Superior Court of Justice - Ontario

CITATION: Gallant v. Dugard, 2016 ONSC 7319

COURT FILE NO.: 638/16

DATE: 2016-11-23

RE: GREGORY GALLANT, Applicant

AND:

COLLEEN CASSANDRA DUGARD and THOMAS ALFRED DUGARD, Respondents

BEFORE: Gray J.

COUNSEL: Maggie Scull, Counsel for the Applicant Deborah R. Squires, Counsel for the Respondents

HEARD: November 22, 2016

ENDORSEMENT

[1] The applicant and the respondents live next door to each other on Trafalgar Road in Oakville. They live an old part of the Town that has been designated as the Trafalgar Road Heritage Conservation District. According to the Town, the District comprises a unique collection of heritage buildings and landscapes that have resulted from a century and a half of social, economic, natural and physical changes. Among other things, the Town’s objective is to maintain and preserve individual trees, treelines and grass boulevards within the District. There are many mature trees throughout the District.

[2] On the property line between the properties owned by the applicant and the respondents sits a tall, mature, black walnut tree. It has been substantially trimmed on the applicant’s side, so that there are few branches actually encroaching over the space above the applicant’s property.

[3] As a mature black walnut tree, the tree produces nuts. They are rather large, about the size of a baseball and weigh between 18 and 23 grams. As they ripen, they fall from the tree. Some fall on the applicant’s property. Indeed, the applicant says that in some years he has collected over 600. Some of them fall on the applicant’s roof and, according to the applicant and his common law partner, the sound of the nuts on the roof sometimes wakes them up.

[4] While there is some minor dispute about this in the evidence, it would appear that the falling of the nuts occurs for a period of about three to five weeks each year. I will take the average as four weeks.

[5] In this particular year, hardly any nuts have fallen. The applicant’s arborist says that is because black walnut trees do not always produce nuts. In some years, they produce almost none. However, in other years they produce many nuts.

[6] The applicant says, and his arborist confirms, that he has pruned the tree as much as it can be pruned, so as to minimize the nuts that fall on his property. Any further pruning will not reduce the number of nuts that will fall on his property. He has considered other potential ways of reducing the nuts, such as using a net, but they are either too expensive or not practical.

[7] The applicant approached the respondents and asked for permission to cut the tree down. The respondents declined.

[8] If the tree is to be removed, it will require the approval of the Town of Oakville. Depending on the size of the tree, the degree of approval required will be different. The larger the tree, the more stringent the requirements for approval will be.

[9] The applicant seeks an order from the court requiring the respondents to execute whatever form is required by the Town of Oakville for permission to remove the tree, and a mandatory injunction requiring the respondents to remove the tree. In the alternative, he seeks an order permitting him to remove the tree and requiring the respondents to contribute one-half of the cost.

[10] The applicant bases his claim on the law of nuisance. The applicant says the existence of the tree causes a substantial interference with his use and enjoyment of his property. Specifically, the nuts falling from the tree cause interference with his enjoyment by waking up the applicant and his partner when the nuts fall on the roof of his house.

[11] The respondents submit that there is no substantial interference with the applicant’s use and enjoyment of his property, and in any event any such interference is not unreasonable.

[12] The leading case on the principles of nuisance in Canada is Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594. The case was actually an injurious affection case, which originated at the Ontario Municipal Board, where the appellant claimed damages for injurious affection under the Expropriations Act arising out of the relocation of a highway. Under that Act, compensation for injurious affection can be claimed if the claimant can meet three requirements:

i. the damage must result from action taken under statutory authority;

ii. the action would give rise to liability but for that statutory authority; and

iii. the damage must result from the construction and not the use of the works.

[13] By the time the case reached the Supreme Court of Canada, the only issue was whether the action would give rise to liability but for the statutory authority under which the work was done. The question then became whether the appellant could have successfully sued for damages caused by construction under the law of private nuisance. Cromwell J., for a unanimous court, gave extensive consideration to the principles of private nuisance.

[14] At paras. 18 and 19, Cromwell J. stated:

The Court of Appeal concluded that a nuisance consists of an interference with the claimant’s use or enjoyment of land that is both substantial and unreasonable: paras. 79-80. In my view, this conclusion is correct.

The elements of a claim in private nuisance have often been expressed in terms of a two-part test of this nature: to support a claim in private nuisance, the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances.

[15] There have been relatively few cases that consider the issue of nuisance as it relates to natural-growing trees. I have found none that deal with naturally-growing things, such as fruit or nuts, falling from trees. In the main, cases have arisen where it is alleged that falling trees have damaged property, or where roots of trees have damaged things like drains or swimming pools: see Freedman v. Cooper (2015), 2015 ONSC 1373, 124 O.R. (3d) 793 (S.C.J.); Doucette v. Parent, [1996] O.J. No. 3493 (Gen. Div.); Bottoni v. Henderson (1978), 1978 CanLII 1278 (ON SC), 21 O.R. (2d) 369 (H.C.J.); Yates v. Fedirchuk, 2011 ONSC 5549, [2011] O.J. No. 4718 (S.C.J.); Hayes v. Davis, [1991] B.C.J. No. 635 (C.A.); and Wallace v. Joughin, 2014 BCPC 73. However, I see no reason why the ordinary principles of nuisance ought not to be applied to the situation before me.

[16] As noted, the issue is twofold: whether the interference with the applicant’s use or enjoyment of his property is substantial; and, if it is, whether the interference is unreasonable. Reasonableness is not considered unless and until the threshold of substantial interference is met.

[17] In determining the reasonableness issue, regard must be had to the character of the neighbourhood in which the interference with the plaintiff’s use and enjoyment of his or her property is taking place. What may be quite reasonable in an area where heavy industry is located may be unreasonable in a quiet residential neighbourhood. As stated by Hodgins J.A. for the Ontario Court of Appeal in Oakley v. Webb (1916), 1916 CanLII 497 (ON CA), 38 O.L.R. 151 (C.A.), at page 157:

The character of the neighbourhood is an important element in determining the standard of comfort which may be insisted upon. This strip along the railway right of way has been excluded by the municipal authorities from the adjoining residential area. It offers facilities for sidings, and is perhaps the only spot within a large area where shops may be put. It includes a somewhat unpleasant and unsightly storage-yard within its boundaries. Those who settled there must and do accept the railway noise and smoke as part of the conditions of their residence; and the indifference of all those who live nearby to the discomforts caused by the operation of freight and passenger trains is significant of the dulling effects of constant familiarity with the clatter and smuts regularly distributed by those agencies. Levy, one of the appellant’s witnesses, says that the block is a business block.

[18] In this case, I do not think the applicant meets either branch of the test. I do not think any interference with his use or enjoyment of his property is substantial, and I do not think any such interference is unreasonable.

[19] Assuming 600 nuts per year fall on the applicant’s property, the applicant does not say all 600 fall on his roof. In fact, he does not give any estimate as to how many do so. From the photographs filed, I draw the inference that whatever number do fall on the roof it is nowhere close to 600. It is likely a small fraction of that.

[20] Nuts do not fall every year. According to the arborist, there will be years when almost none fall. This year happens to be one of them. There will be greater or smaller numbers every year.

[21] Nuts seem to fall for a period of between three and five weeks. Assuming an average of four weeks, the period during which they fall is less than ten per cent of the entire year.

[22] There were two sets of owners of the applicant’s property prior to his acquiring it in 2009. According to the respondents, the prior owners never complained about nuts falling on their property, and in particular never complained about noise on the roof. The applicant says he did some remodelling of the upper floor, and he and his partner now sleep in a room right under that portion of the roof where the nuts fall. I do not think it would be too great an inconvenience if they slept in a different part of the upper floor during the brief period when the nuts fall on the roof.

[23] I do not think any interference with the applicant’s use or enjoyment of his property is substantial.

[24] On the assumption that it is, however, any such interference is not unreasonable.

[25] The applicant chose to purchase a house in a district in Oakville that is heavily populated by trees. The Town of Oakville and its residents take great pride in the Town’s trees, and take steps to preserve them. The community as a whole wishes to preserve the trees in this historic district.

[26] It is not unreasonable, in my view, for the applicant to tolerate the degree of interference with his use and enjoyment of his property that is reflected in the evidence, having regard to the particular neighbourhood in which he resides, and having regard to the position of the Town and its residents with respect to the Town’s trees in this historic district.

[27] For the foregoing reasons, the application is dismissed.

[28] As agreed at the hearing of the application, the respondents will have costs fixed in the amount of $7,500, all-inclusive.

Gray J.

Date: November 23, 2016