ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-0032-00

DATE: July 23, 2014

B E T W E E N:

G.T., N.T. and C.C.

Cheryl Siran, for the Plaintiffs, Defendants by Counterclaim

Plaintiffs

-and-

Daniel Saunders, James William Saunders and Laura Charmaine Saunders

The Defendants, Plaintiffs by Counterclaim, are Self Represented

Defendants

HEARD: July 7-9, 2014,
at Kenora, Ontario

Regional Senior Justice H.M. Pierce

Reasons for Judgment

Introduction

[1] The plaintiffs jointly own a piece of forested property in Northwestern Ontario which they have maintained in its natural state as a nature sanctuary. This property is adjacent to lands owned by James Saunders and Laura Saunders (“the defendants’ property”), who are the registered owners. James and Laura Saunders live in a home about three miles distant from the property which is the subject of this case.

[2] With the Saunders’ consent, their son, Daniel Saunders, and their grandson, Dannon Kowalik, are constructing a house on the defendants’ property that abuts the plaintiffs’ lands. Before this case, Daniel Saunders and his son accessed the defendants’ property using a “quad trail” that had been developed on the defendants’ property for use by all-terrain vehicles and snow machines.

[3] In time, an all-weather road was constructed to improve access to the defendants’ property. It is this road that is the subject of the trespass action.

[4] The plaintiffs claim that the defendants constructed a portion of road that encroached substantially on their property. They say that the slope of the land was altered and that many trees were cut down in the process. Consequently, they claim a permanent injunction against further trespass by the defendants, damages for trespass, and punitive damages.

[5] The court must determine whether a trespass was committed and if so, by whom. If the court finds that a trespass was committed, then what damages flow from it?

[6] The defendants counterclaimed, alleging that the plaintiffs defamed them by publishing libelous letters to the defendants’ neighbours. The plaintiffs submit that the claim was not proven, or alternatively, that the letters were not defamatory in that the content of the letters was true.

The Law of Trespass

[7] Trespass is said to be the oldest of all causes of action in the law of torts: The Law of Torts in Canada, 3rd Ed., by G.H.L. Fridman, Q.C., F.R.S.C., (Toronto: Carswell, 2010) at p 21. Professor Fridman describes trespass as “an unjustified and direct interference by force with another’s land, person or goods,” (p. 21). The essence of trespass to land is “an unjustifiable interference with possession” of land (p.41). In advancing this claim, a plaintiff must first prove that he or she was in possession of the land. There is no issue in this case that the plaintiffs were titled owners and in possession of the land.

[8] At pp. 30 - 32 of his text, Professor Fridman notes that the courts have determined trespass occurred in instances of excavating on the plaintiff’s property, improperly dealing with trees on the plaintiff’s land, and “removing timber from the plaintiff’s land in mistaken belief that the boundary between the defendant’s and the plaintiff’s properties put the timber in the property of the defendant.”

[9] Professor Fridman explains that trespass was once a tort of strict liability, such that the defendant’s state of mind was irrelevant. Even an unintentional or negligent trespass would attract liability (p. 38). However, in his analysis, found between pp. 38 – 40, he points to an unsettled state in the law as to whether the defendant’s state of mind is a necessary ingredient to find liability in trespass.

[10] Dealing with Ontario authorities, the Court of Appeal held in F.W. Jeffrey Ltd. v. Copeland Flour Mills Ltd. (1922), 52 O.L.R. 617 at 620 that trespass to land is actionable even if it is unintentional. This appeared to be the state of the law until the “equivocal” decision of the Ontario Court of Appeal in Henderson v. Volk (1982), 1982 1744 (ON CA), 35 O.R. (2d) 379, where the court absolved the plaintiff of liability for trespass for unintentionally erecting a fence on the defendant’s land in the mistaken belief that the land was his. The court characterized the building of the fence as “a technical trespass” but since the fence could readily be removed, the plaintiff was not liable for trespass. Professor Fridman explains that the case is equivocal because it suggests that the plaintiff was and was not guilty of trespass.

[11] In Bell Canada v. Cope (Sarnia) Ltd. (1981), 1980 1868 (ON CA), 15 C.C.L.T. 190 (Ont. C.A.) and Bell Canada v. Bannermount Ltd. (1973), 1973 409 (ON CA), 35 D.L.R. (3d) 367 (Ont. C.A.), Professor Fridman comments that the court suggests that trespass must be committed intentionally or negligently. He adds that the court held that the defendant bears the onus of proving he or she did not intend to trespass and did not act negligently.

[12] In a case cited by the plaintiffs, Wigle v. Vanderkruk, [2005] O.J. No. 3032 (S.C.J.), the court held that the intention of the defendant was irrelevant. At para. 81, the court concluded:

The requisite intent for trespass is present if the defendant desires to make an entry on the land regardless of whether he is aware or not that he is thereby interfering with another’s rights: Fleming, supra at 46. Where the entry is intentional, it is actionable even where it is under a mistake of law or fact or where the defendant honestly believed that the land was his own or that he had a right of entry on it: Klar et al., supra at 23 – 25.

[13] However, on the facts in Wigle, the court found that the defendant lacked an honest or reasonable belief that the land was his before constructing a greenhouse on it and that he was negligent in doing so.

The Facts

[14] At the time of these events, Daniel Saunders was resident on the defendants’ property.

[15] After hearing reports from others in the summer of 2011, the plaintiff, G.T., and her husband, I.T., went to investigate the southern corner of the plaintiffs’ property, where it meets the defendants’ property. There is no fence on the property line. The T. were shocked to find that a road was being constructed at the entrance to the plaintiffs’ property by the creek and that trees had been taken down. The road did not follow the quad trail that they believed was wholly within the defendants’ property. Rather the road appeared to stray onto the plaintiffs’ property.

[16] Ms. G.T. recognized the operator of the heavy equipment, Rene Duguay, and immediately went to the home he shared with his parents. She told them that the road was on her property and that she intended to take legal action. She demanded that the machinery be removed. Duguay did so. A few days later, the equipment was back working. The T. took photos.

[17] While Ms. G.T. was at the Duguays’, her husband went to the residence of James and Laura Saunders where he spoke to Laura Saunders. The conversation was apparently heated. Mr. I.T. asked Ms. Saunders to have her son, Daniel Saunders, stop the road construction and indicated that a suit for damages would follow. Although Ms. Saunders did not testify at trial, I accept the testimony of her grandson that she was upset. She told Mr. I.T. that the road was not on the T. property. Mr. I.T. left.

[18] Mr. I.T. testified that he went back to the site where he took photographs of the backhoe working on the road. Daniel Saunders and Dannon Kowalik arrived immediately. I.T. stated that Daniel Saunders grabbed his camera and threatened to throw it in the creek. Although he was present, Dannon Kowalik stated that he did not see his father seize the camera. I do not accept his evidence on this point. I find that Mr. Kowalik was aware of the dispute, having been present at his grandmother’s home for Mr. I.T.’s visit and would have been focused on the confrontation between his father and Mr. I.T..

[19] Daniel Saunders produced a line on a survey and insisted that the road was within the defendants’ property. His evidence conflicts with that of James Saunders who testified he was the only one who knew where the boundary line was.

[20] I.T. stated that James Saunders came to the T. residence with a document he said was a survey plan and discussed the construction with I.T.. The time frame for this encounter is not clear, but I conclude I.T. refers to a time after construction began; otherwise the T. would not have been shocked by the construction.

[21] Mr. James Saunders disputes that he came to the residence. He testified that he had no conversation with Mr. I.T. once the construction began. Rather, he testified that they had a conversation some years earlier over a shack that the plaintiffs considered the defendants had built on their land.

[22] I find it probable that Mr. James Saunders attended at the T. residence and spoke to Mr. I.T.. I.T. recalls going outside to meet Mr. Saunders and stated that their discussion took place in the driveway. He added that Saunders tried to persuade him that the construction was in the right place. The T. never made an issue about the construction of the shack, which they also believed was on the plaintiffs’ property.

[23] The events that followed indicate that the T. did not believe that the road was being constructed on the defendants’ land.

[24] James Saunders testified that he was the only family member who knew where the property line was. He stated that he was in Mexico at the time construction on the road began. He said he saw the work when he came back. When the T. discovered the construction, I.T. went immediately to the home of James and Laura Saunders and spoke to Laura Saunders. They were not away for the winter as James Saunders implied.

[25] James Saunders stated that he was not very happy that his son, Daniel Saunders, had started the road work without consulting him as he did not tell Daniel where the property line was. If the road was built on the defendants’ land, there would have been no reason for his unhappiness.

[26] James Saunders also testified that the construction was started by the new owners of the land.

[27] I do not accept his evidence on this point. By the time of trial, the parcel register in the Land Registry office showed that James and Laura Saunders had been the continuous registered owners the land adjacent to the plaintiffs’ property since 1996 (exhibit 14). The statement of defence in this proceeding also admits that James and Laura Saunders are the registered owners of the property as alleged by the plaintiffs.

[28] Daniel Saunders disputed that the road work began in 2011. His account was that Mr. Hagen began building the road in 2010, but he agreed that it was the summer of 2011 when the main part of the road was being worked on.

[29] He also disputed that he was constructing a driveway. He said that his neighbour, Mr. Hagan, built the road. Daniel Saunders denies that this was his decision to build the road or that he arranged for its construction. Mr. Daniel Saunders testified that he and his son were quite happy with the way they were getting in and out, following the quad trail.

[30] Mr. Daniel Saunders is not credible on this point. At his examination for discovery, when asked what he did in the spring of 2011, he answered that he “got hold of Rene Duguay to rough the road in, rough the trail to follow the existing trail that was in and that was it.”

[31] Ms. G.T. testified that she observed Rene Duguay doing the work but that Daniel Saunders seemed to be in charge. She added that Daniel Saunders insisted that the T. “get the F off his road.”

[32] Daniel Saunders stated that Hagan asked to use fill from the defendants’ property to build the road and he gave his permission. He added, “I wasn’t too happy when I saw the amount of damage Hagan did in digging out my hill for gravel.” He testified that Hagen left a big mess that he had to clean up and that large rocks were taken from his pit. He also observed that the soil disturbance was washing into the creek and he was worried about being fined by the Ministry of Natural Resources for disturbing the creek.

[33] Mr. Daniel Saunders testified that his parents co-signed a loan for him in the amount of $30,000 - 40,000 to build an all-season road on the defendants’ property. Why would they go to this expense if the existing quad trail was satisfactory for road access?

[34] Furthermore, the defendants’ statement of defence states:

The Defendant, Daniel Saunders, determined to improve the road prior to building a house on the Saunders property.

[35] Mr. Saunders disavowed this admission in his testimony even though he was questioned on the statement of defence at his examination for discovery.

[36] Daniel Saunders’ son, Dannon Kowalik stated in cross-examination that they began work upgrading the quad road in the summer of 2011. He indicated “We were brushing the beginning of the road.” I conclude from the context that he was speaking of himself and his father.

[37] He claimed that he was putting the driveway in with his grandparents’ knowledge. This testimony conflicts with the admissions in the pleadings, the evidence of James and Daniel Saunders and even his own testimony. Furthermore, his grandparents did not co-sign a loan for him to build a second road; that loan was made to his father, Daniel. In my view, Mr. Kowalik’s testimony was intended to deflect responsibility from the defendants. It is not credible.

[38] Before and after road construction, none of the defendants took steps to confirm that the road was indeed on the defendants’ property. They stubbornly believed that it was on the defendants’ property even when presented with evidence to the contrary. Despite Daniel Saunders’ testimony that he was aware of a dispute in May of 2012, I find that the defendants were all aware in the summer of 2011 that there was a disagreement about where the boundary lay.

[39] Mr. James Saunders testified that he had taken a course in surveying in 1988 when he was in the military to determine weapons trajectories and thus he knew about surveying. He agreed in cross-examination that he had not apprenticed to a surveyor and was not licensed as a surveyor.

[40] When it became evident that the defendants intended to continue construction, despite the plaintiffs’ objections, the T. immediately contacted Ross Johnson, an Ontario Land Surveyor, and asked him to prepare a survey. The T. and Mr. Johnson testified that Johnson was fully occupied that summer and could not immediately prepare a survey. Mr. Johnson’s first invoice to the T. for services rendered is dated January 4, 2012. Thus, I conclude that the major road work began in the summer of 2011. I also find that Daniel Saunders was directing it.

[41] Mr. Johnson was qualified to give expert testimony in land surveying. He was not shaken in cross-examination. There was no expert evidence to the contrary. He testified that a road 6 metres wide was built to access the defendants’ property which encroached for a distance of 198 metres on the southern boundary of the plaintiffs’ property before it swung south again back into the defendants’ property. He added that the road intruded as much as 18 metres into the plaintiffs’ land at the furthest point (exhibit 22). I accept his testimony. He is an experienced professional surveyor who had twice surveyed the boundary line; he is not embroiled in the dispute.

[42] As it happens, Mr. Johnson did previous field work for James Saunders as to the boundary in 1994 or 1995; however, he was not retained to complete the plan of survey. Mr. James Saunders testified that he was present for the 1995 survey and saw all the posts in place. If so, he should have seen the boundary line traced by the earlier Johnson survey. Mr. Johnson testified that the results of both surveys were the same except that the Saunders’ survey was expressed in feet, the plaintiffs’ survey in metres.

[43] Armed with the survey proving the incursion, the plaintiffs’ counsel wrote to Daniel Saunders on March 9, 2012. The text of the letter follows:

We advise that we have been retained by G.T., N.T. and C.C. with respect to your recently found continued trespass to the above-mentioned property by the construction of a road thereon.

Due to your denial of this trespass a survey was prepared by Ross M. Johnson Surveying Ltd. on February 29, 2012, a copy of which is attached for your information, confirming that you have constructed and are using a road that lies almost entirely within our clients’ property.

This letter will serve as notice pursuant to the Trespass to Property Act, R.S.O. 1990 that you are hereby prohibited from attending on said road and any other part of the lands of G.T., N.T. and C.C., at R.R. #1, 231 Ostersund Road, Keewatin, Ontario.

For your further information, the Ontario Provincial Police have been notified of this trespass and will be receiving a copy of this notice.

Our clients will hereby be constructing barriers at each road entrance boundary of their property on the said road within which if you are found trespassing the Ontario Provincial Police will be notified.

Failure to comply with this request may result in a prosecution under the Trespass to Property Act.

[44] The trespass notice was served personally on Daniel Saunders by a bailiff. James and Laura Saunders were provided with a copy of the letter and enclosures sent to Daniel. Daniel Saunders denied that he received the trespass notice. I find that he was not truthful on this and other points. Generally his testimony was evasive, and contradictory, even compared to the defendants’ evidence or their pleadings. He refused to admit the obvious. Eventually, he grudgingly admitted in cross-examination that he was served with “paperwork” concerning the start of the driveway but denied that the trespass notice was put in his hands. He also didn’t recall receiving a smaller version of the survey attached to the trespass notice. Notwithstanding these denials, he testified that he retained counsel after receiving the letter. It is implausible that he would do so if he had not received the trespass notice.

[45] I find that Daniel Saunders was personally served with the notice and well aware of the plaintiffs’ survey and their position that he was trespassing. Exhibit 7 is a collection of date-stamped photographs from March 19, 2012 showing Daniel Saunders filming the road closure. In cross-examination, he conceded that he knew of the boundary dispute in March of 2012.

[46] The plaintiffs gave their neighbours one week’s notice that they intended to close the road on March 19, 2012 in order that any vehicles that might be land-locked by the road closure could be removed.

[47] On March 19, 2012, the morning of the road closure, the T. discovered that the tires on their tractor and snow plow truck had been slashed. On another occasion, the vegetable cart their grandson set up was smashed and the money box taken. The T. did not see the perpetrators but submit that no one apart from the defendants had an interest in the road closure. They ask the court to draw an inference that the defendants or some of them were responsible for this damage.

[48] On March 19th I.T. attended on the road and erected a barrier of rebar and flagging tape on wire to block access to the road. Daniel Saunders filmed him doing so. Dannon Kowalik was also present. Daniel Saunders called the police who attended the site. The police who attended were not familiar with the dispute. They were persuaded by Daniel Saunders that the barricade should come down. The police agreed and advised Mr. Saunders to obtain his own survey within two weeks in order to resolve the dispute.

[49] When the police left, Mr. Saunders drove over the wire barricade with his truck. He admitted doing so. The T. testified that Daniel Saunders shouted at them from his vehicle, “Get the fuck off my land you fucking fuckheads.” Ms. G.T. described him barreling down the road such that she and her husband jumped into the ditch to avoid being hit.

[50] Despite the trespass notice, Ms. G.T. observed James and Daniel Saunders continuing to drive their vehicles on the disputed road. The T. also noticed more trees being removed. Still, the defendants produced no survey.

[51] The plaintiffs sought a court order enjoining the defendants from trespassing on their lands. The defendants consented to an order granted by Mr. Justice E.W. Stach on May 16, 2012 prohibiting them, their servants or agents, from “excavating in, entering on or otherwise trespassing on the plaintiffs’ lands and premises….”

[52] Daniel Saunders was subsequently charged, pursuant to the Criminal Code, with breaching that court order. He testified that the case was thrown out. This was patently untrue.

[53] Mr. Justice D. Fraser ordered Daniel Saunders to enter into a peace bond on January 30, 2013, pledging $500 without deposit. The terms of the peace bond were that he keep the peace and be of good behaviour for a period of twelve months “especially toward G.T. [sic] and I.T. and not be on their property” and that he have “no communication, direct or indirect, with G.T. and I.T. except through a lawyer qualified to practice law in Ontario.”

[54] Because the defendants continued to use the road in violation of the court order, the plaintiffs’ solicitor advised them to dig it up so that it would be impassable. On July 5, 2012, both ends of the road were dug up and boulders were placed at the ends. The road was impassable from that time.

[55] In September of 2012, the defendants constructed a road on the other side of the creek.

[56] Incidents of harassment continued against G.T and I.T..

[57] In the summer of 2013, the T.s’ son planted and staked trees by their barn. Someone uprooted them and tossed them into the middle of the road. The T. did not see the perpetrator.

[58] Daniel Saunders made reports to the police in the fall of 2013 that Ms. G.T. was trespassing on the defendants’ property. The police attended at the T. residence at midnight and took her statement in which she denied being off her property. On another occasion, Ms. G.T. received a telephone call from the police about a trespass complaint. The following day she attended at the police station to give a statement.

[59] On the day before trial commenced, Ms. G.T. received a call from Lori Potts, a woman who proposed to act as the defendants’ agent to present their case at trial. The call display feature on the phone showed the call as emanating from the telephone of D. Saunders. Ms. Potts advised that if the plaintiffs didn’t drop the case by 3 p.m. that day, she had affidavits from a number of individuals alleging that Mr. I.T. had sexually assaulted them during his teaching career. She proposed to take the affidavits to the police. Ms. G.T. viewed the matter as extortion and reported it to the police.

[60] I find it probable that Daniel T. was aware of this call made from his telephone. There was no evidence to the contrary. However, there is no evidence whether he authorized the call.

[61] Ms. G.T. testified that the last three years have been very stressful. There has been repeated involvement with the police and damage to their belongings. She is afraid to walk her dog, ski or snowshoe on the plaintiffs’ southern property without fear of harassment by Daniel Saunders. The T. now live with locked doors, yard lights on and surveillance cameras, which is not the peaceful retirement she envisioned. In the midst of this, I.T. was undergoing chemotherapy.

[62] I conclude that all the defendants committed an unjustified and direct interference by force with the plaintiffs’ land. This interference constituted trespass.

[63] I find that the defendants trespassed on the plaintiffs’ property when Daniel Saunders constructed or caused the construction of a road as identified in exhibit 22. It is probable that this route was selected to avoid objections from the Ministry of Natural Resources that a road constructed on the defendants’ land was too close to the creek and might disrupt fish habitat.

[64] All three defendants were aware of the road construction from the outset and supported it even after the plaintiffs objected. This conduct was negligent and reckless. At best the defendants simply estimated the location of the property line before starting construction. They continued with the construction and defended it even when presented with a survey establishing the property line.

[65] Daniel Saunders and James Saunders ignored the trespass notice and breached the court order enjoining them from further trespass. James Saunders and Daniel Saunders continued to use the road once it was constructed. Because the road met their needs, the defendants used it over the plaintiffs’ objections. This was not inadvertent, but intentional. I find that the trespass continued until the road was finally closed.

[66] Daniel Saunders or persons associated with him continued to harass G.T and I.T..

[67] The defendants have not acknowledged their error and have not expressed remorse. Daniel Saunders asserted at trial that he still believes the road was on the defendants’ land.

Defamation

[68] The defendants counterclaimed against the plaintiffs for damages for defamation. They allege that the plaintiffs published and distributed defamatory statements to the neighbours claiming that the character of the defendants is “aggressive, lawless, and dangerous to the environment and the neighbourhood.”

[69] There is no evidence that N.T. or C.C. had any communication with the defendants’ neighbours.

[70] G.T. testified that, upon the advice of her lawyer, she wrote twice to the individuals on Library Camp Point. The first letter, (exhibit 8) dated March 13, 2012, explains the pending road closure as a result of the trespass notice served on Daniel Saunders.

[71] The second letter, (exhibit 12) dated July 16, 2012, explains the rationale for digging up the road in view of the continuing trespass and the efforts the plaintiffs made to resolve the dispute.

[72] Mr. Daniel Saunders confirmed at trial that the defendants were not abandoning the counterclaim. However, there was no evidence adduced at trial and no submissions made during closing argument about the defamation counterclaim. There was no evidence that the defendants were exposed to scorn or ridicule or that their reputations were damaged in light of these letters.

[73] The counterclaim in defamation is therefore dismissed.

Damages for Trespass

[74] What is the appropriate scale of damages in the circumstances?

[75] Professor Fridman discusses damages for trespass, starting at page 57 of his text. Generally foreseeable losses are recoverable on the basis that the “plaintiff would have used his land in the usual way such land is used” (p. 58). Compensatory damages are recoverable to put the plaintiff, as nearly as possible, in the position he was in at the time of the trespass. These include compensation for repairing excavation on the plaintiff’s property and for cutting the plaintiff’s trees (pp 57 – 58).

[76] In this case, the plaintiffs wish the land restored to the wild state it was in before the defendants trespassed. They concede that the cost of repla