had not discharged his burden of proving he had leave and licence to do any work on Ms. Murphy’s property. Accordingly, she found the appellants liable for trespass on the Murphy property.

[11] There was a separate four-day hearing on the issue of damages, which gave rise to this appeal.

[12] At the time of the hearing, Ms. Murphy lived in the United States. The Murphy property had been in the Murphy family for generations. There had been no house on the Murphy property since the 1870s. [2] Nevertheless, the trial judge accepted that Ms. Murphy intended to build a house on the southwest corner of the property close to the tree line, and retire there. As I will discuss below, several of the appellants’ arguments arise out of the trial judge’s acceptance of Ms. Murphy’s evidence that she intended to build a house on the Murphy property.

[13] The trial judge also found that the trees were important to Ms. Murphy. Her evidence was that she had planted over 100 trees on her property in Richmond, Michigan. The tree line on the Murphy property had provided a sound and light barrier from the residential subdivision and the fairgrounds located to the west of the Mullen property. It was a habitat for wildlife and provided a wind break and a visual screen between the Murphy and the Mullen properties.

[14] The trial judge carefully reviewed the law on the issue of damages for loss of trees.

[15] She observed that the determination of compensation for loss of trees is a highly fact-dependent exercise and may vary depending on a number of factors:

Generally, the court will try to place the plaintiff in the same position as they were before the trespass was committed as far as having privacy restored or aesthetic beauty replaced, but not necessarily the replacement of the exact tree lost. If replacement is possible but not practicable, the court will look at what is reasonable in the circumstances.

[16] The trial judge noted that the appellants submitted that the court had three options on which to base its award: (1) the value of the trees; (2) the decrease in valuation of the land resulting from the cut trees; or (3) the cost of reasonable restoration.

[17] There was no evidence as to either the value of the trees or the decrease in value of the land. In any event the trial judge concluded that the appropriate approach to damages was that taken in Kates v. Hall, aff’g [1989] B.C.J. No. 1358 (S.C.), namely the amount “sufficient to pay for the remedial work which a reasonable person without monetary constraints in the plaintiff’s position would have implemented had the loss been caused without fault on anyone’s part”: Kates, at p. 6.

[18] The trial judge rejected the appellants’ argument that the trees would have had to be removed in any event given the subsequent placement of an open drain on the property line between the Mullen and Murphy properties and, accordingly, they should not be responsible for the cost of replacing the trees. She reasoned that had the tree line and ditch remained in place, Ms. Murphy likely would have opposed their removal to accommodate a municipal drain. The municipality could have placed the drain in a different location or considered different drainage options. Therefore, it was not at all certain that trees would have had to be removed.

[19] The trial judge found that the value of the trees was in their placement. She concluded that a reasonable person in Ms. Murphy’s position would arrange for the planting of trees along the property line for the portion (200 metres) of the full 610-metre length of the former tree line near where Ms. Murphy planned to build a house, and not along the north end of the property intended to be used for farmland.

[20] The trial judge accepted the evidence of Ms. Murphy’s son that, when he had walked the tree line, he had counted 300 trees. The tree line included trees that were 40 to 60 feet tall.

[21] The trial judge concluded that it was reasonable to use 40 to 50 mm caliper trees that were approximately 8 to 10 feet tall as replacement trees. Based on the expert evidence of the arborist called by Ms. Murphy, she found that the approximate cost of replacing one third of the tree line was $73,902. She accepted the expert’s evidence that irrigation and a fence to protect the new trees from the deer would be necessary and assessed $20,000 for irrigation and $13,000 for fencing.

[22] The trial judge found that the ditch Mr. Mullen had filled in had provided sufficient drainage for the Murphy property. Accordingly, she added the cost of the survey Ms. Murphy had to obtain for the purpose of the new drain constructed by the municipality, and the Drainage Act costs of $24,968 assessed against the Murphy property.

[23] Finally, the trial judge added the sum of $75,000 for “loss of amenities”. This amount recognized that Ms. Murphy would be waiting at least 20 years before she had mature trees at the place where she plans to build her house and that she would most likely never have trees along the entire length of the property line as she did before. As I will outline below, the trial judge explained how she determined that, in the circumstances, $75,000 was the appropriate amount.

[24] The trial judge declined to make an order for punitive damages.

C. Discussion

(1) Foreseeability-related arguments

[25] As noted above, the trial judge accepted Ms. Murphy’s evidence that she intended to build a house on the southwest corner of the Murphy property close to where the tree line had been. She also concluded that a reasonable person in Ms. Murphy’s position would replace a portion of the tree line that Mr. Mullen removed.

[26] The appellants argue that, unless waived, the concept of foreseeability applies to the quantification of damages for the tort of trespass and that the trial judge failed to apply this concept. While they conceded in their oral submissions that it was foreseeable that somebody, at some time, might build a house on the Murphy property, they argue that it was not foreseeable that the person building the house would have an affinity for trees and would use land that could otherwise be used for farming to plant replacement trees.

[27] The appellants also argue that, in a trespass case, it is assumed that the plaintiff would have used her land in the usual way such land was used at the time of the trespass. The appellants say deviation from this principle is justified only where objective evidence establishes that a change in land use was imminent at the time of the trespass or, at a minimum, was a realistic and likely outcome of a process already underway. The Murphy property was used for farmland and construction of a house was not imminent. In fact, Ms. Murphy had taken no concrete steps towards constructing a house. Accordingly, it should have been assumed that Ms. Murphy would not build a house, or, if she did, would not use land that could otherwise be used to plant crops to plant replacement trees. Paul Lantin, the tenant farmer who had farmed the Murphy property for many years, testified that about “20 feet of grain” was lost because of the trees.

[28] I reject these two arguments. Because my discussion of these two arguments overlaps, I will address them together.

[29] As I will explain, even accepting for the purpose of argument that the concept of foreseeability is generally relevant in assessing damages for the tort of trespass to land involving the removal of trees, in this case there is no merit to the appellants’ foreseeability argument. Moreover, the trial judge was not required to assume that Ms. Murphy would use her land in the way it was used at the time of the trespass.

[30] The appellants rely on a decision of the Saskatchewan Court of Appeal – Wood Mountain Lakota First Nation No. 160 v. Goodtrack, 2020 SKCA 10, at paras. 24-26, leave to appeal refused, [2020] S.C.C.A. No. 345 [3] – in support of their foreseeability argument. Notably, they do not point to any decisions of this court or any decisions from the Supreme Court of Canada.

[31] Wood Mountain is not a trespass case involving the removal of trees. It relies on a passage from G.H.L. Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters, 2010), at pp. 57-59:

Foreseeable loss is recoverable, and for this purpose it is assumed that the plaintiff would have used his land in the usual way such land is used.

In a footnote to this sentence, Professor Fridman cites three cases: De Wurstemberger v. Royalite Oil Co., [1935] 2 D.L.R. 177 (Alta. S.C. (A.D.)); Buckingham v. Graham (1996), 174 N.B.R. (2d) 330 (Q.B.); and Shewish v. MacMillan Bloedel Ltd. (1990), 48 B.C.L.R. (2d) 290 (C.A.).

[32] From my review of the cases cited by Professor Fridman, the quoted passage derives from De Wurstemberger, which in turn cites another Alberta case, Marsan v. G. T. P. Ry. Co. (1912), 4 Alta. L.R. 167 (S.C. (A.D.)). Neither case involves quantification of damages in trespass cases for the removal of trees. These cases stand for the proposition that, generally, a trespasser is liable for damages that the trespasser could fairly be expected to anticipate from their act, and that a trespasser can always be fairly expected to anticipate that the plaintiff intends to use her property “in any reasonable and usual way” (emphasis added). These cases do not stand for the proposition that in assessing damages it must be assumed that the plaintiff will use her land in the usual way it was used at the time of trespass. The proposition arises in the context of a foreseeability analysis and the cases cast the foreseeability net more widely.

[33] In support of their argument that it must be assumed in assessing damages that the plaintiff would have used her land in the usual way such land was used at the time of trespass, the appellants cite two trespass cases: G.T. v. D. Saunders, 2014 ONSC 4422, at para. 75, and Costello v. Calgary (City) (1995), 163 A.R. 241 (Q.B.), at para. 54, rev’d in part, 1997 ABCA 281, 152 D.L.R. (4th) 453, leave to appeal refused, [1997] S.C.C.A. No. 566.

[34] Saunders is a case where the damages awarded included damages for the removal of trees. It, in turn, refers to the passage in The Law of Torts quoted above. As I explain above, in the context of the cases on which Professor Fridman relies, the above-quoted passage does not stand for the proposition that it must be assumed that the trespasser will use her land in the way it was used at the time of trespass. Moreover, the above-quoted passage was not material to the analysis in Saunders. Pierce R.S.J. concluded that the modest amount of damages sought by the plaintiff to replace the trees removed was reasonable in the circumstances: the damage was located in a far corner of the plaintiffs’ property and was not immediately visible from their residence.

[35] Costello did not involve the removal of trees; it involved a trespass flowing from an expropriation subsequently declared void. In determining damages for the owner’s temporary loss of use of the property, the trial judge cited Marsan. In Marsan, the Alberta Supreme Court (Appellate Division) wrote that “[a] trespasser must be held to know that the owner of the land will try to use it in any usual and reasonable way which would be profitable to him” (at p. 173). In Costello, the court accepted that the plaintiff would have proceeded to develop a new motel on the expropriated site and awarded damages for loss of operating revenue from the operation of the proposed larger motel. Costello does not stand for the proposition that it must be assumed that the trespasser will use her land in the way it was used at the time of trespass.

[36] Therefore, none of the appellants’ authorities establish that the trial judge was under an obligation to “assume” that Ms. Murphy would only use her land for farmland. That being so, it is unnecessary to consider in what circumstances a trial judge may deviate from that assumption.

[37] As to the application of foreseeability in general, it is not clear to what extent the limiting principle of foreseeability is applicable to intentional torts, such as trespass to land, in Ontario.

[38] As noted above, the appellants rely on a decision of the Saskatchewan Court of Appeal in support of their foreseeability argument.

[39] In response, Ms. Murphy points to an Ontario decision, albeit a decision of a lower court, in support of the argument that foreseeability is not applicable to intentional torts: Allan v. New Mount Sinai Hospital (1980), 28 O.R. (2d) 356 (H.C.J.), rev’d (1981), , 33 O.R. (2d) 603 (C.A.) [4], citing Bettel v. Yim (1978), 20 O.R. (2d) 617 (Co. Ct.), per Borins J. In Allan, Linden J. commented, at p. 365, that “[t]he limitation devices of foresight and remoteness are not applicable to intentional torts, as they are in negligence law.”

[40] Bettel v. Yim [5] was also cited by the Supreme Court in Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 99, where Iacobucci J. noted that “if a tort is intended, it will not matter that the result was more harmful than the actor should, or even could have foreseen.” This comment was made in the context of a discussion about the elements of the tort of sexual battery. [6]

[41] In Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), this court also commented on foreseeability in the intentional tort context. Morden A.C.J.O. noted that “[g]enerally, a trespasser can be liable for unforeseen consequences.” While he did “not suggest that there can be no limit on the damages recoverable as a result of an intentional tort”, in the case before him (which dealt with the torts of trespass and conversion) it was “unnecessary to explore the possible limits.”

[42] Here too it is unnecessary for this court to resolve the application of the concept of foreseeability in assessing damages for the tort of trespass to land involving the removal of trees.

[43] The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 12, citing Allen M. Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), at p. 360. Remoteness is assessed through the lens of reasonable foreseeability.

[44] Here, there is no issue about the foreseeability of the type of harm: the loss of the trees. Mr. Mullen intentionally cut down the tree line.

[45] In their oral submissions, the appellants contended, however, that even though it was foreseeable that someone might build a house on the property, it was not foreseeable that such a person would have an unusual affinity for trees or would plant trees on land that could be used for agricultural purposes.

[46] This is not an issue of failing to apply the concept of foreseeability. Rather, the appellants seek to impugn the trial judge’s finding, in applying Kates, as to what a reasonable person in Ms. Murphy’s position, without monetary constraints, would pay to restore the property had the loss been caused without fault on anyone’s part.

[47] In a footnote to the paragraph in The Law of Torts containing the passage that is central to the appellants’ first argument, Professor Fridman writes that quantification of damages in trespass cases involving trees “has caused courts much difficulty and has resulted in many different ways of dealing with the issue.” He lists the approach in Kates as one of these ways.

[48] The appellants conceded that the approach in Kates was one of the possible methods of assessing damages, although they argued before the trial judge that a different method should be used. The trial judge chose to apply Kates. The framework in Kates takes into account the reasonableness of the plaintiff’s wish to restore the property to its former state, the actual benefit to the plaintiff of the restoration work, and the use to which the injured party has and will put the property: Kates at p. 15.

[49] The trial judge assessed damages from the perspective of a reasonable person in Ms. Murphy’s position – i.e., the position of someone who wanted to build a house on the property, which the appellants conceded was foreseeable. The trial judge found that a reasonable person in Ms. Murphy’s position would wish to replace the privacy and the sound screen of the tree line along the property adjacent to the proposed building area for the home, plus an additional length. The trial judge took into account the fact that any replacement trees would occupy land that could be used for agriculture. Accordingly, she did not accept that a reasonable person would extend the trees for the entire length of the former tree line given that the north end of the property was intended to be used for farmland. Arguably, in considering what a reasonable person in the plaintiff’s position would do, the approach in Kates assesses remoteness. It is difficult to imagine that the actions of a reasonable person would not be reasonably foreseeable.

[50] In these circumstances, there is no merit to the appellants’ foreseeability argument or their argument that the trial judge was required to assume that the plaintiff would use her land in the usual way it was used at the time of trespass.

(2) Other arguments related to Ms. Murphy’s intention to build a house on her property and her affinity for trees

[51] The appellants make three further arguments related to Ms. Murphy’s intention to build a house and her affinity for trees. For the following reasons, none of them persuade me that this court should interfere with the trial judge’s assessment of damages.

[52] First, the appellants argue that, as plaintiff, Ms. Murphy had the onus of providing the court with cogent evidence on which to assess damages. Her assertion that she intended to build a house on the Murphy property was not supported by any objective evidence of her intent or evidence that she would actually follow through on that intent. In accepting Ms. Murphy’s evidence, without corroboration, and without evidence that her intent was objectively reasonable, the trial judge misapplied the burden of proof. Had the trial judge not accepted that Ms. Murphy intended to build a house, she would not have awarded the cost of replacing one third of the tree line.

[53] I reject this argument. In her reasons, the trial judge recognized that Ms. Murphy bore the onus of establishing the damages arising from the appellants’ trespass. Although Ms. Murphy admitted in cross-examination that she had not applied for a building permit, hired an architect, or taken steps to obtain Canadian residency status at the time of the trespass, the trial judge was entitled to rely on Ms. Murphy’s evidence that she intended to build a house on the Murphy property. The trial judge did not reverse the onus of proof. Further, it is implicit from the trial judge’s reasons as a whole that she accepted that Ms. Murphy would probably act on her stated intention.

[54] Second, the appellants submit that the trial judge erred in her application of the test in Kates. An objectively reasonable person in Ms. Murphy’s position, without monetary constraints, would not spend the money to plant trees along 200 metres of the property line. The trial judge erred by applying a subjective standard and infusing the reasonable person with Ms. Murphy’s alleged affinity for trees.

[55] I reject this argument. As I have already stated, the trial judge’s conclusion that a reasonable person would replace 200 metres of the tree line was grounded in multiple factors. These included the privacy, the natural habitat, and the screen against noise and light that the trees provided. It was open to the trial judge to conclude that a reasonable person who intended to build a house would value these elements and want them restored, to a reasonable degree.

[56] Finally, the appellants submit that the trial judge should have discounted the damages award to reflect the low probability that Ms. Murphy would actually build a house. I am not persuaded that the trial judge was of the view that the probability was low. As indicated above, in my view it is implicit from the trial judge’s reasons as a whole that she accepted that Ms. Murphy would probably act on her intention to build a house on the Murphy property. In any event what matters is not whether the house will ultimately be built but rather what remedial work Ms. Murphy would reasonably undertake.

(3) Drainage-related arguments

[57] The appellants make three drainage-related arguments. The first two are related.

[58] Their first argument is that the trial judge engaged in judicial speculation when she rejected their argument that the trees would have had to have been removed in any event, given the subsequent placement of the municipal drains. They say there was no evidentiary support for her conclusion. The impugned passage is the following:

If the hedge row and ditch had remained in place, [Ms. Murphy] would most likely have opposed their removal to accommodate a municipal drain. The drain could possibly have been placed in a different location, or different drainage options could have been considered and/or implemented. It is not certain at all that the trees would have had to be removed to accommodate the drain.

[59] The appellants’ second, and alternative, argument was made only in their factum and not pursued in oral argument. In their factum they assert that the trial judge should at least have reduced the damages awarded to account for what they say is the high probability that the trees would, in any event, have had to have been removed. For this proposition, without elaboration, they cite a personal injury case: Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.).

[60] The respondents counter with Dykhuizen v. Saanich (District) (1989), 63 D.L.R. (4th) 211 (B.C.C.A.). In that case, Taylor J.A. relied on Carr-Harris v. Schacter and Seaton, [1956] O.R. 994 (H.C.J.), and Livingstone v. The Rawyards Coal Company (1880), 5 App. Cas. 25, per Lord Blackburn, for the proposition that a wilful trespasser “is not entitled to say that the damage he did would probably have eventually occurred in any event”: Dykhuizen, at p. 213.

[61] Addressing the appellants’ second argument first, Schrump and its progeny address the approach to the calculation of damages for a future, uncertain loss. In contrast, the loss of the trees was a past, certain loss and the appellants agreed that it was open to the trial judge to apply the approach in Kates in assessing Ms. Murphy’s damages for that past, certain loss. I would not interfere because the trial judge did not apply the principle in Schrump.

[62] Nor would I interfere on the basis that the trial judge engaged in improper judicial speculation.

[63] The appellants called Gerardus Rood, a civil engineer, to testify about the drainage proposals he prepared under the Drainage Act. Those proposals were prepared after Mr. Mullen had removed the trees. Mr. Rood was called as a participant expert, and did not opine as to the chances that the drain could have been placed in such a way as to save some or all of the trees, had they not been cut down. All Mr. Rood could do is predict what effect his proposals would have had on the trees, had they not been cut down. If it were open to the appellants to argue that the trees would probably have been removed in any event, they were required to point to evidence which supports such a finding. The appellants called no expert evidence, and therefore one can only speculate as to what proposals might have been made and approved by the municipality if the trees had not been removed.

[64] As the trial judge found, if the trees had remained in place, Ms. Murphy “would most likely have opposed their removal to accommodate a municipal drain” and “[t]he drain could possibly have been placed in a different location, or different drainage options could have been considered and/or implemented.” This was not improper judicial speculation. Rather, it simply reflected the appellants’ failure to adduce evidence to support their assertion.

[65] The appellants’ third drainage-related argument is that the trial judge erred in accepting the evidence of Ms. Murphy, an absentee owner, that the Murphy property had sufficient drainage, over that of Paul Lantin, the tenant farmer who had farmed the property for many years, that the Murphy property was hard to drain, without providing any reason for doing so. This finding underpinned the award of the cost of the survey Ms. Murphy had to obtain for the purpose of the construction of a new drain by the municipality and the $24,968 cost of the new drain that had been assessed against the Murphy property as damages.

[66] The trial judge’s finding is supported by the record and the path to her conclusion is apparent. Ms. Murphy’s evidence that the drainage was sufficient was supported by Mr. Mullen’s own evidence. He testified that “the water problem wasn’t so much a problem on her side, it was more or less on – on my side. I had – I had – had no drainage at all.”

[67] The drainage on the Murphy property was sufficient in part because of what Mr. Lantin did. Mr. Lantin testified that the Murphy property was hard to drain and that he had to make a furrow to get the water moving. The Mullen property had no sub-surface drainage, and its drainage problem could not be ameliorated by measures such as that taken by Mr. Lantin. It was after Mr. Mullen cut down the trees on the Murphy property that it had drainage problems.

[68] I turn to the appellants’ remaining arguments.

(4) The appellants’ remaining arguments

[69] The appellants make four further arguments.

[70] First, they argue that in assessing damages, the trial judge erred by simply taking one third of Ms. Murphy’s arborist’s estimated cost for replacing the entire tree line. His estimate was based on using 480 trees – a mix of 40 to 50 mm caliper trees and poplar whips – but the trial judge accepted that there were only 300 trees in the tree line. Further, Ms. Murphy had acknowledged that probably one half of the trees removed were on the Mullen property and the trial judge accordingly erred by not discounting the damages for the half of the tree line that was on the Mullen property.

[71] There is no basis to interfere with the trial judge’s calculation of the cost of replacing the trees along one third of the tree line. The expert evidence was that 480 smaller trees were required to replace the tree screen that was removed from the Murphy property. Although the number of trees the expert recommended be planted was well in excess of the number of trees removed the replacement trees were much smaller and the larger number was required to generate an equivalent screen within a reasonable period of time.

[72] Second, the appellants argue the trial judge erred in preferring the evidence of Ms. Murphy’s arborist that a deer fence was necessary to protect the new trees from the local deer population, over that of the appellants’ arborist that deer do not populate the area and, even if they did, a deer fence was not necessary.

[73] There was evidence supporting the trial judge’s finding. She was entitled to prefer the evidence of Ms. Murphy’s expert over that of the appellants. This is not a basis for interfering with the trial judge’s damages assessment.

[74] Third, the appellants argue that the trial judge’s choice of 200 metres as the length of the fence line on which the trees should be replaced and her award of $75,000 for loss of amenities are arbitrary and unsupportable.

[75] I disagree. These determinations are far from arbitrary. Ms. Murphy testified that she wanted to replace the entire tree line. The trial judge concluded that was not reasonable, and, at para. 70, explained why she chose 200 metres:

A reasonable person would, in my view, wish to replace the privacy and the sound screen of the tree line along the property adjacent to the proposed building area for the home, plus an additional length.

[76] Further, the trial judge explained the rationale for the $75,000 amount and how she determined it. As noted above, this amount recognized that Ms. Murphy would be waiting for at least 20 years before she had mature trees at the place where she plans to build her house and that she would most likely never have trees along the entire length of the property line as she did before. The character of the Murphy property was forever changed. As to how the trial judge determined the amount, she noted that it was impossible to determine how many of the 300 trees Ms. Murphy’s son had counted were on the Murphy property, as opposed to the Mullen property, so the trial judge took one half of that amount, namely 150 trees. While there was some precedent for an award of $1,000 per tree [7], because Ms. Murphy did not yet have a house on the property and had not yet started to build, she reduced that sum to $500 per tree. The $75,000 is the product of $500 multiplied by 150.

[77] Finally, the appellants argue that the award of $213,471 is so inequitable and wholly erroneous as to justify appellate intervention.

[78] This argument is unfounded. The appellants have not identified any reviewable error in the trial judge’s assessment of damages and the assessment is not palpably incorrect or wholly erroneous.

D. Disposition

[79] In the result, I would dismiss the appeal, with costs to Ms. Murphy in the amount of $20,000, all inclusive.

Released: December 9, 2021 “P.R.” “Alexandra Hoy J.A.” “I agree. Paul Rouleau J.A.” “I agree. Thorburn J.A.”

[1] Although the statement of claim and style of cause refer to two plaintiffs, the judgment awards damages only to Ms. Murphy. Accordingly, I refer only to her throughout these reasons.

[2] Although the trial judge’s reasons indicate that there has not been a house on the property since the 1970s, that appears to be a typographical error. Ms. Murphy testified that there had not been a house on the property since the 1870s. That timeline coincides with her family’s acquisition of the property.

[3] In Wood Mountain, the defendants were found to be trespassers, and the court granted a permanent injunction and awarded damages for lost rent and punitive damages. On appeal, the main issue was whether the plaintiff was also entitled to damages for the past loss of funding under a federal grant program. The Court of Appeal stated that “[t]he concept of foreseeability applies to the quantification of damages for the tort of trespass” and that “[d]amages for trespass should place a plaintiff in the same position as it would have been absent the trespass”: at paras. 24-25. The court concluded that the losses under the grant program were foreseeable. “One of the direct consequences of this trespass was the loss of the [federal] funding”, and “[o]nce a court finds a loss was caused by a defendant’s wrongdoing, and the loss was foreseeable, the plaintiff is entitled to damages”: at para. 26.

[4] Allan was reversed on the basis that liability was imposed on a ground not pleaded.

[5] More recently, Bettel v. Yim was referred to in Shah v. LG Chem, Ltd., 2017 ONSC 2586, 413 D.L.R. (4th) 546 (Div. Ct.), at paras. 43-46, and Shah v. LG Chem, Ltd., 2018 ONCA 819, 142 O.R. (3d) 721, at footnote 3, leave to appeal refused, [2018] S.C.C.A. No. 520.

[6] Although remoteness was not the point in issue in Scalera, Iacobucci J.’s statement about foreseeability has been adopted by this court, although not in the context of the tort of trespass to land: see, for e.g., Buchanan v. GAN Canada Insurance Co. (2000), 50 O.R. (3d) 89; Meadows v. Meloche Monnex Insurance Brokers Inc., 2010 ONCA 394, 102 O.R. (3d) 312, at para. 23.

[7] In Kates, for instance, the trial judge awarded $1,000 per tree for loss of amenities.