COURT FILE NO.: 54162/13
DATE: 2014/02/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FIELDING ESTATE WINERY
Monique Atherton, for the Plaintiff/Respondent
Plaintiff/Respondent
- and -
EARL WALTERS and E. WALTERS FARMS
Luigi De Lisio, for the Defendants/Appellants
Defendants/Appellants
HEARD: February 4, 2014
The Honourable Madam Justice W.L. MacPherson
ENDORSEMENT
[1] This is an appeal from the decision of Deputy Judge McDowell, of the Small Claims Court, sitting at St. Catharines, Ontario, dated December 13, 2012. In that decision, Deputy Judge McDowell found that the appellants had trespassed on the property of the respondent and awarded damages to the plaintiff/respondent in the amount of $11,197.87, plus pre-judgment interest calculated from May 18, 2011, post-judgment interest, plus costs in the amount of $5,001.65 inclusive of disbursements.
OVERVIEW
[2] The respondent owns and operates a winery at 4020 Locust Lane, Beamsville, in the Town of Lincoln. The appellant, Earl Walters, lives at 3999 Zimmerman Road, Beamsville, and is the president of the corporate appellant. The properties are separated by Zimmerman Road.
[3] In the spring of 2001, the appellants caused a line of posts to be erected on the west side of Zimmerman Road. A survey contracted by the respondent in 2002 indicated that approximately 15 of those posts were located on the respondent’s property. The appellants refused to remove the posts. In June 2005, the appellants wrote to the respondent offering to remove the posts, indicating they had been placed on the respondent’s property in error. However, the posts remained on the respondent’s property for a further five years, until they were removed by the appellant on March 30, 2010, as a result of an ultimatum by the respondent’s lawyer. The appellants erected a gate across Zimmerman Road, which was ordered removed by the Town of Lincoln, along with the remaining posts along the west side of Zimmerman Road. The appellants did not comply with the order and the Town removed the gate and posts. The appellants did not appeal that order.
[4] The respondent commenced a claim for damages in trespass on May 18, 2011.
ISSUES
[5] The appellants raise three issues in the notice of appeal and factum:
(i) Did the trial judge err in his finding of fact that the appellants trespassed on the respondent’s lands?
(ii) Did the trial judge err by conferring rights to the local municipality with respect to ownership of Zimmerman Road?
(iii) Did the trial judge err with respect to the application of the limitations period to the claim in trespass?
RELIEF REQUESTED
[6] In the factum, the relief requested was that the judgment under appeal be set aside and in its place, a judgment dismissing the plaintiff’s claim, and for costs to be fixed by this court.
[7] In the notice of appeal and factum, there was no indication that the appellants were appealing the trial judge’s findings with respect to quantum of damages or costs. However, in his submissions, counsel for the appellants argued that the claim for the cost of the culvert ($3,500.00) and the claim for the cost of the 2002 survey ($1,500.00) were statute barred by virtue of the Limitations Act.
[8] It is the position of the respondent that the appeal should be dismissed with costs.
THE LAW
[9] The appropriate standard of appellate review of a trial decision is set out in Housen v. Vikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. It was there held that an appeal is not the re-trial of a case, rather the appropriate standard of appellate review on pure questions of law is one of correctness and an appellate court is accordingly permitted to replace the trial judge’s opinion on a matter of law. The appellate court, however, cannot reverse findings of fact unless the trial judge has made a palpable and overriding error. One of the reasons for this more limited scope of review in respect of factual issues is based on recognition of the expertise of trial judges and the advantage that they have in having observed the presentation of the evidence. Inferences of fact are to be reviewed on the same standard as findings of fact. Questions of mixed fact and law, those involving the application of the legal standard to a set of facts, again, are to be reviewed on the standard of “palpable and overriding error.”
ANALYSIS
(i) Did the trial judge err in his finding of fact that the appellants trespassed on the respondent’s lands?
[10] In coming to the conclusion that a trespass had occurred, Deputy Judge McDowell referred to the two surveys, one done by Mr. Kirkup dated July 2002, and the survey completed by Mr. Cameron in 2012.
[11] In his judgment, it was clear that he preferred the evidence of Mr. Kirkup and it is also clear that there were ample reasons for doing so. He referenced the fact that Mr. Kirkup had done extensive research. He noted that this research was important and had included research as to the history of Zimmerman Road back into the 1800s in order to reach a conclusion that Zimmerman Road was a given or travelled road. He also referenced historical photos taken in 1934 and 2002 showing a similar landscape along Zimmerman Road.
[12] In contrast, Deputy Judge McDowell referenced in his judgment that although Mr. Cameron expressed an opinion that Zimmerman Road was a private lane, the basis of that opinion was “that it looks like a private lane”. Mr. Cameron confirmed that his survey being done after the posts had been removed would be of no use in determining where and whether any obstruction might have occurred. He also referenced Mr. Cameron’s evidence as to an explanation for the placement of survey stakes as being a “best guess.”
[13] Deputy Judge McDowell also referenced the fact that when Mr. Kirkup was asked about Mr. Cameron’s conclusion that this was a private lane, he was able to reference his review of past records in a 1980 Matthew’s survey, which showed Zimmerman Road as a trespass road. He also referred to a Reference Plan deposited on January 10, 1981 which showed Zimmerman Road as an unopened road allowance and a Property Index Map dated May 1, 2008 which shows Zimmerman Road as a travelled road. The clear evidence of both Mr. Kirkup and Mr. Cameron, as noted in the judgment, was that they both agreed that a trespass road and a travel road is a reference to a public road.
[14] Having reviewed the judgment, as well as the transcript, I find that there was ample reasons for Deputy Judge McDowell to favour the evidence and opinion of Mr. Kirkup over the evidence of Mr. Cameron and that he made no error in finding that the Respondent had established that Zimmerman Road is a travelled road under the jurisdiction of a public authority, that public authority being the Town of Lincoln.
[15] Deputy Judge McDowell continued to determine whether or not a trespass had occurred. Based on the evidence of Mr. Walters as to the installation of the posts in 2001 and removal of same in 2010 and the installation of the gate which was removed by the Town of Lincoln; the evidence of Mr. Kirkup; and Mr. Cameron agreeing that the Kirkup survey showed 15 posts on the Fielding property; and the evidence of Mr. Fielding, no error was made in finding that a trespass had occurred.
(ii) Did the trial judge err by conferring rights to the local municipality with respect to ownership of Zimmerman Road?
[16] Although in the notice of appeal and factum, reference was made to the trial judge having erred by conferring rights to the local municipality and making a declaration with regard to ownership of Zimmerman Road, it is clear that Deputy Judge McDowell was well aware that he had no jurisdiction to make such a declaration. It was necessary for him to make a finding of fact in order to deal with the issue of trespass and to also deal with the defence raised by the defendants/appellants herein that they were entitled to the property and to put the posts up by way of adverse possession.
[17] As conceded by counsel for the appellants in argument of the appeal, it again goes to the evidence that he prefers and as I have indicated Deputy Judge McDowell had ample reason to prefer the evidence of Kirkup and there is no basis to set aside that finding.
(iii) Did the trial judge err with respect to the application of the limitations period to the claim in trespass?
[18] In argument, Mr. De Lisio stated that this was the main focus of the appeal, namely that the Small Claims Court Judge had erred in awarding $1,500.00 for the cost of the 2002 survey and $3,500.00 for the cost of building the culvert. If this argument is accepted, then the request is to in essence reduce the damages award by $5,000.00.
[19] The basis for the argument was that as the survey cost was incurred in 2002 and the culvert cost was incurred sometime between 2002 and 2007, these damages were incurred outside of the two year limitation period being the date of commencement of the claim on May 18, 2011 and should be statute-barred.
[20] There was no such argument raised in either the Notice of Appeal or in the Factum.
[21] It is clear from the judgment of Deputy Judge McDowell, that before awarding the damages claimed, he had to be satisfied that they all properly flowed from the trespass. He was provided with case law from the respondent/plaintiff (Sackrider v. Slingerland, [2006] O.J. No. 4211) in support of its position that not only the culvert building costs, but also the 2002 survey cost and the legal fees prior to the commencement of the proceeding were proper damages. He also referenced the case of Nor-Video Services v. Ontario Hydro (1978) 1978 CanLII 1567 (ON SC), 19 O.R. (2d) 107, a decision of the Superior Court of Ontario to bolster the position that these are proper damages. If there was an issue about the Limitations Act applying to those damages, then that could have been raised when submissions were made, but it appears that it was not.
[22] No error was made in finding that the respondent/plaintiff incurred the culvert and survey costs and legal fees to end the trespass and in finding that those damages were recoverable in the trespass action. As noted in the judgment, the fact that the 2002 survey by Mr. Kirkup was a critical piece of evidence was another factor in favour of this being included in the award of damages.
ORDER
[23] After considering the submissions made on the appeal and having reviewed the transcripts, I have no difficulty in concluding that the findings of fact made by Deputy Judge McDowell were supported by the evidence adduced, and as I am not able to reverse findings of fact unless I find that the Judge has made a palpable and overriding error, the appeal is dismissed.
COSTS
[24] If the issue of costs cannot be resolved, I direct that the party seeking costs deliver written submissions to my office within 15 days of the release of this Endorsement with responding submissions to be delivered to my office within 15 days thereafter. The written submissions are not to exceed three typewritten, double spaced pages, excluding the Bill of Costs and Costs Outline.
MacPherson J.
Released: February 7, 2014
COURT FILE NO.: 54162/13
DATE: 2014/02/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FIELDING ESTATE WINERY
Plaintiff/Respondent
- and -
EARL WALTERS and E. WALTERS FARMS
Defendants/Appellants
REASONS FOR JUDGMENT
MacPherson J.
Released: February 7, 2014