Court File and Parties

CITATION: Yuan v. Matsuura, 2022 ONSC 45

DIVISIONAL COURT FILE NO.: 821/21

DATE: 20220104

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JINWEN YUEN v. YU-MING MATSUURA

BEFORE: D.L. Corbett J.

COUNSEL: Mr Yuan, self-represented Appellant

Dillon Shields, for the Respondent

HEARD: June 21, 2021 by videoconference

ENDORSEMENT

[1] This case arises from a boundary dispute between two neighbours and related claims arising from that dispute. Mr Yuen appeals the decision of Deputy Judge Catherine M. Buie of the Small Claims Court, granting judgment in favour of Ms Matsuura for $4,250, plus $401.00 for disbursements.

[2] Mr Yuen seeks to adduce fresh evidence on this appeal and asks that the judgment below be set aside and the action dismissed.

[3] The Deputy Judge gave oral reasons for judgment after recessing at the conclusion of evidence and argument. These reasons are found starting at page 52 of the trial transcript. They may be summarized as follows:

(a) The plaintiff (respondent in appeal) has lived at 32 Boneset Road for 28 years.

(b) The house next door, at 30 Boneset Road, was purchased by the defendant (appellant in appeal) recently. The appellant and his wife came to Canada about 15 years ago and worked very hard and saved their money to realize their dream of owning their own home.

(c) The houses were bult in 1978. There is a fence between the backyards of the houses that was built by the plaintiff in about 1991.

(d) The backyard fence has gaps between the boards, which allows plants to grow between the boards.

(e) The plaintiff trimmed plants extending on her side of the fence which were rooted in the defendant’s side of the fence. This led to conflict. The conflict escalated and police were called.

(f) The plaintiff’s internet lines were cut and on police advice she photographed the damage and installed external security cameras.

(g) An altercation is recorded on the video camera, which the Deputy Judge reviewed. It did not show everything that happened during the altercation, but the Deputy Judge was satisfied that the defendant was “completely out of control”, acting aggressively, and had to be calmed down by his wife. Criminal charges were laid arising from this altercation, which were disposed of by resolution agreement reached with the assistant of an Assistant Crown Attorney in the Provincial Court.

(h) There were no further problems immediately after the resolution agreement, and then the defendant was out of the country visiting his ailing mother until October 2019. Almost immediately after his return, the old fence was demolished and the new fence constructed.

(i) The court then turned to issues concerning a survey obtained by the plaintiff, replacement of the backyard fence, location of garbage bins, costs related to some flagstones,

(j) The Deputy Judge reviewed a video that showed the defendant removing survey stakes and markers. The survey was to aid in location of the replacement fence. The Deputy Judge admonished the defendant that he was not allowed to remove survey stakes, and the Deputy Judge then concluded that a survey was obviously a good idea given the level of conflict between the parties.

(k) The Deputy Judge noted conflict between the defendant and installers of the fence, which she found unacceptable, and then addressed questions of whether the new fence was necessary and whether the price for it was reasonable.

(l) The Deputy Judge found that the old fence was not in a state of disrepair, but then noted that the gaps between the boards in the fence had been the basis of escalating conflict. She concluded that the plaintiff was justified in replacing the fence with a style of fence that did not have gaps between the boards, in order to remove this source of conflict. She noted that police had been called “numerous times” and she suggested that the new fence, by reducing the potential scope for conflict, would contribute to a state of affairs where recourse to the police would be reduced or eliminated.

(m) The Deputy Judge allowed the claim for a proportionate share of the fence and the survey, subject to a small deduction she made in connection with stone slabs she was not persuaded were a necessary component of the fence.

(n) The Deputy Judge allowed a claim for “parking stubs” in the amount of $59. It is not clear from the face of the reasons what this item referred to.

(o) The Deputy Judge was not prepared to allow a claim for psychological distress in the amount of $5,000, but she did allow $500 for the emotional trauma caused by the defendant’s conduct towards the plaintiff.

(p) The Deputy Judge allowed the claim for security cameras because, in her view, the only reason the plaintiff needed to buy the security cameras was because of repeated misconduct by the defendant.

[4] At the conclusion of the case, the defendant sought to ask questions about the decision. The Deputy Judge repeated and explained her decision again, and it became clear that the defendant understood the decision but was questioning its wisdom and correctness. The Deputy Judge had to tell the defendant to stop several times and to threaten to call security to restore order. The Deputy Judge also advised the defendant that he had recourse by way of appeal to this court if he disagreed with the decision.

[5] The appellant, who is self-represented, raises the following issues in his factum:

The Deputy Judge erred:

(a) Failing to follow the Small Claims Court Rules

(b) Out of the jurisdiction of the Small Claims Court

(c) Unfairly administered the hearing of the trial

(d) Failing to properly apply the Line Fence Act of Ontario

(e) Failing to examine the evidence

(f) Wrong calculation of payment

[6] Points (b) and (d) raise an issue about the effectiveness of a bylaw of the City of Toronto, and for the reasons that follow I direct that notice be given to the City and further written submissions be exchanged in respect to it.

Issues (b) and (d): Jurisdiction of the Small Claims Court and Application of the Line Fence Act to Boundary Fence Disputes in the City of Toronto

[7] The appellant argues that jurisdiction over disputes concerning costs of a line fence are governed by the Line Fence Act, RSO 1990, c. L.17, and that as a result the Small Claims Court has no jurisdiction over the claims in this case.

[8] The LFA provides that an owner may construct and maintain a fence to mark the boundary between adjoining lands (s.3). Section 4 of the Act provides that an owner may have recourse to a “fence-viewer” to “view and arbitrate” various matters related to the fence. An owner may have recourse to this system by notifying the clerk of the local municipality, in this case, the City of Toronto.

[9] In Levy v. Stoller, per J.R. Henderson J., the court was asked to make an order permitting a boundary fence to be built and apportioning the cost between the owners. The court raised the following concerns with this request:

[64] I am concerned about this court’s jurisdiction to make an order permitting the defendants to build a boundary fence and obtain reimbursement for a share of the cost from Levy. The Superior Court of Justice has inherent jurisdiction to adjudicate claims of virtually any subject matter, except where there is a statutory scheme intended to administratively determine the claim. See the case of TeleZone Inc. v. Canada (Attorney General), 2008 ONCA 892 at paras. 4 and 108.

[65] The Line Fences Act sets up a statutory scheme to deal with situations in which an owner desires to construct a boundary fence. Section 4 states that the owner should apply to the clerk of the local municipality for the appointment of a fence-viewer to view the property and arbitrate the dispute. I received no submissions as to whether the Superior Court of Justice has jurisdiction to deal with such a matter prior to the appointment of a fence-viewer.

[66] Furthermore, if this court does have jurisdiction, the only evidence that I have is that the defendants wish to erect a split rail fence. I do not have any evidence of the composition of the fence, the dimensions of the fence, or the cost of the fence. It is imperative that this information be provided to this court prior to any decision.

[67] Therefore, I will allow the parties some time to consider the issues of jurisdiction, and the nature and cost of the fence. I am hopeful that the parties may be able to resolve these issues. If not, the parties may contact the Trial Co-ordinator no earlier than 60 days from the date of this decision to appear before me to make submissions on these issues.

There is no reported decision following up on this decision. The court file does not contain an unreported decision on the issue. I infer that the issue was never returned to the trial judge and so we do not have the benefit of his decision on the issue of jurisdiction.

[10] The City of Toronto purported to opt out of the LFA pursuant to s.109 of the City of Toronto Act on May 22, 2018 [By-law 641-2018] (Toronto Municipal Code, s. 447-2.1). Toronto used to provide “fence-viewers” to mediate disputes under the LFA, but it stopped providing this service when it purported to opt out of the LFA.

[11] If Toronto’s opt-out was effective, then the LFA does not apply in this case, and the regular civil courts have jurisdiction over boundary fences. On this basis, the appellant’s first ground of appeal, based on jurisdiction, would fail.

[12] However, it is not clear that the City’s opt-out of the LFA is effective. Its authority to opt out of this provincial legislation is found in two laws. Section 26 of the LFA states:

This Act, except section 20, does not apply to land in an area that is subject to a by-law for apportioning the costs of line fences passed under the Municipal Act, 2001 or the City of Toronto Act, 2006, as the case may be.

Subsection 109(1) of the City of Toronto Act, 2006 provides:

The City may provide that the Line Fences Act does not apply to all or any part of the City.

[13] The City of Toronto bylaw opting out of the Line Fence Act provides:

§ 447-2.1. The Line Fences Act.

The Line Fences Act, except for section 20, does not apply to all of the City of Toronto.

[14] Reading all of these provisions together, there appears to be a problem. The bylaw does not “apportion the costs of line fences.” The City’s position seems to be that neighbours should settle these issues between themselves or take the issues to court. However, Toronto has provided no governing principles for apportionment of the costs of boundary fences. The governing principles in the LFA do not apply in Toronto, if the opt-out bylaw is effective.

[15] I am not aware of any common law legal principle providing that the cost of boundary fences is shared between neighbours. In Ontario, that principle appears to be found in the LFA. Toronto was entitled to opt out of that Act, but only in a “bylaw for apportioning the cost” of such fences. The opt-out bylaw contains no such mechanism.

[16] This appears to lead to one of two results in law. Either the Toronto bylaw is ineffective because it fails to comply with s.26 of the LFA. In this event, the LFA still applies in Toronto. Alternatively, there are no principles established by legislation or bylaw to apply to disputes over boundary fences in Toronto.

[17] This is a small but serious matter. Conflict over boundary fences is a regrettable fact of life. The LFA is remedial in nature, designed to limit and resolve conflict. The proviso in s. 26 of the Act makes it clear that the Province allows local governments devise their own apportionment schemes. It does not appear to contemplate that a local government would decide that there will be no governing principles respecting these disputes, leaving it to the courts to create the applicable principles.

[18] The court’s own research has not uncovered a sensible solution to this dilemma. But perhaps there is one, or perhaps the principles can be found in the law somewhere. The City, which had the responsibility “for apportioning the costs”, should have an opportunity to address this issue before this court makes findings about the effectiveness of one of the City’s bylaws, or the compliance (or lack thereof) of the City with provincial law when purporting to opt out of a provincial statute.

[19] A copy of this decision shall be provided to the Legal Department of the City of Toronto by court staff and the City shall have until January 31, 2022 to make brief written submissions on these issues. After those submissions are received, the appellant shall have until February 14, 2022 to provide brief written responding submissions. The respondent shall then have until February 28, 2022 to make brief written responding submissions. I will not set a page limit on the City’s submissions. The appellant and the respondent shall each be limited to seven pages of written submissions.

“D.L. Corbett J.”

January 4, 2022